How the Legislature Can Give Special Needs Children School Choice

Closing the Special Needs School Choice Gap

Special needs children should not have the schoolhouse doors slammed shut on them solely because they have a disability. Yet this is occurring and, in some instances, state law allows it to happen. Unfortunately, special needs children do not have the same ability to choose their own school as children without disabilities. Below we highlight two school choice programs that need to be reformed by the Wisconsin legislature.

Wisconsin’s Open Enrollment Program allows children to attend a public school outside of their school district, if the school enrolls in the program. It is very popular. This year, over 55,000 children used the program to choose their own public school.  

But state law prohibits special needs children from having equal access to open enrollment, denying them public school choice. The law creates a two-track system for open enrollment: school districts can reject special needs children for open enrollment while accepting those without special needs. For example, in January 2014, Muskego-Norway School District accepted 55 children for open enrollment but specified that they have zero seats for special needs children. 


The rejection disparity between special needs (SPED) and non-special needs (Non-SPED) is highlighted above. Statewide, around 1,000 children are denied open enrollment each year solely due to their disability status. 

In 2014, on behalf of six special needs children, WILL sued the State, Superintendent of Public Instruction Tony Evers and five school districts for violations of federal disability law (the Americans with Disabilities Act) and the Equal Protection Clause of the U.S. Constitution. The case is still pending in federal court awaiting a decision.  

But the state legislature can fix this problem today. By amending Wis. Stat. § 118.51(5)(a)1 to remove the reference of seats available in “regular education” and “special education” classrooms and eliminating Wis. Stat. § 118.51(5)(a)4), school districts would not be able to deny special needs children while accepting those without special needs.

Wisconsin could also add a provision that explicitly prohibits school districts from taking disability status into account for the open enrollment program. This would be similar to Minnesota’s open enrollment program (Minn. Stat. § 124D.03(6)).  And, in fact, it would also put Wisconsin’s program in-line with the Milwaukee Parental Choice Program and Wisconsin Parental Choice Program.

The Special Needs Scholarship Program (SNSP) was a milestone in creating access to choice for special needs children. The SNSP gives special needs children access to a voucher of $12,000 to attend a private school of their choosing. The increased voucher amount helps cover the costs of special education related services. The program’s first year was a success with 206 children using the voucher.

But significant impediments must be addressed in order for any additional children to use the program.

First, state law requires special needs children to be rejected from Wisconsin’s Open Enrollment Program prior to applying for the SNSP. Think about how absurd that is and the burden it places on families. A parent must apply to attend a public school they do not want to attend, wait for a rejection (which will likely come because the open enrollment program violates the Americans with Disabilities Act), and then they are able to apply to the SNSP and search for a private school in mid to late summer. Parents don’t deserve to be subjected to unnecessary steps in order to select the best school for their child.

State law also requires children to attend a public school the year prior to applying for the SNSP. A special exception was provided for children with disabilities in the first year of the program but that will no longer be the case going forward. In other words, children in private schools are no longer eligible to enroll in the SNSP. Studies show that between 7-14 percent of children in the MPCP has a disability (School Choice Demonstration Project), yet these children will not be eligible for a special needs voucher to help the school defray the extraordinary cost of special education.    

Speaking of which, although the SNSP voucher amount of $12,000 is a good start, it is an inadequate amount to cover all the costs of special education. In fact, it is less than the roughly $14,000 per student the Milwaukee Public Schools district receives to educate children without disabilities. Public schools, of course, receive federal funding to educate children with disabilities while private schools do not.  

Special needs children deserve the same access to school choice as those without special needs. Unfortunately state law prevents this from happening. It should be fixed.

CJ Szafir is the Vice President for Policy at the Wisconsin Institute for Law & Liberty
Libby Sobic is Associate Counsel at the Wisconsin Institute for Law & Liberty

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