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.,

Plaintiffs-Appellants

v.

CAROLYN STANFORD TAYLOR,*

State Superintendent of Public

Instruction, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 14-cv-792 — William M. Conley, Judge.

____________________

ARGUED APRIL 20, 2018 — DECIDED JANUARY 22, 2019

____________________

Before SYKES and BARRETT, Circuit Judges, and DURKIN, 

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

SYKES, Circuit Judge. Under Wisconsin’s open-enrollment 

program, a public-school student can apply to transfer from 

his resident school district to a nonresident district that has

an available space for him. WIS. STAT. § 118.51. The program 

distinguishes between “regular education and special education spaces.” Id. § 118.51(5)(a)1. If a student with a disability 

requires 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 districts 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 Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12132; section 504 of the Rehabilitation 

Act, 29 U.S.C. § 794(a); and the Equal Protection Clause, 

U.S. CONST. amend. XIV, § 1. They argued that the program 

unlawfully discriminates against disabled children because 

of their disabilities. The district judge concluded that the 

program did not violate federal law and entered summary

judgment for the defendants.

We affirm. Differential treatment of special-needs students doesn’t make the program unlawful. 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 v. Univ. of Wis., 

841 F.2d 737, 740 (7th Cir. 1988). The program makes decisions based on the actual needs of disabled students, so it 

complies with federal law. And even if we analyze the case 
No. 17-3266 3

as a request for an accommodation, the requested change 

would fundamentally alter the program, and neither the 

ADA nor the Rehabilitation Act require fundamental alterations.

I. Background

In keeping with the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, 1412(a)(1), Wisconsin law guarantees children with disabilities a “free appropriate public 

education” and requires school districts to provide specialeducation services according to a disabled child’s “individualized education program.” WIS. STAT. §§ 115.76(7), 

115.77(1m)(d). An individualized education program (“IEP”)

outlines the “special education and related services” or 

“program modifications or supports” that the disabled 

student requires. Id. § 115.787(2)(c). Typically the school 

district in which a special-needs student resides must satisfy

the IEP requirements unless the student transfers districts. 

Id. §§ 115.76(10), 115.77.

Wisconsin’s open-enrollment program permits such a 

transfer. Id. § 118.51(2). The program operates on a calendar.

In January school districts determine how many excess 

“spaces” are available in both regular-education classrooms 

and special-education services. Id. § 118.51(5)(a)1. They can 

consider factors like “class size limits, pupil-teacher ratios[,]

or enrollment projections.” Id. § 118.51(5)(a)1, (5)(a)4. 

Regular-education spaces are typically determined by grade 

level, id. § 118.51(5)(a)1, while “special education spaces” are 

determined “by program or services,” WIS. ADMIN. CODE 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. WIS. STAT. § 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 which 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 individualized 

education program under [WIS. STAT.]

§ 115.787(2) are available in the nonresident 

school district or whether there is space available 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. § 118.51(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–

2014, districts approved 3,718 out of 5,822 transfer applications 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 program at the state level. It promulgates the 

standard application forms, which include a checkbox for 

whether the student has an IEP. The Department’s guidance 

emphasizes that “[a] student may not be denied open enrollment based on the student’s disability.” MARY JO 

CLEAVER, WIS. DEP’T OF PUB. INSTRUCTION, MAKING OPEN 

ENROLLMENT SPECIAL EDUCATION DECISIONS NONRESIDENT 

SCHOOL DISTRICT 2 (2012). Rather, “[t]he application may 

only be denied based on the availability of or space in the 

special education or related services required in the student’s IEP.” Id. Individual school districts administer the 

program 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 plaintiffs—R.W., P.F., and S.B.—each applied 

to transfer to nonresident school districts under the openenrollment program. 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

the 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 with 
6 No. 17-3266

his IEP. So 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 

from 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–

Norway, and Shorewood.1 The plaintiffs claimed that the 

program violates the ADA, the Rehabilitation Act, and the 

Equal Protection Clause. The parties filed cross-motions for 

summary judgment, and the district judge entered summary 

judgment for 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 Rehabilitation Act; they do not seek review of 

the judge’s ruling for the defendants on their equalprotection claim. We review a summary judgment de novo. 

Pain Ctr. of Se. Ind. LLC v. Origin Healthcare Sols. LLC, 

893 F.3d 454, 459 (7th Cir. 2018). Summary judgment 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.” FED. R. CIV. P. 56(c).

We first address a jurisdictional issue. S.B. now resides in 

Shorewood, so he is entitled to enroll 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 his change in residence does not moot his claim 

for damages. 

Both Title II of the ADA and section 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 governmental benefits because of his disability. See 42 U.S.C. § 12132; 

29 U.S.C. § 794(a).

The plaintiffs do not contend that the State Superintendent, the Department, or any of the school districts intentionally deviated from the program in a discriminatory 

manner. Rather, they claim that the program 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 program, by its 

terms, violates federal antidiscrimination law.

It does not. The plaintiffs argue that the program discriminates against disabled students because it imposes 

criteria that apply only to students with special needs. But 
8 No. 17-3266

their argument rests on mischaracterizations of federal law 

and the program itself. Under federal law a program is not 

discriminatory just because it takes an 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 considering 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 program, 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 program hinges on “the actual attributes of the handicap” rather 

than mere “stereotypes.” Id. It’s far more limited than a true 

open-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 the nonresident district 

has excess capacity. No student has the right to cross-enroll 

if the nonresident district does not. 

For the program to work, school districts must evaluate 

their existing space and resources and the needs of the 

transfer applicants. Not all students are the same. A sixth 

grader requires different services than a fourth grader, and

the program allows districts to categorize their capacity

accordingly. It wouldn’t follow that the program discriminates against fourth graders if a nonresident school district 
No. 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

requires special resources, it 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. 

Properly framing the program leads to an easy resolution

of this case. To be a “qualified individual with a disability,” 

a child must meet the program’s “essential eligibility requirements.” 42 U.S.C. § 12131(2). The program only permits 

applicants to transfer if the nonresident district has excess 

capacity. If a nonresident district lacks the capacity to serve a 

disabled applicant’s needs, the applicant does not meet the 

program’s essential requirements. Neither has the applicant 

been denied admission “by reason of [his] disability.” Id. 

§ 12132. As we’ve explained, the program 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 request for an accommodation, the plaintiffs still aren’t entitled to relief. Neither 

the ADA nor the Rehabilitation Act requires modifications 

that “would fundamentally alter the nature of the service, 

program, or activity.” 28 C.F.R. § 35.130(b)(7)(i); see also 

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 this program. Demanding that nonresident 

school districts accept students regardless of their existing 

capacity to meet student needs would upend this key feature. Federal law does not require such an overhaul.

AFFIRMED.