Schools of Choice Refresher

It may seem like summer vacation just started, but districts that elect to participate in schools of choice for the 2019-2020 school year should ensure they are ready for the application period to begin.

The State School Aid Act allows an enrolling district to count nonresident students in membership without resident district approval only under specific circum­stances. Schools of choice participation is voluntary, and the district must “opt in.”

The State School Aid Act recognizes two types of choice: (1) enrollment of non-resident students who re­side in the same ISD (Section 105); and (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, or neither. If your district participates in schools of choice, 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 notice must include when and how to apply and be published by the second Friday in August (August 9, 2019). The applica­tion period must be between 15 and 30 calendar days.

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

If openings remain between the third Monday in August (August 19, 2019) and the end of the first week of school, the district may enroll students from the waiting list. Districts may not enroll choice students after the first week of school.

Unlimited Openings

Some districts choose to have unlimited openings for their schools of choice program. If your district sets unlimited openings, it can accept applications until the end of the first week of school.

The district must notify 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 legally protected status.

A district may deny enrollment if a student is or has been suspended by another school during the previous two years, has ever been expelled from another school, or has been convicted of a felony. District officials should contact a student’s previous school(s) to determine the student’s disciplinary history. If your district has already counted the student in member­ship, however, it may not disenroll a student, regardless of whether a parent or school failed to disclose the previous discipline before enrollment.

Right to Continued Enrollment and 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. Students who live in the same household as a student already enrolled in a district as a schools of choice student 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 nonresident special education student under Section 105c, the enrolling district must have a written agree­ment with the student’s resident district addressing 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, as to which district must pay for the student’s special education programs and services. If the enrolling and resident districts 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 later, the enrolling district then must enter into a written agreement with the student’s resi­dent district. The enrolling district may not return the student to the resident district. Sending the student back or failing to reach an agreement may result in a 5% state aid penalty.

Schools of choice law is complex and has significant implications for noncompliance. If you have any ques­tions about schools of choice or Section 105c agreements, please contact Thrun Law Firm.