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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
  • 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.
Decision will be sent to both parties by first class mail.
  • Most decisions are mailed end of July or in August.
  • Losing party may appeal decision to circuit court in the county in which the appellant resides.
elements of a good or bad decision
Elements of a 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
  • 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
  • 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
  • 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?
  • 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 (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?
  • 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.

  • 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 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

  • 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:
    • class size limits and pupil-teacher ratios
    • enrollment projections
    • may include currently-attending students and siblings in the count of occupied spaces
Policy 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
  • 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…

…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].


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: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.:
    • 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
  • 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
If you use class size ranges, be sure to specify to what point in the range the district will accept students, for example:
    • Grades K-3: 18-22 students.
    • The district will accept students to the bottom?, midpoint? or maximum? of the range.
If you use subjective criteria, be sure to explain what will be considered, such as:
    • class size
    • needs of students
    • experience of teachers
    • aide assignments
Building capacity is generally used if the district is denying all transfers because building capacity has been exceeded.
  • However, if limited space is available under a building capacity criterion, the district generally must still designate spaces by grade.
Be sure you have a written description of your random selection process
  • If a student is approved or selected randomly, the student’s siblings receive preference for any remaining spaces
  • Calculating Available Spaces Using Class Sizes
If you include currently-attending students in your count of 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
    • Assignment committee
    • Building capacity (still need to use some criterion to determine spaces by grade)
    • SAGE
    • Enrollment projections
selecting students
Selecting Students
  • 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
  • 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
  • Results of random selection
  • Enrollment projections – include explanation
  • 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:
    • 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:
    • 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
  • Not specifically required in statute, but,
  • Recommend districts adopt statutory language in policy.
written procedures1
Written Procedures
  • 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
  • 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?”
    • Subtract any costs that would have to be paid whichever district the student attends, such as:
      • Individual aide
      • Contracted services
      • Special transportation
Is district eligible for transfer of service revenue limit exemption?
    • If yes, cannot consider revenue limit.
Review district’s 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
  • 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…
Expenditures have exceeded revenues in recent past.
    • Further cuts expected.
  • School Board reviews estimate in light of total economic circumstances and determines cost is an undue financial burden.
example 2
Example 2
  • 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.
District revenues have exceeded expenditures over all or some of past three years.
    • General fund balance is increasing.
  • School Board reviews estimate in light of total economic circumstances and determines cost is not an undue financial burden.
  • 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
submit record upon request of dpi
Submit Record upon Request of DPI
  • Copy of application
  • Copy of notice of denial
  • Certified mail receipt or affidavit of mailing
  • Documentation of decision
file a brief
File a Brief
  • 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
    • Why the district’s decision should be upheld
    • Respond to parents’ relevant arguments
file a response brief
File a Response Brief
  • Point out factual errors in appellants’ brief
  • Rebut appellants’ arguments
follow up
  • 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 Web Site & List Serve

Open Enrollment Web Site

Open Enrollment List Serve

  • receive information and announcements
  • printed information rarely used
  • to sign up, send email to:


Department of Public Instruction125 S. Webster StreetP.O. Box 7841Madison, WI