Arizona public policy favors school choice.  As a result, Arizona law requires school district governing boards to establish policies for open enrollment without tuition. The concept of school choice may be a good one, but the reality is that school districts have an obligation to serve all of the children residing within their district boundaries, and in these difficult budgetary times, that obligation often does not leave much room for accepting out of district students via open enrollment.  A district may appropriately deny open enrollment requests; however, districts should take certain steps to avoid (or successfully defend against) allegations of civil rights violations as a result of those denials.

The Office for Civil Rights, U.S. Department of Education (“OCR”) has investigated Arizona districts based on allegations that an open enrollment application was denied based on race, color, sex, nation origin, religion, or disability.  Setting capacities for programs, and then annually considering available capacity before accepting or denying open enrollment applications, is an important step in avoiding such complaints, particularly in the area of disability.  For example, so long as districts establish capacity for self-contained special education classes, districts are permitted to limit enrollment on the basis of that capacity.

School districts consider a variety of relevant factors in determining whether a particular school has capacity to accept resident or non-resident open enrollment students, including class size, student/teacher ratios, plant capacity, programmatic capacity, and related service provider capacity.  Arizona and federal law DO NOT require school districts to add physical facilities or hire additional faculty or staff to create extra or additional capacity for non-resident students.

Though there are no statutory rules regarding capacity in general, A.R.S. § 15-764(A)(5) does require that the governing board of each school district or county establish policy regarding pupil-teacher ratios and pupil-staff ratios for the provision of special education services.  In setting these ratios and program capacities, districts have, at times, run afoul of OCR.  Reviewing those outcomes sheds light on how to construct a capacity policy that will pass muster for OCR.

In one Arizona case, OCR determined that the district’s website and letter to parents regarding open enrollment was discriminatory.  In that case, the District has posted on its website and stated in a letter that there were approximately 100 open enrollment spaces available to students living outside of the District boundaries; however, the website and letter also stated that students with disabilities were not eligible for open enrollment because the special education programs were at capacity.  51 IDELR 111 (OCR 2008).  OCR found that the website and letter were discriminatory on their face because they “had the effect of imposing eligibility criteria that screened out or tended to screen out students with disabilities from fully and equally enjoying the District’s educational services.”  Id.

In another case, OCR found that the District discriminated against four non-resident students who applied for open enrollment where they were denied admission because the District had capped the enrollment of special education students at 10% of the total population of each grade level.  57 IDELR 110 (OCR 2011).  Again, OCR determined that the District had violated Section 504 because it failed to individually consider whether it had the resources or capacity to provide the services required by the individual students’ IEPs.  Id.

The districts’ error in these cases was, in part, that they did not consider each open enrollment application and the capacity available on an individual basis.  As OCR noted, even if the self-contained programs were at capacity, the District’s statements improperly and unnecessarily screened out applications from students who could have been accepted into general education classrooms.  51 IDELR 111.  District program capacities should be based on physical facilities, staff availability, and curriculum considerations.  Once those capacities are established, open enrollment applications for students with disabilities should be reviewed individually to determine whether the specific program sought by the student has available capacity based on an individualized review of the student’s IEP or 504 plan.

Summary of Tips: 

  • Annually set student: staff ratios for general and special education classrooms.
  • Annually consider the available capacity the District will have in each classroom based on the ratios (taking into account that the District must hold some classroom spots for students who enter the district as residents mid-year and those who are already enrolled but become eligible for special education).
  • Decisions about whether an open enrollment application for a special education student should be accepted must be based upon student’s individualized needs per their IEP.
  • Do not “caps” enrollment for students with disabilities.
  • Decisions may be based upon program capacity.
  • Ensure that the person(s) processing open enrollment applications decisions is aware of the IEP/504 status of each student.
  • If student has an IEP or 504 plan, consult the appropriate administrator and provide information about why revocation or denial of application is being considered.
  • Centralize process at district level. If there is no centralized system, carefully assess district and school resources.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Education Law Attorney, Cathleen M. Dooley at 480.461.5331, log on to udallshumway.com, or contact an attorney in your area.