Schools of Choice Refresher

As the school year comes to a close, school districts must act soon to enroll schools of choice students for the 2018-2019 school year.

The State School Aid Act allows an enrolling district to count non-resident students in membership without resident district approval under certain cir­cumstances. Allowing schools of choice enrollment is voluntary, and a district must “opt in” to participate. The State School Aid Act recognizes two types of choice: (1) enrollment of non-resident students who reside in the same ISD (Section 105), or (2) enrollment of non-resident students who reside in a contiguous ISD (Section 105c). A district may participate in either Section 105 or 105c choice, both Section 105 and 105c choice, or neither. If your district participates in schools of choice, however, it must comply with all aspects of the law or risk forfeiting 5% of its total state aid allocation.

Limited Openings

If a district sets a limited number of openings for student enrollment, it must publish the grades, schools, and special programs that are available and notify the public that it is accepting applications. The application period must be between 15 and 30 calen­dar days. The notice must include when and how to apply and must be published by the second Friday in August.

Within 15 calendar days of the close of the application period, the district must determine who will be allowed to enroll. Students not selected, if any, must be placed on a waiting list. The district must noti­fy parents of their student’s acceptance and any enrollment procedures, including the date by which the student must be enrolled. The enrollment date must be no later than the end of the first week of school.

If openings remain between the third Monday in August and the end of the first week of school, the dis­trict may enroll students from the waiting list. Schools may not enroll choice students after the end of the first week of school.

Unlimited Openings

Some districts choose to permit unlimited openings for their schools of choice program. If that is the case, please be aware (and be prepared) that you may have a large number of applicants.

If your district sets unlimited openings, it can accept applications until the end of the first week of school. The district must provide notice to the public of the place and manner for submitting the applica­tions. The application period must be at least 15 calendar days.

Non-Discriminatory Selection

When selecting students to enroll, a district may not base enrollment on a student’s:

  • intellectual, academic, artistic, or other ability, talent, or accomplishment, or lack thereof;
  • mental or physical disabilities, if the student otherwise meets eligibility criteria;
  • age, if the student is age appropriate for the program; or
  • religion, race, color, national origin, sex, height, weight, marital status, athletic ability, or other state/federal protected status.

A district may deny enrollment if the student is or has been suspended by another school in the previous two years, has ever been expelled from another school, or has been convicted of a felony. However, if your district has already counted the student in membership, it may not deny enrollment.

Right to Continued Enrollment & Sibling Preference

Once enrolled, a district must allow a student to continue to enroll in the district until the student graduates from high school or is expelled from the district. Also, students who live in the same household as a student already enrolled pursuant to schools of choice must be given enrollment priority.

Special Education Considerations

If a student is enrolled under Section 105 (within the same ISD) and is eligible for special education programs and services, that student is considered a resident of the enrolling district for purposes of providing the student a free appropriate public education (FAPE).

Section 105c creates additional requirements if a student who resides in a contiguous ISD is eligible for special education programs and services. To enroll a non-resident special education student under Section 105c, the enrolling district must have a written agreement with the student’s resident district for pur­poses of providing a FAPE. The Section 105c agreement must address payment of the added costs of special education and how the agreement will be amended if there is a significant change in the costs or level of special education that the student requires. The statute is silent, however, regarding who must pay for special education. If the enrolling district and resi­dent district do not reach an agreement before the student’s initial enrollment, the student cannot be en­rolled. If a student is initially enrolled as a general education student but becomes eligible for special education services, the enrolling district then must enter into a written agreement with the student’s res­ident district. The enrolling district may not send the student back to the resident district. Failure to reach an agreement may result in a 5% state aid penalty.

Schools of choice law is complex and could have serious implications for noncompliant districts. If you have any questions regarding schools of choice or Section 105c agreements, please contact Thrun Law Firm.