Testimony before the House Education Policy Committee on SB 101 was a two-day journey that spanned almost 11 hours. The room was packed, stuffy and hot. Parents, superintendents, school board members, administrators and disability advocates all raised the same concern: This bill does not account for students with disabilities.
Questions about 504 plans could not be answered. That would be concerning in any policy discussion, but it is especially concerning when those questions affect federal civil rights obligations. The bill’s sponsor said he did not want to get into the giant conversation about special education. When a lawmaker asked who would pay for a wheelchair accessible van, the answer was that families would find a way. That is not policy. It is a signal. It tells you who this bill was written for and who it was not.
Of the states with open enrollment laws, only three track denial data by category. In every one, students with disabilities are denied at disproportionate rates. I am not highlighting these states because they are outliers, but because they are the only states where data is actually being collected.
In Wisconsin, districts rejected 40% of open enrollment applications from students with disabilities in 2021-2022. They rejected only 14% from students without. One district near Madison announced 115 open enrollment slots and reserved zero for students with disabilities.
In Nebraska, students with IEPs made up 38% of all rejections despite being only 17% of students. Forty districts rejected only students with disabilities while accepting every other applicant. Nebraska explicitly prohibits districts from considering disability in enrollment decisions. They still deny students with disabilities at more than double the rate of their peers.
In Oklahoma, state data from the 2024-2025 school year shows 466 students were denied transfers specifically because districts lacked programs, staff or services for their disability. That is more students denied for having a disability than for all behavioral and disciplinary reasons combined.
In Colorado, the nonprofit Disability Law Colorado filed a 130-page federal civil rights complaint documenting how open enrollment policies create pathways for disability-based exclusion. The complaint argues that districts can use neutral-sounding criteria as a pretext for discrimination.
Disability is not the issue here. The issue is a system that allows access to depend on discretion instead of guaranteeing it.
SB 101 is less protective than all of these states. And it was written without consulting New Hampshire’s special education administrators or the Charter School Alliance, both of whom confirmed during testimony that they were never contacted.
The bill allows districts to deny students based on capacity, disciplinary history and absenteeism, but it does not define these terms. That ambiguity matters.
A student whose behavior is a response to unmet support needs could have that record used against them. A student missing school due to cancer treatment could be labeled chronically absent. The bill does not prevent it.
It also creates a disclosure trap. A student’s IEP or 504 plan cannot be shared without parental consent. But SB 101 does not address when disability status must be disclosed. Families either reveal their child’s disability and risk a pretextual denial, or stay silent and arrive at a school that is not prepared.
Section 504 may be the most glaring gap. During the hearing, questions about 504 plans could not be answered. Under federal law, the receiving district is financially responsible for 504 accommodations, and costs can be significant.
If schools are expected to operate like competitors in a marketplace, as some legislators have suggested, this creates a clear incentive problem. Why would a district accept a student who requires additional resources and support? That creates a financial reason to turn students away, and the bill’s vague denial criteria provide the means to do it.
When schools can choose their students, some students do not get chosen. The data from the states that track it confirms this. New Hampshire’s special education leaders raised it. Parents raised it. And still, SB 101 does not prevent it, does not track it and does not even acknowledge it.
New Hampshire can do better.
Dr. Louis Esposito is the the executive director at ABLE NH, a disability advocacy organization. He has an Ed.D in Educational Leadership from SNHU and is a former special education teacher. He lives in Hollis.