School districts across Wisconsin have adopted new or modified existing modes of instruction to address the effects of the COVID-19 pandemic.  For instance, many school districts now offer virtual options that did not exist at the start of 2020.  Even though the 2020-2021 school year is not half over, a critical deadline looms for the 2021-2022 school year.  School boards that intend to limit the number of open enrollment spaces available in their schools, grades, classes, programs, and services for general and special education must take action during a board meeting in January of the prior school year.  Therefore, school boards that want to limit open enrollment for the 2021-2022 school year must approve those limits during a board meeting in January 2021.

As a first step to establish space limitations, administrators should review the Board policy to ensure that the language authorizes the school board to deny open enrollment applications based on space availability.  Administrators should also note whether the Board policy guarantees approval for currently attending students and/or currently attending students’ siblings.

After reviewing the Board policy, administrators should review the capacity in the school district’s schools, grades, and classes, as well as the capacity in the school district’s special education programs and services currently offered.  Ordinarily, administrators determine the available space by considering factors, such as class size limits, student-staff ratios, staff caseloads, and projected enrollment for general education.

During the 2020-2021 school year, some school districts were inundated with open enrollment applications from parents seeking in-person or virtual programs not offered by their resident school districts.  In January 2020, when school districts set space limitations, no one could predict the significant impact of COVID-19 on school districts.  As a result, many school districts did not set space limitations and, therefore, could not deny open enrollment applications based on a lack of space.  Instead, school districts had to rely on other criteria to deny open enrollment, if possible, or approve the open enrollment applications.

During the 2021-2022 school year, administrators should consider how social distancing and other requirements designed to reduce the potential spread of COVID-19, impacts the school district’s operations.  Social distancing and the use of smaller student cohorts/class sizes will likely reduce the building and classroom capacity when calculating available space.  School districts may wish to plan conservatively and assume that these practices will continue during the 2021-2022 school year.

Conversely, administrators should also consider how alternative modes of instruction, such as virtual programs, if offered during the 2021-2022 school year, would likely increase a school district’s capacity to accept open enrolled students.  Administrators and school boards should evaluate their virtual program’s student capacity.  Depending on the virtual program’s structure, the school district’s capacity to accept open enrolled students may be almost unlimited.

A school district offering a virtual program could use its virtual program to accept all open enrollment applications without setting space limitations for general education grades and programs.  Parents and students apply for open enrollment to a school district, not to a specific school or program.  Applicants may indicate a preferred school or program, but the nonresident school district is responsible for assigning the student to a school or program.  Further, parents and students cannot appeal the nonresident school district’s school or program assignment to the Department of Public Instruction (DPI).  Therefore, a nonresident school district can avoid DPI appeals by accepting all open enrollment applications and assigning students to its virtual program even though the parent or student indicates a preference for the student attending in-person.

It is still advisable for school districts to consider setting space limitations for its special education programs and services, even if the capacity of the school district’s virtual program is unlimited.  A nonresident school district is responsible for implementing a student’s individualized education program (IEP) once it approves the open enrollment application.  However, some IEPs may be difficult or impossible to implement in a virtual setting making it an inappropriate assignment.  Further, some special education services will have limited capacity even though students attend virtually.  Therefore, school districts will need to rely on space limitations to deny open enrollment application rather than assigning them to the virtual program.

Administrators should identify all of the special education services and programs currently available in the school district, such as occupational and physical therapy, speech and language, and self-contained classrooms.  After identifying all of the available special education programs and services, administrators can assess the school district’s capacity in each.  For most programs and services, administrators should consider the special education providers’ caseload to determine available space.  DPI published a study on recommended caseloads for special education providers to guide an administrator’s evaluation.

School districts are not required to set space limitations for special education programs and services that are unavailable in the nonresident school district.  DPI considers special education programs and services that cannot be provided directly by existing school district staff to be unavailable.  For example, out-of-district placements, such as mental health day treatment, services provided by contract with a third-party, such as a local Cooperative Educational Service Agency (CESA), are unavailable in the nonresident school district.  Further, services a nonresident school district cannot provide without hiring additional staff are unavailable even if the District provides the same program or service to resident students.  A nonresident school district may deny open enrollment for students whose IEP includes those services regardless of the established space limitations.

Parents and students may file an appeal with DPI to challenge a school district’s denial of an open enrollment application based on program/service unavailability or lack of available space.  DPI will uphold a school district’s decision if the space limitations were not established and applied by the school board in an arbitrary or capricious manner.  Thus, the school board must document all of the space limitations set and the factors considered during the school board’s January meeting minutes.  It is also essential that the school district apply its space limitations consistently to open enrollment applications.

For questions regarding this article, please contact the author,

or your Renning, Lewis & Lacy attorney.

Chad P. Wade

Chad P. Wade | 833-654-1176

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