Defending an open enrollment appeal
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Defending an Open Enrollment Appeal. Step 1: Make a Good Decision Step 2: Explain It. About Appeals. A parent may appeal a school board’s open enrollment denial to the DPI… … within 30 days of the date the notice is postmarked or delivered to the parent.

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Defending an open enrollment appeal

Defending an Open Enrollment Appeal

Step 1: Make a Good Decision

Step 2: Explain It


About appeals
About Appeals

  • A parent may appeal a school board’s open enrollment denial to the DPI…

  • …within 30 days of the date the notice is postmarked or delivered to the parent


When an appeal is filed dpi will
When an Appeal is Filed DPI will..

  • Notify district of appeal and send copy of appeal.

  • Establish schedule for submission of record of decision and briefs:

    • 2 weeks for record.

    • 10 days for briefs.

    • 7 days for response briefs.



Dpi s review decision
DPI’s Review & Decision party!!

  • DPI’s decision will be based on the record of the decision and written argument by the parties.

    • No ex parte communication.

  • The DPI is required to uphold the school board’s decision unless it finds the decision was arbitrary or unreasonable.



Step 1 make a good decision

Defending an Appeal party!!

Step 1:Make a Good Decision


Elements of a good or bad decision
Elements of a party!!Good (or bad) Decision

  • State Law

    • Wis. Stats. § 118.51

    • Wis. Adm. Code ch. PI 36

    • Court Decisions

  • Policies

  • Written Criteria

  • Written Procedures

  • Implementation

  • Documentation


Policies
Policies party!!

  • Are your school board policies current?

  • Do they comply with state law?

  • Do they accomplish what you wish them to accomplish?

  • Were they adopted prior to the beginning of the current application period?


Written criteria
Written Criteria party!!

  • Do you have written criteria (i.e. desired class sizes)?

  • Do they comply with state law?

  • Are they current?

  • Are they clear?

  • Are they included in board policy or at least consistent with the board’s policy?


Written procedures
Written Procedures party!!

  • Do you have written procedures for:

    • Granting preferences & guarantees?

    • Conducting random selections?

    • Mailing notices of denial?

    • Reviewing cost estimates?

  • Are they current?

  • Do they comply with state law?


Implementation
Implementation party!!

  • Did you follow the policies, criteria and procedures?

  • Were your decisions consistent?

  • Did you make non-arbitrary, reasonable decisions based on policies, data and facts?

  • Were your decisions mailed by the statutory deadline?


  • For individual decisions party!! (i.e. special education space & undue financial burden)

    • did you consider the student’s IEP or the cost estimate before denying the application?

  • For group decisions (i.e. space)

    • did you determine the number of available spaces prior to acting on the applications?


Documentation
Documentation party!!

  • Affidavits for random selection? For mailing notices of denial?*

  • Results of space determinations, preferences, and random selections?

  • Financial data to explain decision concerning undue financial burden?

*Even more important than before because 30 days to appeal begins when notice of denial is postmarked.


Making good space decisions

Making Good party!!Space Decisions


Statute
Statute party!!

  • District may consider availability of space in schools, programs, classes or grades within the district.

  • Must give preference to continuing students and siblings.

  • May grant guarantee to continuing students or siblings

See Wis. Stats. § 118.51 (3) (a) 2. and (5) (a) 1.


Mcmorrow requirements
McMorrow party!! Requirements

  • Determine # of available spaces

  • Grant guarantees, if permitted by policy

  • Grant preferences

  • Select remaining students randomly

  • No exceptions to space criteria

See McMorrow v. DPI, 2000 WI App 173


Policies1
Policies party!!

  • Criteria for denial may include the availability of space in the schools, programs, classes or grades within the district.

  • No policy, no denial due to space.


  • School board may consider: party!!

    • class size limits and pupil-teacher ratios

    • enrollment projections

    • may include currently-attending students and siblings in the count of occupied spaces


  • Policy party!!must include statement of required preference

    • Currently attending students and siblings are entitled to preference

  • Policy may provide that currently-attending students or siblings will be approved even if space not otherwise available


Policy problem preferences guarantees
Policy Problem: Preferences & Guarantees party!!

  • Be sure you know the difference

  • Be sure your policy reflects what you wish to do

    • Preference = first chance to an available space

    • Guarantee = acceptance even if space not available


If you wish to grant a guarantee
If you wish to grant a guarantee… party!!

…If the XYZ school board determines that space is not otherwise available for open enrollment pupils in the grade or program to which the pupil has applied, the school board may (shall?) nevertheless accept an applicant who is already attending school in the nonresident school district [and/or a sibling of the applicant].


…or party!!

The school board may (shall?) guarantee acceptance to students currently attending school in the district,

[and/or a sibling of a currently-attending student]


Policy problem improper preferences
Policy Problem: party!!Improper Preferences

  • Preferences must be granted to currently-attending students and siblings

    • No greater preference is to be granted to one over the other

  • Guarantees may be granted to currently attending students or siblings

    • May choose one or the other


  • Cannot subdivide groups, i.e.: party!!

    • all currently attending students receive preference (or guarantee), regardless of reason for attendance

    • all siblings receive preference (or guarantee), regardless of reason for attendance of the currently-attending sibling


Written criteria procedures
Written Criteria & Procedures party!!

  • If you use class sizes limits, be sure they are specified in policy or other written criteria, for example:

    • Grades K-3: 18 students

    • Grades 4-6: 20 students

    • Grades 7-8: 22 students

    • Grades 9-12: 24 students






Implementation1
Implementation selection process

  • Calculating Available Spaces Using Class Sizes



Example 1 ok
Example 1 - ok occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described.


Example 2 ok
Example 2 - ok occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described.


Example 3 ok
Example 3 - ok occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described.


Example 4 not ok
Example 4 – not ok occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described.


  • Calculating Available Spaces Using Other Criteria occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described.

    • Assignment committee

    • Building capacity (still need to use some criterion to determine spaces by grade)

    • SAGE

    • Enrollment projections


Selecting students
Selecting Students occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described.

  • Grant guarantees if provided in school board policy

  • Grant preferences

    • Currently-attending students

    • Siblings of currently-attending students

  • Select remaining students randomly following written procedures


Documentation1
Documentation occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described.

  • Open enrollment policies and administrative rules

  • Other relevant policies and administrative rules

    • Space

  • Written procedures

  • Administrative memos concerning calculation of space and selection of students


  • School board minutes occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described.

  • Results of random selection

  • Enrollment projections – include explanation




Making good undue financial burden decisions

Making Good occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described. Undue Financial Burden Decisions


Statute1
Statute occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described.

  • If the cost of the special education or related services…

  • As proposed to be implemented by the nonresident district...

  • Would impose on the resident district an undue financial burden…

See Wis. Stats. § 118.51 (12) (b)


  • In light of the resident school district’s: occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described.

    • Revenue limit,

    • Ability to pay, and,

    • Per pupil costs for children with disabilities continuing to be served by the resident district.


  • The resident district may: occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described.

    • Deny the open enrollment

    • Require an open enrolled student to return to the resident district if the cost is based on an IEP created or revised after the student has begun attending the nonresident district


Policies2
Policies occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described.

  • Not specifically required in statute, but,

  • Recommend districts adopt statutory language in policy.


Written procedures1
Written Procedures occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described.

  • UFB is a both a data-driven and procedure-driven decision. It is strongly recommended that districts establish written procedures for reviewing the cost estimates – and follow them.


Recommended procedures
Recommended Procedures occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described.

  • Review special education and related services required in IEP.

  • Review estimate provided by the nonresident school district.

    • Consider only actual, additional student-specific special education costs.


  • Are there cost “savings?” occupied spaces, be sure it is clear how/when they are included and how the additional spaces are described.

    • Subtract any costs that would have to be paid whichever district the student attends, such as:

      • Individual aide

      • Contracted services

      • Special transportation



  • Review district’s exemption? total economic circumstances

    • Use DPI form (PI 9414)

    • Gather data & cost estimate

    • Consider data on district’s total economic circumstances

    • Determine whether cost is an undue financial burden in light of total economic circumstances


Example 1
Example 1 exemption?

  • Actual additional special education cost = $15,000.

  • District reviews data and finds:

    • Enrollment has declined over past 3 years, expected to continue to decline.

    • District has cut programs and staff due to revenue limits…


  • School Board reviews estimate in light of total economic circumstances and determines cost is an undue financial burden.


  • Example 2
    Example 2 exemption?

    • Actual additional special education cost = $15,000.

    • District reviews data and finds:

      • Enrollment has increased over past 3 years.

      • District has levied less than the maximum allowed in all or some of past three years.


  • School Board reviews estimate in light of total economic circumstances and determines cost is not an undue financial burden.


  • Documentation2
    Documentation some of past three years.

    • Open enrollment policies and administrative rules

    • Written procedures

    • PI 9414

    • School board minutes:

      • Meetings considering budgets and/or adopting cuts

      • Meetings concerning open enrollment decisions


    Step 2 explain it

    Defending an Appeal some of past three years.

    Step 2:Explain it


    Submit record upon request of dpi
    Submit Record upon Request of DPI some of past three years.

    • Copy of application

    • Copy of notice of denial

    • Certified mail receipt or affidavit of mailing

    • Documentation of decision


    File a brief
    File a Brief some of past three years.

    • Statement of facts

      • Include explanation of data and documentation

        • Data do not stand by themselves

        • Don’t assume that DPI will understand the data and documentation


    • Argument some of past three years.

      • Why the district’s decision should be upheld

      • Respond to parents’ relevant arguments


    File a response brief
    File a Response Brief some of past three years.

    • Point out factual errors in appellants’ brief

    • Rebut appellants’ arguments


    Follow up
    Follow-Up some of past three years.

    • Read decision

    • Ask questions if you don’t understand decision

    • If overturned…

      • Consult school board’s attorney if you wish to appeal to circuit court

      • Make necessary changes (policy, procedures, etc.) to correct problems identified in decision


    Open enrollment web site list serve
    Open Enrollment some of past three years. Web Site & List Serve

    Open Enrollment Web Site

    www.dpi.wi.gov/sms/psctoc.html

    Open Enrollment List Serve

    • receive information and announcements

    • printed information rarely used

    • to sign up, send email to:

      [email protected]


    Open enrollment staff toll free 888 245 2732 fax 608 267 9207
    Open Enrollment Staff some of past three years. Toll-free: 888-245-2732Fax: 608-267-9207


    Department of Public Instruction some of past three years. 125 S. Webster StreetP.O. Box 7841Madison, WI 53707-7841www.dpi.wi.gov/sms/psctoc.html


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