Wisconsin students with disabilities often denied public school options

Wisconsin lets public schools reject applications of students with disabilities who seek transfers across district lines — a form of exclusion courts have upheld.

Wisconsin Watch

June 14, 2023

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An illustration shows a school bus driving along a road that forks toward three different stylized school buildings with central clock towers topped with flags, with Road Closed barrier signs blocking each branch.

Roughly 70,000 Wisconsin students attend public schools outside their home districts through open enrollment. The program allows students to apply to better-resourced public schools outside of district boundaries. But those schools can limit or deny slots for out-of-district students with disabilities. (Credit: Amena Saleh / Wisconsin Watch)

Wisconsin Watch

By Mario Koran, Wisconsin Watch

This article was first published by Wisconsin Watch.

After a long and frustrating search, Beth Wisniewski felt like she found a haven for her son in Penfield Montessori Academy — a Near West Side Milwaukee charter school that serves children with and without disabilities.

Wisniewski’s son, Henry, was born with Down syndrome. As he approached school age, Wisniewski and her husband toured private schools, traditional public schools and charter schools — those that are publicly funded but independently operated. But no matter the school model, the Milwaukee couple walked away with the same message: Henry was not wanted.

“Every place we went we had to explain that our son was worthy, as if we had to sell the school on our son,” Wisniewski said. “You feel less than, like there was no place that welcomed him the way he is.”

The family finally found Penfield, which centered its vision for the school on students with disabilities. Penfield Children’s Center — a taxpayer-funded nonprofit that serves young children and infants with developmental delays and other disabilities — opened the school in 2016 for children who aged out of the center.

“(At Penfield) we’ve never had to apologize for where my child is at, developmentally. He’s truly welcomed by everyone,” Wisniewski said, pointing to the school’s teachers, therapists and specialists to support students with special needs.

But that support may vanish. Penfield’s board in April abruptly announced the school would shutter at the end of the year, citing long-term financial pressures and surprise building repair bills.

Absent a long-shot plan to save Penfield, the closure means families must find a new school for the next year — whether returning to their home district public school or trying to navigate a state school choice system that offers few options for students with disabilities.

Public schools must serve all students living within their boundaries, including those needing special accommodations. But not all neighborhood schools are equally staffed or resourced to meet the needs of students with disabilities.

In theory, Wisconsin families have a variety of options. But those options often exclude students with disabilities.

Such students could apply to attend a private school with the help of a taxpayer-subsidized voucher, a program that enrolls 52,000 students across Wisconsin. But such private schools also are allowed to expel a student with disabilities if officials determine they cannot meet that child’s needs.

Charter schools elsewhere have been accused of denying entrance to students with disabilities — either because they cost too much to accommodate or because their test scores could lower the school’s average. The practice is commonly known as “cherry picking” students.

Less talked about, however, is how the state’s biggest choice program, open enrollment, excludes students with disabilities. Roughly 70,000 Wisconsin students attend public schools outside their home districts through the 25-year-old open enrollment program. It allows students to apply to better-resourced public schools outside of district boundaries. But those schools can limit or deny slots for out-of-district students with disabilities.

Wisconsin districts in 2021-22 received 41,554 open enrollment applications, about 14% of which represented students with disabilities, Wisconsin Department of Public Instruction data show. Schools rejected about 40% of applications in that category, with lack of special education space as the most common reason for the denials. By comparison, school districts rejected only 14% of applications from students without disabilities.

In 2022, for example, one suburban Madison district announced 115 slots for incoming open enrollment students — but none for children with disabilities.

The denials tie students to their home district school, underscoring how a child’s ZIP code shapes opportunities. The effect is compounded for students with disabilities.

Problem’s root: Special education funding gap

Joanne Juhnke, an advocacy specialist for Disability Rights Wisconsin, said the fundamental problem is the gap between the cost of special education services and how much the state reimburses school districts. Despite years of lobbying from disability rights advocates, Wisconsin reimburses school districts only 30% of special education costs — one of the lowest rates in the nation.

Over the past five decades, state funding support for special education has declined precipitously. That forces districts — which must abide by revenue caps set by the state — to take money from the regular education budget to pay for services for students with disabilities.

“Wisconsin is currently at something of a crisis point,” Juhnke said. “The funding problem is something we have not managed to move the needle on very far.”

A map with the title "Wisconsin's Special Education Funding Crunch" an school district-level map of the state has this description: "This map shows the amount of unfunded special education per pupil costs in Wisconsin school districts after accounting for state and federal funding."

The New Jersey-based Educational Law Center, a nonprofit that advocates for equal educational opportunity and education justice, produced this map to accompany its October 2022 report titled: “Wisconsin’s special education funding crunch: How state underfunding disproportionately harms students in high-poverty districts.”

Abigail Swetz, communications director for the state’s Department of Public Instruction, said Wisconsin’s “abysmal” funding for special education could indeed impact open enrollment decisions.

“It is my fervent hope that open enrollment decisions would not hinge on the status of a student’s (plan for additional accommodations), and yet I would be shocked if budgetary concerns did not impact open enrollment decisions. Districts need to pay their bills,” said Swetz.

Some experts say the state could make the system more inclusive by following Minnesota, which prohibits school districts from rejecting students with disabilities due to resource constraints.

“This policy in Wisconsin may not be illegal, but it’s absolutely inequitable,” said Jennifer Coco, senior director of strategy and impact at the Center for Learner Equity, a national nonprofit headquartered in New York.

“If we pride ourselves on advancing equity for kids in the state of Wisconsin, this isn’t it — for a multitude of reasons. It’s discrimination with a lowercase d.”

Schools limit admissions for students with disabilities

Milwaukee Public Schools saw about 3,400 more students transfer out than in for the 2021-22 school year, more than any other district, as many families headed to nearby suburban schools. The movement flows in both directions, and open enrollment helps some districts make up for shrinking in-district enrollment by attracting outside students and their attendance dollars.

The open enrollment process begins each January, when school boards determine how many outside students they’ll accommodate the following year. Seats are specifically reserved for students who have disabilities and those who don’t.

Families can apply to attend out-of-district schools between early February and April. Parents learn of the decision by early June.

While the process allows districts to avoid overcrowding classrooms by capping the number of incoming students, it can also shut doors to students who have disabilities, with districts citing a lack of space to serve them.

Verona schools made no space for students with disabilities

In 2022, Verona Area School District, southwest of Madison, announced it would welcome 115 open enrollment students, the most in a decade. But the district reserved zero spots for students with disabilities, citing a gap between the cost of special education services and state reimbursements.

“This is nothing but discrimination against students with special needs and students with disabilities,” longtime disability rights attorney Jeff Spitzer-Resnick told Isthmus at the time.

Spitzer-Resnick’s chief concern, he later told Wisconsin Watch: that the district claimed to lack space for students with disabilities before analyzing applicants’ individual learning needs.

While some children have medically-sensitive disabilities that are expensive or complicated to accommodate, most students with disabilities are taught in regular classrooms alongside their peers, said Spitzer-Resnick. And many of their needed accommodations cost little to implement.

“If a student needs extra time on a test because they have ADHD, that’s literally a zero cost item,” he said.

School districts aren’t required to offer evidence of a lack of space for students with disabilities unless a parent appeals a denial. In most cases, parents never see the analysis behind a school district’s decision.

State data do not capture the untold number of parents who abandon the application process, assuming their child will be rejected due to a disability.

“We saw they weren’t offering seats for students with disabilities, so we didn’t even bother submitting an application,” Wisniewski said of one school district the family considered before finding Penfield.

Habitually truant, disciplined students face rejection

Disabilities aren’t the only reason students are rejected from open enrollment. A smaller number of students were rejected because they were considered habitually truant or faced previous expulsions — categories that can disproportionately exclude students from low-income families, who are more likely to struggle with transportation; or students of color who are overrepresented in discipline data.

Black students with disabilities in Wisconsin, for instance, are roughly 6.7 times more likely than white students to be removed from the classroom for disciplinary reasons, according to a state analysis.

Author Tim DeRoche details in his book A Fine Line how school attendance boundaries often correlate to families’ income and race, a pattern he calls educational redlining. He says Wisconsin’s open enrollment law has a “loophole” that allows a public school to categorically deny open enrollment to a child who has a disability, no matter how minimal the services that child requires.

“This means that kids with disabilities are really at the mercy of one district, and that district may or may not have the ability — or desire— to meet the child’s needs,” DeRoche said.

“It’s not right for a child to be denied enrollment at a public school because of where his or her family lives,” he added. “Our system of district boundaries and attendance zones means that the best or most coveted public schools are often only available to families that can afford a home in the most expensive part of town.”

Courts uphold open enrollment rejections

Wisconsin’s open enrollment system has already survived scrutiny in federal courts.

The Wisconsin Institute of Law and Liberty (WILL), a conservative law group, in 2014 launched a lawsuit against the state and five southeast Wisconsin school districts on behalf of several students with disabilities who faced open enrollment rejections, citing lack of space. One Racine family was rejected by school districts 12 times over five years based on their child’s disability, according to court documents.

WILL took the case after hearing from numerous families that the state’s open enrollment system left children stranded in schools that didn’t work for them, Libby Sobic, an attorney for the families, told Wisconsin Watch.

The state, WILL argued, essentially created a two-tiered system allowing school districts to reject students based on their disabilities.

But siding with the state, U.S. District Judge William Conley ruled the system did not illegally discriminate, because districts may allocate space based on a “nuanced analysis” of available resources. While school districts must serve all students living within their boundaries, federal law does not require districts to expand or “fundamentally alter” its program to accommodate students who live outside their boundaries, Conley ruled in 2017.

Sobic rejects the judge’s rationale, pointing out that school boards allocate space before knowing how many students are applying or their particular needs.

“How can you do a nuanced analysis after you’ve already determined in January that you have no seats when students have disabilities?” Sobic said. “I don’t think in practice that ‘nuanced determination’ happens. I’ve sat through school board meetings where they’ve set these numbers, and it’s very rarely a discussion.”

But the 7th Circuit U.S. Court of Appeals affirmed Conley’s ruling in 2019, writing that “differential treatment of special-needs students doesn’t make the program unlawful.”

Minnesota transfer system seen as more inclusive

Still, the Legislature could change the open enrollment process, Sobic said, pointing to Minnesota as a model for a more inclusive open enrollment system. Unlike Wisconsin, Minnesota prohibits school districts from considering a student’s disability when weighing a transfer.

A 2021 WILL report calls for a year-round open enrollment application window and increased transparency in decision making. While it’s difficult to measure the specific impact on Wisconsin school districts due to data limitations, research shows that open enrollment tends to increase racial and economic integration, the report said.

Juhnke, the disability rights advocate, said Wisconsin must revamp the way it funds special education more broadly. Gov. Tony Evers wants to increase state special education reimbursement from about 30% to 60% of a district’s costs. But Republican leaders in the Legislature have questioned the size of that increase and called to expand the state’s private school voucher program.

Voucher-subsidized private schools that accept students with disabilities can currently receive up to 90% of special education costs through a special reimbursement program.

“Any solution or improvement to the open enrollment program has to reckon with the overall state funding challenges for education for students with disabilities,” Juhnke said. “For real equity, we ought to be reimbursing school districts statewide up to 90%.”

Swetz, the DPI spokesperson, said the agency hopes the proposed funding increase will land in the final budget, considering the proposal’s historic bipartisan support. In 2019, the bipartisan Blue Ribbon Commission on School Funding established under then-Gov. Scott Walker recommended increasing special education reimbursement to 60%.

“This is an incredible opportunity for our Legislature to make a huge difference in the lives of every kid in Wisconsin,” said Swetz.

Sen. Howard Marklein, R-Spring Green, co-chair of the Republican-led budget-writing Joint Finance Committee, declined to comment.

Penfield Montessori Academy parents fight for their school

Back at Penfield, parent Amy Scales said news of the school’s closing unleashed chaos at her home, where her overwhelmed children cried and threw toys. Penfield students volunteered to sell prized possessions to keep the school afloat, Scales said.

“It’s heartbreaking,” said Amy’s husband, Martice. “As a parent it makes you feel like you’ve failed them,” he said.

Losing the school would drastically alter the daily routine of Nicole Kirk, whose daughter attends Penfield and lives close enough to walk. Penfield was also a sanctuary for Kirk’s niece, who 10 years ago suffered burns to 75% of her body in a house fire.

“She had to relearn everything after the fire, but she’s doing fantastic now,” Kirk said, crediting the speech, occupational and physical therapists who worked with her at Penfield.

Parents are still fighting to save their school.

As the April meeting unfolded at the school, leaders from Adeline Montessori, a similar charter school in Oconomowoc, announced they were exploring a plan to fold Penfield into their school, operating it as a satellite campus.

Parents have since launched a plan to raise money for the effort. They hope to quickly gather $1 million to move forward over the summer, Scales said. But the outcome is far from certain. They also need to find a building and retain enough students and staff for the plan to be viable. Penfield principal Michelle Ravin declined to comment on the progress.

Meantime, parents know they must confront the possibility of losing Penfield.

Milwaukee Public Schools officials are offering to help families search for a new school within the district. But some families don’t see that as a viable option.

“My experience with neighborhood schools is that if you’re struggling, too bad, it’s your fault,” said Penfield parent Cassie Johnson. “Penfield is amazing, it’s a collaborative environment, instead of shaming kids.”

Johnson, like her children, is autistic and has attention deficit disorder. A traditional “public school is not an option for us,” she said.

“If the new school doesn’t happen for us, we’ll likely homeschool, at least for the next year,” Johnson said. She worries less for her own family, and more for the students who need higher levels of support, many of them Black and brown, who would have to find new schools.

“People should be able to make choices that are best for their kids — not made to leave schools or to homeschool instead or be forced into situations that don’t work,” she said. “That only traumatizes kids.”

The nonprofit Wisconsin Watch collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

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