Senator accuses DPI chief of ‘mismanagement, deceit, and undermining’

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – The fallout continued Monday following last week’s release of the state Department of Public Instruction’s controversial questionnaire to Wisconsin school choice program schools.

Sen. Paul Farrow, R-Pewaukee, sounded a tone of aggravation and accusation in a letter DPI Superintendent Tony Evers.

Farrow blasted Evers and the public education department, accusing each of bias and animosity toward Wisconsin’s parental choice program, which includes vouchers for poor students to participating private schools

“I am disappointed in your mismanagement, deceit, and undermining of not only the parental school choice programs, but of the authority of the Legislature as well,” Farrow scolded Evers in the letter.

The lawmaker, who asserts there are many unanswered questions surrounding the controversial mailing, filed an Open Records Request with DPI seeking to find out what the agency knew and when it knew it.

Earlier in the day, State Sen. Alberta Darling, R-River Hills, and state Rep. John Nygren, R-Marinette, released a joint statement criticizing the agency for sending an “unprecedented” notice to all administrators of the Wisconsin school choice program, requesting detailed information from private schools in the 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.

Said data appears to be related to the U.S. Department of Justice’s “ongoing investigation” into the school choice program, a probe that is nothing more than a “massive power grab,” a federal fishing expedition, according to school choice advocates.

“If (U.S. Attorney General) 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,” Darling and Nygren, co-chairs of the Legislature’s powerful joint Committee on Finance wrote. “We won’t stand by and let the Obama Administration kick poor kids out of their schools at the expense of Wisconsin taxpayers.”

Data regarding students with disabilities have never been included in that database. But more than a year after the Justice Department began looking into 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.

Jim Bender, president of School Choice Wisconsin, an advocacy organization, said DPI’s vague information request could put participating schools in peril of illegally divulging medical and other personal information about students protected under privacy laws.

In his letter to Evers, Farrow said that even after DPI previously acknowledged that it has no statutory authority to make or enforce such information requests, it went about fulfilling a legally questionable ‘requirement’ of the Justice Department, and “sent an intimidating letter to all schools in the parental choice program, giving them a mere 20 days to comply with little or no training or support to help the schools understand what was being collected and why.”

Farrow, in his records request to DPI, is seeking answers to several questions:

1) When was the decision to have an additional report on student disabilities made? Lawmakers request any and all documents discussing the inclusion of Disability Data Report

2) Why was the notification of the reports provided on June 10, 2014? That only gave schools 20 days to prepare their information should they choose to comply with your requirement? What type of training is DPI providing schools to ensure the quality of the data submitted?

3) What is the purpose of attaining this information? How will DPI and the U.S. Department of Justice use this information on disabilities to improve education for all of Wisconsin’s children.

4) How did DPI fund the development of the data collection form, and who is paying for the ongoing collection and storage of this data?

5) Given the extremely sensitive nature of the data DPI is attempting to collect, what security guarantees can the Department provide the children and families who have now found themselves involved?

Farrow’s letter seems to sum up the frustration many Republican lawmakers feel toward Evers, DPI and the agency’s long history of conflict with Wisconsin’s school choice program, dating back nearly 25 years.

“Your animosity toward our state’s parental choice programs has been well documented, and in the past you have called the choice programs ‘morally wrong,’” Farrow wrote. He and other school choice supporters assert DPI has long manipulated data to make public schools appear stronger-performing than choice schools.

One education official close to the issue tells Wisconsin Reporter that there may be a renewed call for divorcing DPI from its administration role in the state’s school choice program, which has, under Republican leadership in the Legislature, been allowed to expand beyond Milwaukee’s borders to Racine and then statewide in recent years.

DPI spokesman Thomas McCarthy and other agency officials have not returned several requests for comment from 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.”

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.”

A spokeswoman for the Justice Department has not returned a dozen requests for comment from Wisconsin Reporter.

Farrow and many of his fellow Republicans in the Senate see DPI’s willingness to apparently work with the Justice Department in this unprecedented investigation as a breach DPI’s obligation to the state of Wisconsin.

“Once again, you and the Department of Public Instruction (DPI) have damaged the fragile trust members of the Legislature have in your ability to guide all aspects of k-12 education in Wisconsin,” Farrow wrote in his letter to Evers.

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