In Wisconsin, school districts last year rejected open enrollment applications from students with disabilities at twice the rate of other students.
In Nebraska, dozens of school districts exclusively denied applications to students with disabilities during the 2023-24 school year, while accepting others.
And in Connecticut, a state investigation last year found that its career and technical high schools were disproportionately denying access to students with disabilities, in violation of state and federal law.
Disability advocates in New Hampshire warn that a controversial universal open enrollment bill now under consideration would expose students with special education needs to the same pattern of exclusion here.
“These are not predictions for New Hampshire in open enrollment; these are outcomes,” said Louis Esposito, the executive director of the organization ABLE NH.
Like some other states’ laws, Senate Bill 101 explicitly bars school districts from rejecting students on the basis of their special education needs. But Esposito and others fear that school districts will cite a series of legitimate grounds for denial to effectively bar students with disabilities from enrolling.
The proposed law allows districts to reject students if they have had a history of “significant disciplinary issues” or “chronic absenteeism,” both of which are more common for students with disabilities than for those without them.
The bill “invites de facto selection and exclusion of students with disabilities,” said Lisa Beaudoin, an independent disability equity consultant and former director of ABLE NH.
Even proponents of open enrollment acknowledged this was a potential problem, though they said that students with disabilities in other states have taken advantage of universal open enrollment programs.
“Of course it’s a concern that districts will arbitrarily reject students with disabilities just because they have disabilities,” Aaron Smith, the director of education reform at the Reason Foundation, a pro-open-enrollment think tank, said in an interview.
“But at the same time,” he added, “as with many things, we don’t want to let perfect be the enemy of good.”
The proposed model for funding special education services, which differs from that of other states, introduces its own set of nuances.
Under the bill, the district where a student resides would remain responsible for special education services when that student enrolls elsewhere.
This means, for instance, that if a Canterbury child who required occupational therapy elected to enroll in school in Pembroke, the Shaker Regional School District would be responsible for either sending an occupational therapist to Pembroke or paying Pembroke to deliver the service itself.
Opponents of open enrollment said this would lead to logistical and financial challenges, inter-district fights, and destabilization of the state’s special education system.
“From the student’s perspective, this could lead to significant holes and confusion as to how service is going to be delivered from one school to another,” Esposito said.
This division of responsibility already exists for students who attend charter schools. Both charter school leaders and local district administrators have expressed frustration about how it operates.
Tim Broadrick, the superintendent of the only district with an active open enrollment program, agreed that the funding model for special education services should be addressed. He said, however, that lawmakers should bring separate legislation that would also apply to charter schools.
In most other states with universal open enrollment programs, the district in which a student is enrolled assumes responsibility for their special education services.
“If a district has the programmatic capacity to serve students with disabilities, and they enroll them as a transfer student, then they’re responsible for serving that student,” Smith said.
New Hampshire’s model could diminish the concerns of districts when accepting students who require special education services, but it would increase the burden on districts that are losing these students.
The House Education Policy and Administration committee held two days of hearings on the bill over the last two weeks. Next, the committee will make a recommendation on whether to recommend its passage.
The bill was significantly amended last week, following widespread criticism of a funding model that would have required school districts to pay each other directly in base tuition when a student transfers. (This is the same funding model that remains in the bill for special education services.)
The new approach mirrors that of charter schools. The state would redirect per-pupil adequacy payments to the district that a student enrolls in.
Though the change altered at least one superintendent’s opinion on the bill, it still faces significant opposition. The Republican Party, which has expressed support for previous iterations of a universal open enrollment law, currently holds large majorities in both bodies of the legislature.
If the current version of the bill passes, it would not go into effect until the 2027-28 school year. The bill would supersede the local policies that many school districts passed this year to restrict open enrollment.
