Disabled Students Lose School Transfer Appeal

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By George Khoury, Esq. on January 24, 2019 10:25 AM

A recent Seventh Circuit Court of Appeals decision affirmed a lower court holding that the differential treatment received by disabled students seeking to transfer schools in Wisconsin is not unlawful.

Rather, as the opinion notes, Wisconsin's school district transfer program requires schools to accept transfer students if they have the "excess capacity," which is a number the school chooses based on an individual assessment of available resources, but schools have a separate "excess capacity" number for disabled students. Despite the fact that disabled students are literally competing for a different category of "excess capacity," the courts ruled that they are not being categorically discriminated against.

Equal Education

For students with disabilities, navigating the public education system can be rather difficult. While state laws generally explain that all students are entitled to an education, and federal laws mandate that disabled students be given equal opportunities, it is always easier said than done.

In Wisconsin, the transfer program is designed to help students excel by allowing them to transfer to schools that might better suit their needs. And as the court explained, most transfers are actually approved, for both disabled and non-disabled students. Each school, in January, assesses their resources, and decides how many more students it can take on. Students can then apply for transfer to a district they don't live in.

The challengers in this case allege that the fact that schools have a separate number of how many disabled students it can take is discriminatory. They also note that some schools will have no excess capacity for disabled students, while having capacity for non-disabled students. The court agreed with the state and school district that the transfer program complied with federal law and was not discriminatory because it was more about capacity and a given school's ability to comply with an IEP based on their excess resources.

Notably, one of the plaintiffs in the case had his claim for injunctive relief mooted out because his family moved into the district he sought to attend, and the school was then required to accommodate him based on his resident status.

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