### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17

- 3266 P.F., a minor , by A.F., his parent , et al., Plaintiff s

- Appellant s

v.

C AROLYN S TANFORD T AYLOR , * State Superintendent of Public Instruction, et al. , Defendant s

- Appellees

.

____________________ Appeal from the Unite d States District Court for the Western District of Wisconsin

. No. 1 4

- cv

- 792

— William M

. Conley , Judge

.

____________________
A RGUED A PRIL 20, 2018

— D ECIDED J ANUARY 22, 2019

____________________
Before S YKES and B ARRETT , Circuit Judges , and D URKIN , District Judge

. †

* We have substituted Carolyn Stanford Taylor, the current State Superintendent of Public Instruction, for Tony Evers, the prior Superintendent.

† Of the Northern District of Illinois, sitting by designation.2 No. 17

- 3266

S YKES , Circuit Judge

. Under Wisconsin’s o pen

- e nrollment p rogram, a public

- school student can apply to transfer from his resident school district to a nonresident district that has

an available space for him

. W IS

. S TAT

. § 118.51. T he p r ogramdistinguishes between “regular education and special education spaces.” Id. § 118.51(5)(a) 1. If a student with a disability

re quires special services , a nonresident district may deny the student’s transfer application if it lacks the services or space necessary to meet those special needs

. Id. § 118.51(5)(a)4

. This suit concerns a group of disabled schoolchildren whose transfer applications were denied because nonresident district s determined that they could not meet the students ’ special needs

. The students’ parents , on their children’s behalf, sued the school districts and various state
actors seeking injunctive, declaratory, and compensatory relief under Title II of the A mericans with D isabilities A ct (“ADA”) , 42 U.S.C. § 12132 ; s ection 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) ; and the Equal Protection Clause , U.S. C ONST

. amend. XIV, § 1 . The y argue d tha t the p rogram unlawfully discriminates against disabled children because of their disabilities. The district judge concluded that the p rogram did not violate federal law and entered summary judgment for the defendants

. We affirm. Differential treatment of special

- needs students doesn’t make the p rogram unlawful. F ederal law“forbids discrimination based on stereotypes about a handicap, but it does not forbid decisions based on the actual attributes of the handicap.” Anderson v. Univ. of Wis. , 841 F.2d 737, 740 (7th Cir. 1988). The p rogram makes decisions based on the actual needs of disabled students , so it complies with federal law

. And e ven if we analyze the caseNo. 17

- 3266 3

as a request for an accommodation, the requested change would fundamentally alter the p rogram, and neither the ADA n or the Rehabilitation Act require fundamental alterations

. I. Background In keeping with the Individuals w ith Disabilities Education Act, 20 U.S.C. §§ 1400, 1412(a)(1), Wisconsin law guarantees children with disabilities a “free appropriate public education” and requires scho ol districts to provide special

education services according to a disabled child’s “individualized education program.” W IS

. S TAT . §§ 115.76(7), 1 15.77(1m)(d ). An i ndividual ized education program (“ IEP ”) outline s the “special education and related services” or “program modifications or supports” t hat the disabled student requires

. Id. § 115.787(2)(c) . Typically the school district in which a special

- needs student resides must satisfy the IEP requirement s unless the student transfers districts. Id. §§ 115.76(10), 115.77.
Wisconsin’s o pen

- en rollment p rogram permits such a transfer

. Id. § 118.51(2). The p rogram operates on a calendar. In January school districts determine how many excess “space s” are available in both regular

- education classrooms

an d special

- education services. Id. § 118.51(5)(a)1. They can consider factors like “class size limits, pupil

- teacher ratios [ , ] or enrollment pr ojections

. ” Id. § 118.51(5)(a)1, (5)(a) 4. Regular

- education spac es are typically determined by grade level, id. § 118.51(5)(a)1, while “special education spaces” are determined “by program or services , ” W IS

. A DMIN

. C ODE PI § 36.06(5)(a).4 No. 17

- 3266

Between February and April, interested students may submit transfer applications to up to three nonresident districts

. W IS

. S TAT

. § 118.51(3)(a)1. If an applicant has an IEP in place, the resident district will send a copy of the plan to the nonresident district. Id. § 118.51(3)(a)1m. Beginning in May nonresident districts determine wh ich applications they will accept by comparing available space to the needs of the applicants. Id. § 118.51(3)(a)2. For applicants with IEPs, nonresident districts determine whether they have the capacity to meet each student’s special needs. Relevant factors for this analysis include [w] hether the special education or related services described in the child’s individua lized education program under [ W IS

. S TAT .] § 115.787(2) are available in the nonresident school district or whether there is space avai lable to provide the special education or related services identified in the child’s individualized education program, including any class size limits, pupil

- teacher ratios [,] or enrollment projections established by the nonresident school board.
Id. § 11 8.51(5)(a)4. Districts notify applicants of their acceptance or rejection in June. Id. § 118.51( 3 )( a ) 3

. Most applications are accepted, including those submitted by students with IEPs . In 2013

– 20 14, districts approved 3,718 out of 5,822 transfer applic ati ons for students with IEPs , or roughly 64 %. The same year districts approved 71% of transfer applications for students without IEPs.No. 17

- 3266 5

The Wisconsin Department of Public Instruction administers the p rogram at the state level. It promulgates t he standard app lication forms , which include a checkbox for whether the student has an IEP. T he Department’s guidance emphasizes that “ [ a ] student may not be denied open enrollment based on the student’s disability

. ” M ARY J O C LEAVER , W IS

. D EP ’ T OF P UB

. I NSTRUCTION , M AKING O PEN E NROLLMENT S PECIAL E DUCATION D ECISIONS N ONRESIDENT S CHOOL D ISTRICT 2 (2012). R ather, “[t]he application may only be denied based on the availability of or space in thespecial education or related services required in the student’s IEP.” Id. In dividual s chool districts administer the p rogram at the local level. They calculate capacity and determine whether there is an available space for a given applicant. The Department has the power to review and overturn these determinations. The three plaint iffs

— R.W., P.F., and S.B.

— each applied to transfer to nonresident school districts under the open

enrollment p rogram

. R.W. and P.F. have autism while S.B. has ADHD. R.W. and his twin brother applied to transfer from the Kenosha Unified School District to the Paris J1 School District in 2012 . Paris initially accepted both applications but later revoked its acceptance of R.W.’s application because it lacked the capacity to meet his special needs.

P.F. applied to transfer from the Racine School District to th e Muskego

– Norway School District in 2014

. Muskego

– Norway had previously determined that it had 55 spaces for regular students but zero spaces for special

- needs students

. Moreover, under the law in effect at the time, Racine would be responsible for reimbursing Muskego

– Norway for the additional costs required to educate P.F. in accordance with6 No. 17

- 3266

his IEP

. S o Racine declined to approve the transfer , and Muskego

– Norway ultimately denied P.F.’s application.
S.B. applied to transfer from the Milwaukee School District to the Shorewood School District in 2014

. His application was initially accepted. But when Shorewood later discovered that S.B. had an IEP, it promptly revoked his acceptance under section 118.51(5)(a)4 and expelled him f rom the school.
The three students , by their parents , filed suit against the State Superintendent of Public Instruction , the Wisconsin Department of Public Instruction , and the three school districts that rejected their applications: Paris J1, Muskego

– Norw ay, and Shorewood. 1 The plaintiffs claimed that the p rogram violates the ADA, the Rehabilitation Act, and the Equal Protection Clause

. The parties filed cross

- motions for summary judgment , and t he district judge entered summary judgment f o r the defendants on all claims except for R.W.’s claim for injunctive relief against Paris. That claim was later dismissed, and the judge entered final judgment for the defendants.
II. Discussion The plaintiffs limit their appeal to their claims under the ADA and the Rehab ilitation Act; they do not seek review of the judge’s ruling for the defendants on the ir equal

protection claim. We review a summar y j udgment de novo. Pain Ctr. of Se. Ind. LLC v. Origin Healthcare Sols. LLC , 893 F.3d 454, 459 (7th Cir. 2018). Summary judg ment is

1 Three other disabled children , by their parents , joined the suit below, but they are not involved in this appeal.No. 17

- 3266 7

appropriate when “there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” F ED

. R. C IV

. P. 56(c). We first address a jurisdictional issue. S.B. now resides in Shorewood, so he is entitled to enr oll as a resident student. We therefore dismiss as moot his claims for injunctive and declaratory relief against Shorewood

. See CTL ex rel. Trebatoski v. Ashland Sch. Dist. , 743 F.3d 524, 528 (7th Cir. 2014). But h is change in residence d oes not moot his c laim for damages

. Both Title II of the ADA and s ection 504 of the Rehabilitation Act prohibit discrimination against disabled individuals. For our purposes the statutes are “functionally identical.” Wagoner v. Lemmon , 778 F.3d 586, 592 (7th Cir. 2015). A claim under either statute has two basic elements: (1) the plaintiff must be a qualified individual with a disability ; and (2) the plaintiff must have been denied government al benefits because of his disability. See 42 U.S.C. § 12132; 29 U.S.C. § 794(a)

. The p laintiffs do not c ontend that the State Superintendent , the Department, or any of the school districts intentionally deviated from the p rogram in a discriminatory manner. Rather, the y claim that the p rogram itself discriminates on the basis of disability and that the defendants are liable for their role in administering it

. The question before us, then, is whether the open

- enrollment p rogram , by its terms, violates federal antidiscrimination law.
It does not. The p laintiff s argue that the p rogram discriminates against disabled students because it imposes criteria that apply only to students with special needs

. But8 No. 17

- 3266

their argument rests on mischaracterization s of federal law and the p rogram itself

. Under federal law a program is not discriminatory just because it takes a n individual’s disability into account. “[A]lthough a disability is not a permissible ground for assuming an inability to function in a particular context, the disability is not thrown out when consid ering if the person is qualified

... .” Knapp v. Nw. Univ. , 101 F.3d 473, 482 (7th Cir. 1996). Put another way, federal law “forbids discrimination based on stereotypes about a handicap, but it does not forbid decisions based on the actual attributes of the handicap.” Anderson , 841 F.2d at 740

. Under the open

- enrollment p rogram , nonresident districts cannot turn away applicants merely because they are disabled . Instead the program allows nonresident districts to realistically assess whether they have the capacity and

resources to comply with a transfer student ’s IEP. Because decisions are based on a student’s special needs, the p rogram hinges on “the actual attributes of the handicap” rather than mere “stereotypes.” Id. It’s far more limited than a true op en

- enrollment program

. It seeks to maximize school choice but only to the extent that excess capacity exists . Any student is permitted to cross

- enroll if t he nonresident district has excess capacity . N o student has the right to cross

- enroll if the nonresid ent district does not.

F or the p rogram to work, school districts must evaluate their existing space and resources and the needs of the transfer applicants. N ot all students are the same . A sixth grader requires different services than a fourth grader, and the p rogram allows districts to categorize their capacity accordingly. It wouldn’t follow that the p rogram discriminates against fourth graders if a nonresident school districtNo. 17

- 3266 9

only has excess capacity in the sixth grade

. The same is true of students with special needs

. If a student with an IEP require s special resources , i t doesn’t make any more sense to treat his needs as identical to those of his peers than it would to treat fourth graders the same as sixth graders.

P roperly f raming the p r ogram l eads to an easy resolution of this case

. To be a “qualified individual with a disability,” a child must meet the p rogram’s “essential eligibility requirements.” 42 U.S.C. § 12131(2). The p rogram only permits applicants to transfer if the nonresident district has excess capacity. I f a nonresident district lacks the capacity to serve a disabled applicant’s needs, t he applicant does not meet the p rogram’s essential requirements . N either has the applicant been denied admissio n “by reason of [ his ] disability

. ” Id. § 12132. As we ’ve explained , the p rogram considers the capacity of the nonresident district to meet the requirements outlined in the disabled student’s IEP rather than the mere fact of a disability

. Even if we analyze this case as a requ est for an accommodation , the p laintiff s still aren’t entitled to relief

. Neither the ADA nor the Rehabilitation Act require s modifications that “would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i); see a lso Tennessee v. Lane , 541 U.S. 509, 532 (2004). The requirement that nonresident school districts have the excess capacity to meet the needs of transferring students is a fundamental component of th is p rogram

. Demanding that nonresident school district s accept students regardless of their existing capacity to meet student needs would upend this key feature

. Federal law does not require such an overhaul

. A FFIRMED

.