Open enrollment school district transfers may not be denied because of applicant's race

Wisconsin Attorney General J. B. Van Hollen issued a formal opinion (OAG-4-07) December 20, 2007 applying Parents Involved in Community Schools, et al. v. Seattle School Dist. No. 1, et al., to Wis. Stat. sec. 118.51(7).

Van Hollen’s opinion analyzes the application of the statute and concludes that “the effect of section 118.51(7)(a) upon an otherwise eligible open enrollment applicant who resides in or applies to a school district eligible for Chapter 220 aid is to make the applicant’s racial classification the determining factor in whether the applicant will be permitted to transfer to fill an available space in the receiving district.” Applying Supreme Court precedent, the opinion reasons that the “transfer limitation in section 118.51(7)(a) has all the essential features of the Louisville school assignment policy invalidated in the Seattle School District No. 1 case.” Thus, the opinion concludes that “the portion of section 118.51(7)(a) that requires a school district eligible for Chapter 220 aid to reject an open enrollment application if the requested transfer into or out of the school district would increase the district’s racial imbalance is inconsistent with the equal protection guarantee of the United States Constitution.”

The opinion was requested by the Wisconsin Department of Public Instruction.