allows students who live in one school district to offer if they're un satisfied with the schools in that district for any reason to apply to scoot to what another school district that has excess capacity the problem with the open  product program and the open enrollment law is that it treats students with disabilities differently than students who don't have disability it places additional obstacles in the way of students with disabilities to prevent their full participation in the program actually that's not how the statute works it's even handed everybody has to and comply with the same eligibility requirements in other words a has to be capacity in the receiving district in the educational programming that the student requires whether it's grade level programming or a special education programming there must be existing excess capacity in the nonresident districts so every applicant is treated the same and subjected to the same eligibility criteria with respect your honor i disagree with that there are four criteria were made for a nonresident district to reject the application opened moment that applicant and they're all based on the existing capacity in the receiving district to serve the educational needs of the student well of the  eighty and the rehabilitation act did not require disability blind admissions well that's the question of law in this case you're right and that's a statement of the law right so i was there are no cases that that under five a for of the statute it allows school districts to reject applications from students with disabilities and only students with disabilities section five a four priest on capacity so it's the same it's just a statement of the same eligibility criteria so your honor the v a it's all based on existing excess capacity in the receiving district to serve the educational needs of the student applicants the argument that your honor is making it of the state makes is that there is such a thing under federal law as a regular education see that there is a seat in a public school in the state of wisconsin that no child with a disability can can fill and if that argument is correct  acknowledges that there are seats in wisconsin public schools that no child with a disability no matter what the disability can fill then your honor would be right in the defendants would be right in my point is that this is not a true open enrollment program it's a limited open enrollment program based on existing excess capacity in nonresident districts it does not change the default in wisconsin that every student has a state constitutional right to attend school in his or her own resident district it adds to that this very limited ability to apply to transfer to a nonresident district if the receiving district has existing capacity to serve that student's education needs so for example if the nonresident district for a particular school year had existing capacity in the second grade but didn't have existing capacity in fourth grade and a fourth grader applied and was rejected because there was no existing capacity we wouldn't say that the fourth grader is being discriminated against correct so two if they are receiving district a nonresident district has capacity and third grade regular education but no capacity in third grade special education we wouldn't say that the special ed student applicant who was rejected because there is no capacity was being discriminated against there is an even handed criteria and it's all based on existing capacity again i respectfully disagree because there's an assumption in your honour's question that i believe this falls under the eighty eight and that is that there is such a thing as a third grade is it's the duty to accommodate right if there's a if there's discrimination going on in the first instance and a plaintive can prove the prima facia case of discrimination or discriminatory exclusion then we get to the question of accommodation and whether a proposed accommodation is going to force a fundamental alteration of the program in question so that you know we're not there yet we don't even have a case of discrimination going on here because properly understood this program applies an even handed criteria for admission which is to say there must be existing program attic capacity in the non resident school district to meet the applicants needs whether it's a need for sixth grade programming or it's a need for special ed programming counseling we ask a question i think i get at the same point that judge sykes is making and this is a struggle to try to figure out what the definition of special education is under wisconsin law is it a seat in say a special life skills classroom right in that in that sense we might be talking about a seat in a third grade classroom analogously to a special ed classroom where the kids might spend some of the day being mainstreamed but there is actually a seat that they fill in a particular classroom or does special education also encompass the third grader who may indeed be gifted and exceed academic considered in the third grade regular education classroom as the defendants characterize it because she has a hearing impairment or a slight impairment have to sit in front and maybe get some extra materials to understand  is a question that i i don't quite understand then how the program works because of the school board makes an ex ante determination and january the way the statute is written is it it seems to be talking about seats or space kind of in the life skills example that i gave where you have a special special ed classroom and then your regular third grade classroom but in the example that you're talking about where maybe there's hearing our visual impairment or the example i gave about speech therapy you're not talking about seats you're talking about maybe hours available that the speech therapist at the school has to accommodate maybe three more sessions a week or you're talking about could we move a class a seat up to the front which would be something easy and that requires a case by posts determination that the district court found here save the program because as applied to any individual student then this doing would not be discriminated based on against based on the disability but on the inability of the school district to meet that need so what is this january determination is it about seeds or is it about hair speech therapist normally has three hours a week that's not being used right now so based upon this record your honor it's only about six the statute says in january before any child has applied because children can't apply until after the first monday in february without any knowledge of who the applicants are or what disability they have the school says i have extra regular education seats in which no child with a disability no matter what the disability may said and i have why special education seats whatever the district thinks that means and that decision making process in january discriminates against children with disabilities and it cannot be changed under wisconsin law the district can't say ok now that we have the applications in february and we see that brian mcgrath is an applicant and all he has is the sight disability or the vision disability or the speech disability where he could sit in a regular education education classroom as we call it i will accept him under the regulations implement adopted by d p i in implementing this program they can't go back and change that j decision so when the decision is made by january in general for example like it was by mosquito in norway in this case they said we have fifty some regular education seats but no child with a disability no matter what the disability may sit in any of those seats and once they make that decision it has three impacts the first is you can only apply to three school districts under the open enrollment program so if you have a disability you would be discouraged from applying to miskito in norway because they've said in the beginning we will not take any child with a disability that itself is a violation second as i said they can't take that decision back it hits it once you've made the january decision you can't change it on less a circumstance occurs as follows we believe that we have forty five seats in third grade we expect to have twenty eight continuing students  so we have two openings if one of those twenty eight continuing students drop move leaves for whatever reason and now you only have twenty seven continuing students you can say that there's a third c but other than a way the january determination language works and then how it seems to be applied based on the later provision of the statute that envisions a more as applied looking at the circumstances of each case approach but is it really being clad in such a way that a child who needed soli extra time had rejected despite the services that he was getting at m p s what the time he applied to sure would he was getting no special education seat services and when he was it sure would because he was admitted until he was expelled in october he received no special education services but one sure would found out he had an eye he had a disability they kicked him out so there's a clear example where there's no indication that schroeder had had any problems educating espied they were educating him for about a month they kicked him out under five before which is the section of the open enrollment program that allows them to discriminate against children with disabilities so that's it that's a great example and this could go to our way of defending here is another they said that there are fifty seats in muskegon norway that any child in the state of wisconsin can apply to sit in except every child with a disability we will not accept their application and that  why i think that the assumption that you are making your question we disagree with because when it sets that decision in june you wear it believes that there are two different things under federal law a regular education s in which no child with a disability may sit in a special education suit but that's not what the a d f says your argument might be valid if this were a true open enrollment if the statute actually said that any child can take his st constitutional right to a sound basic education and transport it across district lines and attend any district that his parents choose that's not what this program says it's not school choice what it is is a very limited allocation of excess capacity to nonresident students what's the problem with your and it doesn't discriminate based on disability because federal law doesn't describe disability discrimination in the way that you're describing it federal law says that it's permissible to take disability into account in our case is saying that the disability is not thrown out for determining essential eligibility under the eighty eight or the rehabilitation act and so the the district is entitled to consider what the educational needs of the student are you know i disagree and if those include special ed and there's an even handed capacity determination that's made as judge barrett said ex ante there's no discrimination going on here you know i disagree with you for several reasons first as i disagree that that's what the a da says what the a p a says is that students with disabilities people with disabilities must be allowed to participate in all government programs and there's no dispute that the open on the terms of those programs you're asking for an alteration in the terms that these programs but you are asking for a seat in regular ad for a special ed students and federal law does not require that it doesn't mandate that that's the second reason i disagree with your honor because what you're saying is that a qualification to participate in open enrollment is that you would not be just say no that's not a qualification disabled students are routinely accepted under open enrollment if the receiving district has capacity and as a matter of fact a majority of the time disabled students with i e p s are accepted in nonresident districts and they were checked it only when there is no capacity in this case risky go norway had six great seats that's the state didn't test sixth grade special ed seats so but it's a capacity determination and capacity is neutral no but the capacity for is one that distinguishes as i would say discriminates between children with and without this it doesn't discriminate it does distinguish in there's a difference between those two terms legally the state is entitled to distinguish between students with different needs including students who are disabled and have a need for special education services but the state is not a to distinguish again i would say discriminate not there what would you prohibits children with disabilities to participate in a government program open enrollment precisely the way the children without disabilities participate they are permitted to but if there is existing capacity in special ed and the receiving district will admit them you know the other way i've tried to explain our position to others who talked about it is to and i've said this from the beginning of the case there are two doors by which you can enter a public school district and the first door that you enter in wisconsin is the residence right and so residents students apply to enter a public school district and everybody in this courtroom agrees that you cannot distinguish between students with disabilities and students without disabilities as they enter that so the other door is throw open enrollment child who tries to enter through that door the defendant's assert can be barred or blocked because she has a disability and there's no doubt right that these three plaintiffs were not allowed to participate in open enrollment because they're disabled now your honor cutter said as there was no capacity are you challenging whether these districts had capacity because i thought there was there was no capacity it didn't have the programs and they didn't have the space well so let's again look at these three students there was capacity for s b because he was sitting in a seat when he got expelled there was capacity for r w because he was accepted in this because identical twin brother was accepted into kindergarten until they found out that argument w was disabled and then they revoked it and there were six cameras six or eight seats in sixth grade for pm and he was excluded so the point of those decisions is that those six seats you cannot have an i p n n roll and and this would be true for a kindergartner who's special it needs were discovered upon involvement the child may not have one but the child if the child is autistic say if the child has severe t the child might still require more resources than the other you know regular or typical sixth grader because the teacher can't handle the needs right that the behavior or the extra learning assistance that's needed even if the parents haven't pursued and i e so it could be right that sure what provokes its admission of s be not because it says oh you're disabled we don't want you because it says regardless of whether you had a  handle you because of whatever behaviors or needs you have in the classroom we just don't have the resources so there's no evidence in the record that that was a decision that was made i would like to save some time for rebuttal so i'd like to make one last point and save the rest of the time  for rebuttal and my last point is to be clear upon what we're arguing we're arguing that under the open enrollment program students without disabilities should be at mit in the same way of students without disabilities then the school district of the eighty eight would offer them a reasonable accommodation for their disability and if and then that the parents would accept it or not but if the accommodation resulted in a fundamental alteration of the program then they would not have to provide that accommodation to the students so that met offer a reasonable commendation and then do the fundamental alteration as a rat works a fundamental alteration of the program  you're asking for a rewrite of state law i'm asking the state law not discriminate against children with disabilities and with the court's permission i would say the remainder of my time for a bo me please the court my name is anthony recently i know i represent the state defendants the department of public instruction and the state superintendent and we're involved in this lawsuit on the level i think most of the conversation so far has been about about the law on its face whether the l based it must be based on the first instance the school decides who determines how much space will be available in various programs or services in january then there's an application period at the end of which schools look at the applications and see if a student by student if that student's particular space and capacity needs are available in that district such sic can you answer my question about seats versus services is the determination just about seats or is it say our speech therapist only has three additional hours per week so the student who is otherwise typical that needs and speech therapy services pursuant to an i p in the case by case terminations later it may not qualify just because the speech therapy services aren't available that's not a seat determination right that's a services mind right now to turn a man january yes it services so seats is sort of a rough way of talking about it but in reality sometimes these students who need special education that's the key to special education staffing make that staff might come into a regular education classroom for an hour and work with that student or that student might leave the state of that classroom and go to a different room with that same teacher but that the room isn't that really the thing it's that it's the the veil ability of the staffing to do provide that service and in most instances they'll be sure of developing student you can't stay in the regular education program for certainly and have to spend all day or three hours a day or two hours a day in a different from all together so that determination schools make has to be one of the services we provide what is our staffing and how much extra give is there right now in that same thing they do in their year new year by year classes but this is this is a little more complicated because you because of the way all of this works you can't really say we can take five special ed students or five students with a piece because their needs might differ so dramatically i mean if all of your applicants who had i needed say speech therapy but otherwise needed no other services you might be able to take ten that's right that's right so so you can't really say i mean it's not you know the plan just below have been saying you know there's a pool where you have maybe five special ed seats as i understand it but maybe thirty regular seats but you're saying that's not how it works the thing is you can't have a cause you can't know ex ante exactly how many students you can accommodate because it depends on is it extra time on tests et exactly right your honor so it's that the determination that under the law if you're by if you're complying with the law if your school district doing it right your january determination you're supposed to figure out what in particular do you have who are your staff members what do they do and how much extra time do they have to say speech therapy is that the teacher have half a day open an hour open whatever and then the reason that's done beforehand because they are not supposed to be playing favorites to see how much time do we have and you take an applications and you have to look at them based on what you are you decided you have and then you look at the application and you must look at what that application says that student needs in particular so if a student needs half an hour speech therapy and you're have space for half an hour or more  modifications i don't know if that's in the document the public can see in from the front end or not if a student appeals to d p i the state which is one state might get involved the d p i requires the school district they have the burden of production they have to come forth with a record showing indeed made their their their capacity analysis in january based on their staffing and how that worked what was done with the numbers and they also have to come forward with the student particular students ip and explain based on that ip why that student couldn't fit in their school they have to explain it the students here didn't apply it didn't appeal to d p i so we do i have that kind of analysis here on the state and state proceeding but i do want to point out one student did a plot did that appealed s b which posing council referred to and d p i the state reversed so exactly what what what we're supposed to do here is that they said you cannot deny s p f let's assume s p has a disability doesn't matter because s p did no longer needed special education services you have to give s b a spot that's i think that that cuts directly against their view that this is somehow a disability law another example i want to try to hit on is their hypothetical on page fourteen of their reply brief and i think was sort of alluded to in first argument if a student almost trip air phrase if a student has a vision problem in a night he must sit in the front row and receive certain written materials a school district could say no to that student even if they had space in that grade level no they can't they must accept that student if they have space in that grade level the only way they could say no to a student like that is if they that student also needed special education and they also didn't have space in that special education program or service and in fact the students example on page fourteen probably wouldn't even have an ip you might have something else called a section for bible for plan which doesn't come into play at all in these cases so put differently there are students with disabilities that student may be given a wheelchair who don't come into play in the section that they're challenging at all a student say in a wheelchair who has no cognitive impairments you can learn like any other look student doesn't need special instruction there's no special education capacity analysis to do it's just that students gets a regular education space so it doesn't it only applies to a subset of kids with disabilities and those kids are the ones that have i application that that is the standard procedure your honor yes and the resident school district remains financially responsible for educating the child a protesting i didn't say that they have to pay the receiving school district  you know on a reform line within limits etc yes your honor it's complicated but to a certain extent they do transfer some money to the to the what's called the nonresident school to compensate the for the difference council what would a fundamental alteration be when does it become fundamental is fundamental if you're hiring an additional speech therapist is that fundamental or is it only fundamental if the changes to the physical structure like we would need to expand our capacity and build another can guard a classroom to satisfy you know the space requirements in the fundament i think that would depend i think the way your hypothetical suppose would turn on a particular school or districts circumstances so it could be a new classroom to that district as a fundamental alteration  i don't speak for any particular district we don't run any particular district in terms of the law the scope in a moment law which is what's been challenge these would be the state we think it has to be a fundamental alteration to wipe out part of the law which is really what they're asking of the state saying we want you to delete part of that law that takes capacity it into account when they're special education needs so it's kind of weird fundamental alteration scenario and we think at least the reason it's weird is because this isn't an eighty eight discrimination claim for reasons i think the court pointed out if you are taking a step back from the elements eighty eight discrimination claims are about making assumptions based on disability acting on stereotypes about disability those kinds of thing over and over in the cases in this court and in the supreme court and that's just not what this law does or doesn't make assumptions it's based on what that student needs based on their services and so when you start looking at each element it starts to kind of crumble because it's not an immediate scrim a nation claim sure i ha addressed your question your honor about special ed and the january determination there's no restriction on a student with disabilities applying to a district even if they've made a terminations you know it's capacity because then they lobby choirs and to be clear is lingo the ips that is an individualized education programs are built into it and there's a whole chapter and the statutes about those and in federal law it's really really individual it's there's a team about that knows that student parents teachers special that they get together and it's a very detailed document about what that student needs and it's serviced by services not just the student needs special that it's the student needs it's very detailed twenty minutes two times a week for speech therapy you know an hour five times a week for access because of the students autism maybe to be taken out an hour every day or are all day one of the students needs to be taken out of of classes all day for one on one or we were from these plans all the time so it's it really is clear it is not permissible the way the wisconsin law works for a school district to say we're not going even look at the ip because we've made a decision in january that we can accommodate any special needs students that's right  they're really not close to making that determination in january and that sort of fraud to begin with so if someone were to challenge them and they came forward with that kind of kind of just vague assertion and they would already be in trouble  and i think the other point i want to point out i think the court already hit on it is that most of the time students with ips do actually transformed under the law about sixty four percent of the time is the last data we have is only about seven percent less than student without i p s and you can see that there is some difference because insignificant that was my my set piece i just wanted to touch briefly on some of the issues that have been discussed regarding whether it's seats whether it's capacity the main thing i want to point out is that  hypothetical situation and it came up at the district court level to somebody who needs just just minimal help but oh shucks you know we said in january that there's no seats available and you're out of luck that's that hypothetical is not what we have with mosquito and paris in those situations both of them would have had to hire additional teachers additional staffing to implement the peace so it's nothing has to look at the ip that's required to look at the ip and make a determination do we have the space do we have the capacity to be able to implement that p c so you can say we are ready and they sort of take on bridge at the way it's  that you know the districts just say no special and no special it is more nuanced and they look at their staffing they look at who's there how you know what do we have severe needs kids that are that these teachers have to deal with and they look at that and make a determination  but then you have to do that the post x post analysis you have to look at that and say do we have capacity to implement this i a p and both mosquito norway in paris day one in this case did that and internment that they didn't have that capacity they didn't have the program for want it was the collaborative kindergarten class that was going to require also an additional teacher for the other it was some pretty severe programs required for the severe autism so they both made that determination and that was really would have required additional staff also made that determination now it's not say that was wrong say that they looked at that and they didn't do it carefully i think it's very important to keep in mind that the students have appeal rights so if they challenge you the january determination as to how much capacity and where the ex post determination as to do we have space to implement this student's ip that can be appealed to d p i and do crime it is if the determination was unreasonable it gets reversed and that's what happened with with sure what i believe and happens all the time that that gets reverse there is there is something sort of holding the district's feet to the fire they can't just willy nilly say we don't want special ed kids and we don't have space they get called on that if that's if that's not right if that's not supportable that gets reversed so it's not a it's not a   a declaration that the statute section is violates the a b a they want an injunction that these districts can't implement that statute and they want damages so we talked about the declaration about the about the statue and we would agree with the state they're not really arguing plaintiffs arguing that any of the districts have misapplied the statute that they're that they're doing something wonky with it and again that would could be appealed so i think that really doesn't violates the way no district can apply it so that's not right they might have time and injunction against the operation of this program correct and i think that would be for everybody and as for damages i think of the plaintiffs got it wrong i think the district court correctly pointed out that this is an issue of first impression so to say that these districts met the deliberate indifference standard that they knew that there was a strong likelihood that following the law was going to violate the a t f i think that just hasn't been made and in the districts are kind of put between a rock and a hard place and implementing this mosaic of anti discrimination laws and laws that impose positive obligations to serve the specific educational needs of disabled students yes your honour's i'd like to playing with one if that puts you in conflict with another that can hardly be deliberate indifference i agree or not and that no what i think i mean what the districts are trying to do morning your honor smith please the court my name is kevin pollard i represent the shoreward school district the shorewards go district joins in the arguments of counsel for the co defendants with respect to the facial challenge of wisconsin open enrollment statute however the facts and claims made by the appellants as b and b against the charlotte school district are unique from a factual standpoint and i just wanted to address today the fact that there truly is no case or controversy for this for granny of the court to adjudicate involving different school districts on this and touched on briefly but when s b applied for when the woman at the shore was school district in two thousand and fourteen his mother falsely indicated at that time that he was not in need of any special education services on that basis so the short school district believe he did not have any i p or special education needs he wasn't walled subsequently it was apparent by the district that at his prior district in milwaukee as resident disclose it he didn't have the ip at the time and d p i subsequently ordered all went to take him that's correct your honor that the district mistakenly believe that the ip was still in place and it did not have the capacity to provide the services needed and well in fact the district was told that the ip was still in place because it was forwarded from the marquee correct right so it was it was no walkies mistake it wasn't charged with mistake that is correct and unbeknownst to the shore district after the application was accepted b s mother withdrew the consent for special education and so the matter was that the student was expelled the matter was appealed to d p i the d p i says scouts and the department of public instruction says the student does not need special education services not eligible for special education you have to let this kid come back and so they overruled the expulsion since that time you know there's allegedly a factual dispute about whether or not the district adequately to munich ated to the student that he was  titled to reenroll but there is nothing in the record to show that the district has ever refused to comply with the d p s order both during and multiply pl times during this litigation the district is made clear the student can enroll if you want to enroll so we're talking about a student who does not need special education services and the district is willing to accept the student not to mention the record in the case of the student not resides in sure what so he's actually a resident student in the short school district so there's truly place anymore and you wrongly denied me and you didn't communicate to me that i could that my expulsion was revoked then he suffered an injury and seeking compensatory damages for it and maybe he's not entitled to that because there's no dispute of material fact about has an obligation to create a plausible case for damages in order for there to be subject matters i don't think there is because he's entitled to free an appropriate education in his residence district so there could be no damages so that's all i have to say thank you for your time but thank  individual reviews of the applications after january after february and the attorney for the state the generous amount of said that you can but the law says that you can't once muskeg on norway made the decision in january that we will not accept applications from any students with i p s with disabilities under wisconsin law they cannot go back at mit students with disabilities that require any special education services of to provide services it's not it's not saying we're not going to take any students with a night he or any students who need services it's saying when we process applications we will do so knowing that we only have four hours worth of speech therapy students the services that we can dole out you know you're saying that that's just not true it's not true and certainly there's no evidence in the record that when miscue going our way said we'll take no children disability that they said unless they only require one hour speech therapy there's no indication that shore would make such a determination who knows any evidence on the record that parents make such a determination what they say is fifty seats for children without disabilities zero seats for children with disabilities and the wisconsin law and regulation they cannot undo this because then they'd be playing favorites like attorney rossa model said that they couldn't so he and i strongly disagree about that and we've cited the wisconsin administrative child then accept them as they should then then they become responsible right in determining admission the admission decision is based on the i e t which is supposed to be automatically sent by the resident that will destroy that in fact is true and there is a legal obligation on the part of the non resident district twenty reviewing an application to take a look at the i p i was just pointing out they can't just ignore that and we don't have any but they do have the right to do a new one once they accept the stupid oh certainly so the last point i wanted to make here on the merits is that every child in this in every student in the state of wisconsin is entitled to a free appropriate public education in their residence just for whether they're disabled or not and to see what was garson has done is said we're going to give an extra benefit to students without disabilities and allow them to participate in an additional excess capacity program called open enrollment but they don't make it available in the same way to children without disabilit do they make it they make it available to students with i e peace and students and regular education on the same terms based on capacity to serve the needs of the student miskito in norway made it available to fifty students without disabilities and zero students with and in that year based no existing capacity we know from the record that over one thousand kids with disabilities were denied under section five day four of the open enrollment law which fully applies to students with disabilities so in one year one thousand children over one thousand children with disabilities were denied the ability to participate in this program because their disability i see my read later thank you thanks to all