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 Superin-
tendent 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 educa-
tion 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 nonresi-
dent 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 stu-
dents doesn’t make the program unlawful. Federal law
“forbids discrimination based on stereotypes about a handi-
cap, 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 deci-
sions 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 altera-
tions.
I. Background
In keeping with the Individuals with Disabilities Educa-
tion Act, 20 U.S.C. §§ 1400, 1412(a)(1), Wisconsin law guar-
antees children with disabilities a “free appropriate public
education” and requires school districts to provide special-
education services according to a disabled child’s “individu-
alized 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 ser-
vices 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 availa-
ble 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 pro-
jections 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 applica-
tions 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 admin-
isters 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 en-
rollment 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 stu-
dent’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 open-
enrollment 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 applica-
tions 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 Dis-
trict to the Shorewood School District in 2014. His applica-
tion 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 equal-
protection 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
1Three 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 Rehabilita-
tion Act prohibit discrimination against disabled individu-
als. 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 disabil-
ity; and (2) the plaintiff must have been denied governmen-
tal 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 Superinten-
dent, the Department, or any of the school districts inten-
tionally deviated from the program in a discriminatory
manner. Rather, they claim that the program itself discrimi-
nates 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 dis-
criminates 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 dis-
tricts 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 pro-
gram 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 discrimi-
nates 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 re-
quirements.” 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 accom-
modation, 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 fea-
ture. Federal law does not require such an overhaul.
AFFIRMED.