Lawmakers to Justice Department: Take your fishing expedition elsewhere

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Top Republican lawmakers have stern words for U.S. Attorney General Eric Holder and the state Department of Public Instruction regarding an “ongoing investigation” into Wisconsin’s school choice program.

“If Eric Holder wants to go fishing in Wisconsin, we have more than 15,000 lakes. (We) will gladly find him a boat and a guide,” State Sen. Alberta Darling, R-River Hills, and state Rep. John Nygren, R-Marinette, wrote in a joint statement issued late Monday morning. Darling and Nygren are co-chairs of the Legislature’s powerful Joint Committee on Finance. “We won’t stand by and let the Obama Administration kick poor kids out of their schools at the expense of Wisconsin taxpayers.”

Last week, DPI sent a new and “unprecedented” notice to all administrators in the Wisconsin school choice program, requesting detailed information from private schools in the parental choice program regarding students with disabilities.

The state agency asks that the data be added to the annual Online Application System. Schools that participate in Wisconsin’s school choice programs use the OAS to enter student data and complete required reports.

Data regarding students with disabilities has never been included in that database. But more than a year after the Justice Department told DPI it was investigating the state program on allegations there is a systemwide policy of discrimination against students with disabilities within the private choice schools, the information suddenly has become need-to-know.

“As required by the United States Department of Justice (USDOJ), starting with the 2013-14 school year the department is collecting information on how choice students with disabilities are served in voucher schools,” states the DPI notice, obtained by the Wisconsin Institute for Law and Liberty, a nonprofit, Milwaukee-based public interest law firm.

The notice goes on to advise, in confusing terms, that choice schools really don’t have to provide the information if they don’t want to.

“Whereas the Department of Public Instruction cannot require you to submit this data, we request private schools that participated in the choice program during the 2013-14 school year, complete the ‘Disability Data’ report in OAS by June 30, 2014,” the notice states.

Darling and Nygren take aim at the Justice Department’s investigation, saying the federal agency could better spend its time investigating missing Internal Revenue Service emails instead of probing schools that are “giving poor children a chance to succeed.”

The IRS on Friday said it had lost a bundle of emails to and from embattled former IRS division director Lois Lerner in the agency’s targeting of conservative groups. Lerner’s computer apparently crashed during the summer of 2011, according to the IRS.

“This is limousine liberalism at its worst. The families of President Obama and Eric Holder chose not to send either of them to their neighborhood public schools. So why would they deny poor children the same opportunity they had?” Darling and Nygren said in the statement.

Further, the senators say DPI Superintendent Tony Evers and the department “need to come clean to taxpayers about who is paying for their effort to intimidate choice schools.”

Last month, Darling and seven other senators, including Majority Leader Scott Fitzgerald, R-Juneau, 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 stated. “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.”

Aides for some of the senators told Wisconsin Reporter that while DPI may have informed lawmakers of the letter sent out to school choice program schools, it appears DPI’s cooperation with the Justice Department has been in the works for some time.

Officials from DPI and the DOJ haven’t returned several requests for comment from Wisconsin Reporter.

Wisconsin Institute for Law and Liberty said last week that neither DPI nor the federal government have authority to request such information.

“It is indisputable that private schools in the choice program cannot be compelled to turn over data about their students with disabilities,” CJ Szafir, WILL’s education policy director, said in a statement issued late Thursday.

Szafir cautions schools that choose to complete the request should be “aware of the serious legal issues raised” — among them, releasing private information, including health-related data, on students.

As WILL points out in its statement, nothing in Wisconsin statutes empowers DPI to collect data on children with disabilities in private schools or requires private schools in the choice program to provide it.

Jim Bender , president of School Choice Wisconsin, said choice schools have long been under the gun from a state public education agency that has fought against alternatives to the state’s public school system. DPI’s apparent collaboration with the Justice Department, an agency that has been on a quest of late to disrupt voucher programs elsewhere, particularly in Louisiana, only raises the stakes, Bender said.

“We’ve seen DPI manipulate data to the detriment of the choice program time and time again, and to make a request that’s this ambiguous would just lead to that practice once again,” he told Wisconsin Reporter.

As Wisconsin Reporter first reported last month, the Justice Department’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 DPI has tepidly told DOJ the federal agency 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 it do more to “enforce the federal statutory and regulatory requirements” under Title II of the Americans with Disabilities Act.

The DOJ believes school choice participants are engaged in discrimination, 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.”

The Justice Department 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 has threatened 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:

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, according to WILL. There is no such contract for service involved in the state’s choice program, including Wisconsin’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 doesn’t transform them into “public schools.”

“We think it’s unfortunate that DOJ is sticking its nose in Wisconsin business right now under the guise of the Americans with Disabilities Act,” said one Senate aide. “They’ve done this in other states. They don’t like the choice program, and obviously they are using their bully pulpit to push choice schools around.”

Contact M.D. Kittle at mkittle@wisconsinreporter.com