Despite the Law, Nebraska School Districts Denied Transfers to Special Ed Kids

This story was produced in partnership with Flatwater Free Press, Nebraska's first independent, nonprofit newsroom focused on investigations and feature stories that matter.
Angela Gleason knew something was wrong with her son's education by the time he began first grade in Omaha Public Schools.
The district moved Teddy, who has autism and is nonverbal, from a behavioral skills class to general education. His struggles brought on outbursts of running around the room and disrupting his classmates, leading to near-daily phone calls asking Gleason to come get him.
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Feeling hopeless, Gleason applied for a transfer to Millard Public Schools in 2018. But the nearby district said its special education program had no room for Teddy.
Year after year, Gleason applied to Millard and received the same response, even as the district later accepted two of her other children, who didn't need special education services. She tried other Omaha-area districts. Westside. Then Bellevue. Both rejected Teddy.
'It's very disheartening as a parent to try repeatedly to get your child with disabilities accepted into a different school district, and to be told 'no' over and over and over again,' she said.
A 35-year-old Nebraska law lets students transfer from one public school district to another under a policy known as option enrollment.
Today, more than 25,000 students attend schools outside their home district. But for hundreds of kids like Teddy, the program hasn't lived up to its promise, despite a provision barring districts from considering students' disabilities as part of their admission standards.
In 2023-24, Bellevue Public Schools and 39 other districts rejected only kids with disabilities while accepting option applications from other students. Several suburban Omaha districts, like Millard, Westside and Papillion La Vista, denied students with disabilities at disproportionate rates.
Across Nebraska, students with individualized education programs (IEPs) made up 38% of the option enrollment rejections despite accounting for 17% of K-12 school kids, according to a data analysis of a first-of-its-kind state report.
Disability disparities have also emerged in other states with open enrollment programs. In 2021, Wisconsin districts rejected students with disabilities for open enrollment at nearly three times the rate of other students. This year, technical high schools in Connecticut were accused of discriminating against students with disabilities after denying enrollment to 42 kids, a state report found.
Nebraska administrators and education lobbyists say an increasingly dire shortage of special education staff is to blame for the disparity. The law allows districts to reject applications if they lack the ability or space to accommodate more kids.
Nebraska schools reported 150 unfilled special ed teaching posts last year, and that doesn't include dozens of vacancies districts gave up on filling, said Tim Royers, president of the state teachers union.
Adding more option students to already stretched-thin special ed classrooms would decrease the quality of education while exacerbating burnout that's driving teachers out of the profession faster than schools can replace them, Royers said.
'In an ideal world, we're not turning anybody away through option enrollment because their child has an IEP,' he said. 'We know what we want the system to look like, (but) we don't have the people to accomplish that goal right now.'
Critics say schools have long ignored state law and manipulated transfer enrollment at the expense of kids with disabilities.
'We got here because of self-interest. [Schools] don't want to deal with kids who may require a little more work,' said Justin Wayne, a Democrat and former state lawmaker from Omaha who worked on education issues.
To Democratic state Sen. Danielle Conrad, the high rejection rate for students with disabilities can't be explained away by staffing troubles: 'That's discrimination, plain and simple.'
She's part of a bipartisan bloc of lawmakers that tried unsuccessfully in the just-concluded legislative session to pass a bill barring districts from disproportionately rejecting transfers from students with disabilities.
The proposal failed to advance after heavy pushback from teachers and school administrators, who contended it would have hamstrung their ability to educate the special-needs students they already have. The bill could be considered again when the Legislature reconvenes in January.
It's 'shocking and disappointing' that schools 'and their highly paid superintendents' opposed efforts to stem disability discrimination, said Conrad.
Meanwhile, the toll of rejection continues to weigh heavily on parents like Gleason. It's more than the feeling of injustice — it's the weeks, months and years that go by watching their child trying to thrive in the wrong learning environment.
'We got here because of self-interest. [Schools] don't want to deal with kids who may require a little more work.'
Justin Wayne, former state lawmaker from Omaha
'We tried in a meeting to request more support with a one-on-one paraprofessional, but the school actively advocated against it, telling us no one would apply for the position and that they wouldn't be able to fill it,' Gleason said. 'It was a very stressful time, and we decided to try and enroll in other districts because we had heard other districts do very well at providing services.'
When the Nebraska Legislature first weighed big questions about interdistrict transfers in 1989, nobody had the answers: A track record didn't yet exist.
Minnesota had become the first state to establish an open enrollment program just a year prior. But days before assuming the Oval Office in January, George H.W. Bush gave a hefty endorsement to public school choice, setting off a wave of legislation in state capitols across the country.
Pitched as a way to boost parental engagement and competition among school districts, Nebraska's proposal would eventually make it one of 15 states to require districts to take transfers under certain circumstances.The bill passed narrowly over objections from some lawmakers and school administrators who feared the greater freedom to transfer could undermine neighborhood schools. About 370 kids formed the inaugural class of option students.
The program has proven extremely popular: 1 in 13 public schools students opted out of their home district last year.
The original law prohibited schools from creating rejection standards based on 'handicapping conditions,' previous academic performance or athletic ability. But the state didn't require districts to provide data on their rejections.
Spurred by persistent complaints from fed-up parents about kids denied transfers because of their IEPs, lawmakers passed a bill in 2023 mandating that districts determine their special education capacity on a case-by-case basis rather than closing their whole program to option students, as Papillion La Vista had done.
The bill also required public schools to report the number of option applications they rejected from students with and without disabilities.
The report released last year by the Nebraska Department of Education revealed a widespread practice among districts of denying students with IEPs at disproportionate rates.
Bellevue Public Schools stood out from the pack: All 30 of the district's denials during the 2023-24 school year were students with IEPs. The district later confirmed that of more than 250 option students it accepted that year, only 10 had active IEPs.
Michele Zephier's son, Dylan, was among those denied a transfer to Bellevue in 2018 after poor experiences in Omaha and Millard schools.
Dylan, who has Down syndrome and autism, was being secluded up to eight times a day because of his behavior while in third grade in the Millard district, Zephier said. He was often absent because he dreaded coming to school.
The district declined to comment on individual students but said in a statement that it 'works as a team with families to place children in the least restrictive environment possible.'
After being rejected by Bellevue because of its special education capacity, Zephier was desperate for something different. She sold her house and moved to a small apartment inside the Bellevue district boundaries, guaranteeing enrollment.
In a statement, the Bellevue district cited staffing shortages as the reason for the rejections. At the start of the 2023-24 school year, the district was down four special ed teachers and 29 paraprofessionals.
'The decision to deny an application is never made lightly,' the statement said. 'We fully recognize the impact these decisions have on families, and we continue actively working to recruit and retain qualified staff to support our students.'
The district denied 36 of the 46 students with IEPs who applied for transfers for the 2024-25 school year, though most of the rejected applications came in after a preliminary March 2024 deadline, said spokeswoman Amanda Oliver.
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During the two years Zephier lived in the Bellevue district, Dylan was often secluded in an adjoining room for behaviors like pushing teachers away and shoving items off his desk, she said.
She decided to move 60 miles away to the state capital, Lincoln, in 2020 as a last-ditch effort to find something better. She broke her apartment lease, drained her savings and eventually found the right public school for her son there.
'All those bad behaviors disappeared. Now he's included. He's in the band. He performed in the state band competition. He's had solos on the stage,' she said. 'There are districts that are known for having a lot of strengths in special education — they're just really good at it or they built programs that have benefited students who can option into that district.'
Option enrollment has long resembled a one-way street out of the Omaha district and into higher-achieving suburban schools.
Last year, more than 5,700 kids opted out of Omaha to attend other districts, while just 875 went in the other direction.
Option enrollment has been a boon for suburban districts like Millard and Westside, allowing them to fill seats and keep their per-student costs down, said former Republican state Sen. Lou Ann Linehan.
But critics contend that the same districts taking in hundreds of option students won't give kids with disabilities a fair shake.
In 2023, Millard Public Schools enrolled the most new option students in the state, but 27 of its 34 denials were for students with IEPs. What the state report didn't show, said spokeswoman Rebecca Kleeman, is that the district had accepted 60% of the kids with IEPs who applied that year and more than 90% the year prior.
'We exist to educate children, and we want to accept as many as we can. We also want to be careful not to exceed capacity of any program so that we can serve our students effectively,' Kleeman said in an email.
Westside Community Schools received about 700 option applications, more than any other Nebraska district, and rejected about half. Roughly 25% of the denied students had IEPs.
The district welcomes option students, 'but our first responsibility is to the families who live in our district, so we must ensure we have adequate space, staff and services for all students,' said district spokeswoman Elizabeth Power in a statement.
In Papillion La Vista, students with disabilities made up 14% of accepted option applications but 56% of rejections in the 2023-24 school year.
The disproportionate rates happened because the school board voted in fall 2022 to close its K-12 special education program to option students for the following year. It just didn't have enough teachers and staff to take on more students, said Christopher Villarreal, a district spokesman. The district reversed course following the enactment of the 2023 law, but capacity issues remain, he said.
'It's program capacity. So if there's a special ed reason for denial, that special ed reason is going to be because of capacity — but I accepted a bunch (of special ed students) too,' said Tammy Voisin, Papillion La Vista's director of special services. 'So you accept up to a certain point, and then you say, 'Now I can't accept any more.' '
But Conrad said the 'capacity argument just doesn't hold any water for me,' since districts would have to find a way to provide special ed services to families that move within their boundaries.
'We can't just throw up our hands and say 'capacity' if I move into the district, but that's what we're doing right now for kids and families with special needs who want to utilize option enrollment,' she said at a February bill hearing.
Voisin said that when the special ed program is full and a student with disabilities moves into the district, administrators 'figure it out' by shifting teachers to different buildings or hiring more staff. But because the school board sets firm staffing numbers each fall for the following year, she said, the district can't suddenly hire more people if it receives too many option enrollment requests.
Republican state Sen. Dave Murman, who sponsored the bill to ban the disproportionate denial of kids with IEPs, said districts that receive more option students than they lose are typically better staffed in special ed than those like Omaha, where students are trying to transfer out.
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Those 'option positive' districts should be more easily able to adjust their staffing to take in additional students with disabilities than Omaha, Murman said.
Omaha Public Schools' teacher shortage grew so severe in 2023 that the district eliminated special ed programs at three elementary schools a week before the school year started. The district gave about 140 families the option to move their kids to another school or forgo their IEP accommodations.
Staffing levels have improved from that low point, and special ed programs at the three schools returned last year. But Nebraska's biggest district still faces gaping personnel holes, including vacancies for 62 special ed teachers, 63 classroom support staffers and 20 speech pathologists.
Omaha has 'a deep commitment to student success' and actively recruits staff year round in a competitive marketplace to meet students' needs, a statement from the district said.
Wayne noted that suburban districts can contract with Omaha Public Schools and private businesses to provide specialized services to kids with IEPs.
Lawmakers also say they've recently increased state funding for special ed and for per-pupil payments in districts that take lots of option kids, making it financially viable to accept transfer students with disabilities.
'Every reason that I've heard in the Legislature of why a school district may or may not take a kid in the Omaha area, to me, they're just flat-out lying,' Wayne said.
Districts that 'pick and choose' which option students to take are shrugging off state law because there's no penalty, Linehan said.
'If you get a speeding ticket, you get a fine. If you're a school and you ignore the rules, so what?' she said.
Royers, the union president, acknowledged that some districts may have taken disability rejections too far — especially for students with slight hearing loss or other minor disabilities that don't require special accommodations. Those districts should be held accountable, he said.
'If you get a speeding ticket, you get a fine. If you're a school and you ignore the rules, so what?'
Lou Ann Linehan, former state senator
But in most cases, he said, staffing shortages are the real barrier, and some teachers are already in a situation where it's 'mathematically impossible for them to meet all of the instructional-minute requirements for all of the students on their caseload.'
The uneven denial of students with disabilities in Omaha-area districts has been playing out on a small scale in small towns.
In fall 2015, Gary Shada didn't know that moving his family to a house a mile outside the Pierce Public Schools district in northeast Nebraska would upend his daughter's education.
Shada, a teacher in the district for more than 30 years, had a son in kindergarten at the time. His daughter Kylee, who has Down syndrome, was enrolled in the district's preschool. Because his new address fell in the neighboring Plainview district, he had to use option enrollment for his children to continue their education in Pierce for the 2016-17 year.
His son's application was accepted. But Shada said Pierce Superintendent Kendall Steffensen told him it wouldn't be possible for Kylee because the elementary school's special education program was at capacity.
Shada appealed to the Nebraska State Board of Education, but it upheld Pierce's decision.
Kylee, who just completed seventh grade, is still enrolled in Plainview Public Schools, while her brother is in Pierce. Last school year, Shada hoped Kylee could try option enrollment again and attend Pierce High School, making transportation easier and ensuring his two children were in the same building. But, he said, Steffensen told him it's not going to happen and said, 'Don't ever bring it up again.'
Steffensen couldn't be reached for comment after multiple attempts.
'I just got shot down at every turn. But I'm not saying that Pierce did anything different than any other district would do. That's why I feel that something has got to change when it comes to option enrollment and kids with special needs,' Shada said. 'You can't just look them in the eye and say, 'Oh, they have an IEP. We don't want them.' '
Few parents have appealed denials, like Shada, and even fewer have succeeded in changing the outcome.
Since 2008, the State Board of Education has ruled on 15 appeals of applications rejected for special education capacity shortages, including two that were later withdrawn. The elected panel overturned only two denials.
For Murman, conversations about special education invoke thoughts of Whitney. His adult daughter lives with Rett syndrome and received instruction catered to her needs as a kid.
But when another of his daughters sought to opt out of their home district in the program's early days, the first question on the application was: 'Does your student have an IEP?'
Murman said he understood that the district needed the information, but it made him wonder how it was being used.
Three decades later, Murman led the recently thwarted effort to close the disability disparity in option enrollment as the chair of the Legislature's Education Committee.
His bill would have prohibited districts from denying option applications from most kids with disabilities at rates beyond the statewide percentage of students with IEPs — currently about 17%.
The proposal, introduced following an Omaha World-Herald investigation, left a carveout for districts to deny applications from students with severe disabilities that require them to spend more than three-fifths of their school day outside the general ed classroom — a nod to special ed staffing difficulties. But it would have provided extra funding to schools that accept those kids.
School administrators resisted the bill from the start and kept the pressure on their local lawmakers to oppose it, Murman said.
Hastings Public Schools Superintendent Jeff Schneider told Murman's committee in February that the bill's passage would force his district to consider taking 'a backward step' by closing option enrollment to all students.
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The district has capacity in general education, but 'we are overloaded in special ed … so, this scares the heck out of us because we are already struggling,' Schneider said.
Ultimately, the bill never came before the full Legislature. With time winding down in the legislative session and lawmakers reluctant to buck their local superintendents, Murman knew he didn't have the votes.
The Republican said he plans to work out kinks in the bill with opponents and try again next year.
Lawmakers also dashed plans to pay tuition for special ed teachers-in-training if they stay in state after graduation, and another bill to give special ed teachers several paid days to do federally mandated paperwork failed to advance.
The Legislature's unwillingness to embrace these quality-of-life improvements for special ed teachers is frustrating, Royers said.
Royers maintains that if the bill's backers would give districts three years before it took effect, education groups could recruit enough former teachers back into the field to resolve the disparity in option rejections.
For Gleason, fighting for Teddy's education is still a priority, but she doesn't think she'll apply to districts again next year, since the bill didn't pass. She said moving to a different district, as Zephier did, might be the answer.
'Trying to find support outside of [Omaha Public Schools] is nearly impossible,' she said. 'Because if you try to opt into another district, you probably aren't going to get in — not if your child has an IEP.'

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