Jonmaesha Beltran / Wisconsin Wa
Amy, left, and Martice Scales, are fighting to keep Penfield Montessori Academy from closing. The charter school serves children with and without disabiliies.
Wisniewski’s son, Henry, was born with Down syndrome. As he approached school age, Wisniewski and her husband toured private schools, traditional public schools and charter schools — independently operated schools drawing public funds. But the Milwaukee couple walked away with the same message after each visit: Henry was not wanted.
“Every place we went we had to explain that our son was worthy, as if we had to sell the school on our son,” Wisniewski says. “You feel less than, like there was no place that welcomed him the way he is.”
The family finally found Penfield, which centered its vision on students with disabilities when launching in 2016.
“(At Penfield) we’ve never had to apologize for where my child is at, developmentally. He’s truly welcomed by everyone,” Wisniewski says.
But that support may vanish. Penfield’s board in April abruptly announced the school would shutter at year’s end, citing long-term financial pressures and surprise building repair bills.
Absent a long-shot plan to save Penfield, the closure means families must return to their home district public school or try to navigate a state school choice system with few options for students with disabilities.
Public schools must serve all students living within their boundaries, including those needing special accommodations. But not all neighborhood schools are equally staffed or resourced to meet the needs of students with disabilities. State funding for special education has declined precipitously in recent decades.
In theory, the families of children with special needs have many choices. But not in practice.
Such students could apply to attend a private school with the help of a taxpayer-subsidized voucher, a program enrolling 52,000 Wisconsin students. But voucher schools are allowed to expel students with disabilities if officials determine they cannot meet that child’s needs.
Charter schools elsewhere have been accused of denying entrance to students with disabilities — due to the cost of accommodations or for fear of lowering test score averages.
Less talked about, however, is how the state’s biggest choice program, open enrollment, excludes students with disabilities. Roughly 70,000 Wisconsin students attend public schools outside their home districts through the program. It allows students to apply to better-resourced public schools outside of district boundaries. But those schools can limit or deny slots for out-of-district students with disabilities.
Wisconsin districts in 2021-22 received 41,554 open enrollment applications, about 14% of which represented students with disabilities, Wisconsin Department of Public Instruction data shows. Schools rejected about 40% of applications in that category, with lack of special education space as the most common reason for the denials. By comparison, school districts rejected only 14% of applications from students without disabilities.
“This policy in Wisconsin may not be illegal, but it’s absolutely inequitable,” says Jennifer Coco, senior director of strategy and impact at the Center for Learner Equity, a national nonprofit. “If we pride ourselves on advancing equity for kids in the state of Wisconsin, this isn’t it — for a multitude of reasons. It’s discrimination with a lowercase d.”
How open enrollment works
Milwaukee Public Schools saw about 3,400 more students transfer out than in last school year, more than any other district, as many families headed to nearby suburban schools. The movement flows in both directions, and open enrollment helps some districts make up for shrinking in-district enrollment by attracting outside students and their attendance dollars.
The impact on Dane County school districts varies dramatically. The Madison Metropolitan School District lost a net of nearly 900 students to open enrollment last year, while the McFarland School District netted more than 4,200 students, more than any other Wisconsin district, largely due to virtual charter school offerings.
Madison rejected five or fewer open enrollment applications. McFarland denied 424 applications, state data show — including 177 for reasons related to special education.
The open enrollment process begins each January, when school boards determine how many students they’ll accommodate the following year. Seats are specifically reserved for students who have disabilities and those who don’t.
Families can apply to attend out-of-district schools between early February and April. Parents learn of the decision by early June.
While the process allows districts to avoid overcrowding classrooms by capping the number of incoming students, it can also shut doors to students who have disabilities, with districts citing a lack of space to serve them.
Source: Educational Law Center
Verona schools made no space for students with disabilities
In 2022, the Verona Area School District announced it would welcome 115 open enrollment students, the most in a decade. But the district reserved zero spots for students with disabilities, citing cost concerns.
“This is nothing but discrimination against students with special needs and students with disabilities,” disability rights attorney Jeff Spitzer-Resnick told Isthmus at the time.
Spitzer-Resnick’s chief concern, he later told Wisconsin Watch: that the district claimed to lack space for students with disabilities before analyzing applicants’ individual learning needs. The Verona district went on to deny 96 open enrollment applications last school year, with 20 related to special education.
While some children have medically sensitive disabilities that are expensive or complicated to accommodate, most students with disabilities are taught in regular classrooms alongside their peers, says Spitzer-Resnick.
“If a student needs extra time on a test because they have ADHD, that’s literally a zero cost item,” he says.
School districts aren’t required to prove a lack of space for students with disabilities unless a parent appeals a denial. State data do not capture the untold number of parents who abandon the application process, assuming their child will be rejected due to a disability.
“We saw they weren’t offering seats for students with disabilities, so we didn’t even bother submitting an application,” Wisniewski says of one school district the family considered before finding Penfield.
Habitually truant, disciplined students face rejection
Disabilities aren’t the only reason students are rejected from open enrollment. A smaller number of students were rejected because they were considered habitually truant or faced previous expulsions — categories that can disproportionately exclude students from low-income families, who are more likely to struggle with transportation; or students of color who are overrepresented in discipline data.
Black students with disabilities in Wisconsin, for instance, are roughly 6.7 times more likely than white students to be removed from the classroom for disciplinary reasons, according to a state analysis.
Author Tim DeRoche details in his book A Fine Line how school attendance boundaries often correlate to income and race. He says Wisconsin’s open enrollment law allows a public school to categorically deny open enrollment to a child who has a disability, no matter how minimal the services that child requires.
“Kids with disabilities are really at the mercy of one district, and that district may or may not have the ability — or desire — to meet the child’s needs,” DeRoche says. “The best or most coveted public schools are often only available to families that can afford a home in the most expensive part of town.”
Courts have upheld Wisconsin’s open enrollment system in response to a 2014 lawsuit on behalf of students with disabilities who faced rejections. “Differential treatment of special-needs students doesn’t make the program unlawful,” the 7th Circuit U.S. Court of Appeals ruled in 2019.
Still, the Legislature could change the open enrollment process, says Libby Sobic of the Wisconsin Institute for Law and Liberty, which filed the lawsuit.
She points to Minnesota as a model for a more inclusive system. It prohibits school districts from considering a student’s disability when weighing a transfer.
Special education funding gap
Wisconsin must revamp the way it funds special education more broadly, says Joanne Juhnke, an advocacy specialist for Disability Rights Wisconsin. “Any solution or improvement to the open enrollment program has to reckon with the overall state funding challenges for education for students with disabilities,” she says.
Wisconsin reimburses school districts only 30% of special education costs — one of the lowest rates in the nation. The gap forces districts — which must abide by revenue caps set by the state — to take money from the regular education budget to pay for special educational services.
Abigail Swetz, communications director for the state’s Department of Public Instruction, says Wisconsin’s “abysmal” funding for special education could impact open enrollment decisions.
“I would be shocked if budgetary concerns did not impact open enrollment decisions. Districts need to pay their bills,” says Swetz.
Gov. Tony Evers wants to increase state special education reimbursement from about 30% to 60% of a district’s costs. Republican leaders have questioned the size of that increase and called to expand the state’s private school voucher program.
Voucher-subsidized private schools that accept students with disabilities can currently receive up to 90% of special education costs through a special reimbursement program.
Swetz says her agency hopes the proposed funding increase will land in the final budget, considering the proposal’s historic bipartisan support. In 2019, the bipartisan Blue Ribbon Commission on School Funding established under then-Gov. Scott Walker recommended increasing special education reimbursement to 60%.
Sen. Howard Marklein, R-Spring Green, co-chair of the Republican-led budget-writing Joint Finance Committee, declined to comment.
Penfield Montessori Academy parents fight for their school
Penfield parent Amy Scales says news of that school’s closing unleashed chaos at her home, where her children cried and threw toys. Students volunteered to sell prized possessions to keep the school afloat, she adds.
“As a parent it makes you feel like you’ve failed them,” says Amy’s husband, Martice.
But parents are still fighting to save their school.
Leaders from Adeline Montessori, a similar charter school in Oconomowoc, in April announced they were exploring a plan to operate Penfield as a satellite campus.
Parents hope to raise $1 million this summer to move forward with the plan, Scales says. But they must first find a building and retain enough students and staff for the plan to be viable.
Still, they must confront the possibility of losing Penfield.
Milwaukee Public Schools officials are helping some families search for a new school within the district. But others don’t see that as an option.
“If the new school doesn’t happen for us, we’ll likely homeschool, at least for the next year,” Penfield parent Cassie Johnson says. She worries less for her own family, and more for the students who need even more support.
Says Johnson: “People should be able to make choices that are best for their kids — not made to leave schools or to homeschool instead or be forced into situations that don’t work.”
Wisconsin Watch is a nonprofit, nonpartisan investigative newsroom.
