Special Education Update: Non-Resident Enrollment Policies

Leslie A. Allen, Esq., David "Butch" Sargent, Esq. & Julie J. Weatherly, Esq., Resolutions in Special Education

OBLIGATIONS TO STUDENTS WITH DISABILITIES

Consistent with public school trends nationally, many Alabama school districts have seen student enrollment decrease since the start of the COVID-19 pandemic for a variety of reasons. Where funding often is based on student headcount, many districts hope to increase numbers by inviting students who live outside of their geographical boundaries to enroll via nonresident enrollment policies.

An important consideration when developing and implementing these policies is ensuring an understanding of the district’s obligations to nonresident students with disabilities. In Alabama, once a district accepts an out-of-district student with a disability under a nonresident enrollment policy, the accepting district becomes the district responsible for ensuring a free appropriate public education (“FAPE”) to the student. This FAPE obligation includes the provision of transportation if needed as a related service for a student with a disability. Additionally, although districts have no obligation to have a policy allowing out-of-district enrollment, if they do, that policy must not discriminate against students with disabilities with enrollment criteria that exclude students based on disability.

Let’s be honest: districts have a hard enough responsibility providing FAPE to their resident students. A nonresident enrollment policy invites FAPE obligations for even more students, and once the district takes them for enrollment, it becomes responsible for offering them FAPE. Districts working hard to provide high-quality special education services with staff who have a genuine passion for students with disabilities may find themselves flooded with nonresident students with disabilities seeking enrollment. As a consequence, it becomes more difficult for staff to continue delivering those high-quality services, which, in turn, leads to obvious legal issues for the nonresident district. Similarly, the district may find itself in legal hot water if a student denied enrollment claims disability discrimination.

Historically, the Office for Civil Rights (“OCR”) has taken considerable interest in discrimination complaints made by students with disabilities excluded from or denied enrollment under a district’s nonresident policy. In such matters, OCR looks at whether the district has a legitimate, nondiscriminatory reason for denying admission to a nonresident student. Unless the student fits an objective policy criterion for denying admission that is unrelated to disability (not left to the discretion of the Superintendent or Board), OCR recognizes only a few legitimate, nondiscriminatory reasons for denying admission to a nonresident student with a disability, particularly if nondisabled students are routinely admitted. OCR generally only recognizes lack of adequate staff and/or lack of adequate class space, supported by evidence thereof, as legitimate nondiscriminatory reasons for denying admission. OCR has also found that cost cannot be a consideration in excluding a student.

As special education counsel for Alabama districts, we generally advise caution in the process of considering or implementing nonresident enrollment policies. When refusing admission of or dismissing a nonresident student with a disability, a district must maintain documentation to support its reasons for doing so (such as lack of staff or class space), because, if a complaint is filed, OCR will investigate the reasons given, not just accept them at face value.

With more districts developing and implementing nonresident enrollment policies to boost enrollment, we expect OCR will take a closer look at how these policies impact students with disabilities. Certainly, the ability to appropriately serve students with disabilities is only one factor in the complex analysis of whether a nonresident enrollment policy is the right decision for an individual district. If your district has one, be prepared to respond to challenges if students with disabilities are denied enrollment or pursue legal remedies alleging a failure to provide FAPE.