Tim DeRoche featured the tale of an Arizona boy named Brayden in a Time Magazine piece on the shortcomings of open enrollment practice and law for students with disabilities:
“In May 2022, an Arizona mom named Karrie got a heartbreaking message from the local public school: Her son Brayden wouldn’t be allowed to return as a second-grader in the fall. The reason? Brayden had been diagnosed on the autism spectrum, and the school claimed that it didn’t have any more room for kids with disabilities.”
Brayden’s family had moved outside the Tanque Verde district attendance boundary but had remained enrolled through the open enrollment statute. After Tanque Verde Unified officials went through the process of drawing up an Individual Education Plan with Brayden’s family, however, other Tanque Verde officials kicked him to the curb. They were able to do so because of a canard promoted by Arizona districts known as “program capacity.” The claim essentially is that while the district may have empty seats, it lacks “program capacity” to serve students with disabilities. Arizona districts thus prevent students with disabilities from participating in the state’s largest form of K-12 choice.
Time out! Important nerdy context: Arizona funds the education for students with disabilities by a weighted formula that is imperfect but goes up to ~x6 basic state aid. Charter schools are required to admit students by lottery; districts have a more recent lottery requirement that has a de facto “program capacity” loophole not allowed by the Arizona State Board for Charter Schools (equal protection challenge anyone?) Students with disabilities are overrepresented in Arizona’s ESA program, and there is, in addition, a scholarship tax credit program exclusively for students with disabilities. While districts claim to have “programs,” their SWD populations vary from year to year, as does their staffing.
Okay, time back in! Recently, Ben Scafadi performed an analysis of open enrollment in Kansas. In Kansas, as is generally the case, districts decide their capacity to accept open enrollment students. Scafadi decided to compare the number of seats made available through open enrollment to the overall enrollment trend in those same districts since 2019. Scafadi called this the “Change-in-Enrollment Method” to identify open enrollment capacity. Obviously, districts occasionally close schools, etc., but for the most part, the logic is unavoidable: if you were educating X number of students in 2019, there is every reason to view that as a floor for enrollment in 2024, absent unusual circumstances. Scafadi found discrepancies: 
Naturally, when I saw the Scafadi study, I thought, “Why not apply the ‘Change-in-Enrollment Method’ to Arizona School Districts for students with disabilities?” I filled a hat with the names of Arizona school districts, and purely by chance drew Tanque Verde Unified out of the hat. In 2019, the National Center on Education Statistics put the enrollment for students with disabilities for the Tanque Verde Unified School District at 286. The Arizona Department of Education put the 2025 enrollment for students with disabilities at 206. Thus, the special education “program” at Tanque Verde Unified shrank by 28% between 2019 and 2024, in small part because they purged Brayden.
The basic logic of the Scafadi change in enrollment method applies: if Tanque Verde’s special education “program” was 29% larger in 2019 than in 2025, why was there a need to disenroll Brayden? Moreover, an examination of school district enrollment trends for students with disabilities in Arizona districts generally show more districts losing enrollment for students with disabilities than those gaining.
Tanque Verde Unified is not alone. Collectively, the 10 Arizona school districts with the largest enrollment of students with disabilities in 2019 lost 1,786 students with disabilities since 2019, but there is approximately a 0% chance of a student with a disability accessing any of these districts through open enrollment. Two paths can be pursued to end the discrimination against students with disabilities in open enrollment. First, an enterprising attorney could explore whether the Arizona court system is willing to uphold the “Equal Privileges and Immunities” clause in the Arizona Constitution. Second, lawmakers could pass legislation defining district “program capacity” for students with disabilities as having an enrollment floor not less than their enrollment with students with disabilities at a past date (2010 is a nice even number) and require the districts to make spots available until reaching that enrollment figure.
“Brayden’s Law” has a nice ring to it.
