Senators demand answers on feds’ meddling into WI School Choice program

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Republican state senators want answers from the state Department of Public Instruction about an “ongoing investigation” by the U.S Department of Justice into Wisconsin’s School Choice program.

In response to a Wisconsin Reporter investigative piece in late April on the probe that School Choice supporters describe as another “massive power grab” by the Obama administration, eight senators, including Majority Leader Scott Fitzgerald, R-Juneau, have sent a letter to DPI demanding the agency keep lawmakers updated on any actions the federal government has taken or is planning to take.

“These media reports have indicated a troubling federal overreach into Wisconsin’s education system,” the letter states. “From attempts to increase data collection to the threats of additional federal regulations and unspecified ‘further’ action, our parental choice programs face an uncertain future.”

As Wisconsin Reporter first reported last month, the DOJ’s “ongoing investigation” into the School Choice program continues without any apparent end more than a year after the agency began poking around.

While the state Department of Public Instruction has tepidly told DOJ the federal Justice Department doesn’t have authority to push its power trip on the state, DPI seemingly has been willing to assist in what school choice supporters see as nothing more than an ill-advised fishing expedition, according to documents obtained by Wisconsin Reporter.

On April 9, 2013, the Justice Department sent DPI a letter demanding the state education agency do more to “enforce the federal statutory and regulatory requirements” under Title II of the Americans with Disabilities Act.

In short, DOJ believes Wisconsin’s School Choice, or Parental Choice, program has discriminated against students with disabilities. They’ve done so, says DOJ, either by denying access to voucher-based private schools or by expelling or “constructively” forcing disabled students to leave the schools “as a result of policies and practices that fail to accommodate the needs of students with disabilities.”

DOJ opened what one agency official described in November as an “ongoing investigation” on the basis of a complaint brought by Disability Rights Wisconsin and the American Civil Liberties Union of Wisconsin.

If DPI doesn’t address the alleged problems, the Justice Department threatens that “the United States reserves its right to pursue enforcement through other means.”

There are a couple of problems with DOJ’s suppositions and threats, however. First and foremost:

“DPI has no authority under state law to force Choice Schools to do what DOJ demands or to deny eligible families the opportunity to send their children to an otherwise eligible school if they don’t,” notes a sternly worded response from the Wisconsin Institute for Law & Liberty, or WILL, to DOJ.

WILL, a Milwaukee-based public interest law firm, sent its legal analysis on behalf of School Choice groups to DOJ in August 2013.

WILL explains to Justice Department officials what it probably should know, that Title II of the ADA has never applied to private entities, including schools, except when a public body has “contracted out” its duties to a private entity. There is no such contract for service involved in the state’s choice program, including the state’s 25-year-old voucher system, which uses a portion of taxpayer money to subsidize the cost of tuition at private schools for eligible students who wish to transfer or, some say, escape, the public school system.

And private schools are not public entities, a point upheld on a couple of occasions by the Wisconsin Supreme Court. The court has held that the use of vouchers at private schools does not transform them into “public schools,” WILL noted.

“DOJ seeks to commandeer a state agency (DPI) to enforce a law against private schools that does not apply to them through means that the state agency has no authority to employ,” the liberty rights group wrote.

DPI, no fan of the voucher program, agreed with the conservative WILL.

In a letter, dated Nov. 25, to Renee Wohlenhaus, deputy chief of the Disability Rights Section of DOJ’s Civil Rights Division, DPI chief legal counsel Janet Jenkins writes that “DPI has concerns regarding its authority to comply with the specific requirements outlined in” the DOJ’s threatening letter. Jenkins seconds WILL’s argument, that the “Wisconsin Supreme Court has consistently held” that School Choice schools remain private, not public.

“The DPI has only limited statutory authority in administering the Choice program,” Jenkins wrote.

In their letter, the senators agree that private schools in the choice program need to be held accountable, but that process is the domain of the state.

“Our concern is with the lack of information being provided regarding this ongoing investigation, and the potential ramifications it may have on participating families and schools,” the senators write. “To that end, we ask that you please update our offices about changes the federal government is demanding be made to our parental choice programs, as well as whether changes have been made or are in the process of being made by the Department of Public Instruction in response to this investigation …”

The senators seek copies of any correspondence between DPI and the Justice Department on the matter.

A DOJ spokeswoman who originally said she would respond to Wisconsin Reporter’s question about the status of the investigation has failed to return several calls. So have officials from DPI.

But Ellen Canale, from the DOJ’s Office of Public Affairs, told the Journal Sentinel that she was “unable to comment on the existence of any investigation.”

“What I can tell you is that DOJ is engaged in ongoing efforts to ensure that states administer and operate their school choice programs consistent with their obligations under federal civil rights laws,” she said in a statement to the newspaper.

CJ Szafir, associate counsel and Education Policy director for WILL, told Wisconsin Reporter on Thursday the Justice Department’s investigation is “unprecedented and without merit.”

DPI’s Jenkins, in the November letter, insisted that the agency was “not aware of any discriminatory policy or practice that it employs in respect to its administration of Choice programs.” While there may be individual examples of discrimination, DPI asserts there is no systemwide policy of discrimination as DOJ seems to suggest in its letter.

School Choice proponents say the point is moot. As WILL notes, state law requires that Choice schools may not deny admission to any student on the basis of disability and that DPI provide vouchers to families of disabled and non-disabled students alike.

Szafir said DPI must be as “transparent as possible regarding their communications with the Justice Department, as well as their plan in responding to the Justice Department’s demands for more regulations on school choice.”

“The letter from Majority Leader Fitzgerald and the Senate Republicans will go a long way in achieving that,” he said.

Contact M.D. Kittle at mkittle@watchdog.org