DOJ probe into WI School Choice ‘another massive power grab’ by feds

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – More than a year after the U.S. Department of Justice began shoving its nose into Wisconsin’s School Choice program, the federal agency’s “ongoing investigation” continues without any apparent end.

And 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 has seemingly 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.

“The State cannot, by delegating the education function to private voucher schools, place students beyond the reach of the federal laws that require Wisconsin to eliminate disability discrimination in its administration of public programs,” DOJ officials wrote in their letter to Tony Evers, superintendent of the state Department of Public Instruction.

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, 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.

Limited authority

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.

And Jenkins insists that DPI is “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.

Power trip trend in the making?

CJ Szafir, associate counsel and Education Policy director for WILL, said School Choice advocates worry Wisconsin will become the “next Louisiana” under DOJ meddling.

The Justice Department has sought veto power of scholarships or vouchers given to Louisiana public school students that would use them to attend a school of their choice.

A federal judge earlier this month ruled that Louisiana must annually provide the Justice Department with “timely” information about race information of participating School Choice students so DOJ can monitor the program’s influence on school segregation.

“We welcome the court’s order, as it rejects the state’s bid to resist providing even the most basic information about how Louisiana’s program will affect school desegregation efforts,” U.S. Attorney General Eric Holder said in a statement. “This ruling ought to resolve, once and for all, the unnecessary dispute initiated by the state’s refusal to provide data.”

Louisiana Gov. Bobby Jindal has effectively said it’s none of the DOJ’s damn business. Critics have argued it’s preposterous that a federal agency is concerned about segregation in a School Choice program specifically aimed at providing alternative educational opportunities for children from low- and moderate-income families.

Wisconsin School Choice advocates see Holder as hostile in general to choice programs, with the Obama administration, they say, at the beck and call of Big Labor.

By demanding Wisconsin “adopt burdensome regulation on its school choice program,” Szafir said the Justice Department is essentially trying to “rewrite state education policy from Washington, D.C.”

“Their investigation into our school choice program is baseless, and is reliant on legal theory that is completely unprecedented,” he said. “It’s another massive power grab by the federal government.”

WILL forwarded to Wisconsin Reporter emails it obtained through an open records request with DPI. The emails show an insistent DOJ demanding information of all kinds from DPI.

“We consider this an ongoing investigation and would appreciate your continuing cooperation. Your earlier messages note your intention to respond,” Wohlenhaus wrote to DPI officials on Nov. 13.

“We are also eager to hear from you in response to our letter.With the school year about to begin, and the expansion of the Choice program, we are obviously interested in moving forward,” Wohlenhaus wrote to DPI agent Ryan Nilsestuen in an email dated July 26, 2013.

Helping a friend?

DPI may have limited authority in the matter, but the agency, led by a Democrat state superintendent, appears to be doing all it can to assist the DOJ’s ongoing investigation.

Just a few weeks ago, DPI sent the Justice Department a story, from an “Occupy Milwaukee” blog, about a choice school allegedly expelling a student due to special needs, according to the emails obtained by WILL.

Wohlenhaus referred Wisconsin Reporter’s questions to a DOJ spokeswoman, who said she would check into the matter. The spokeswoman then failed to return several follow-up phone calls from Wisconsin Reporter for three days last week. DOJ officials said she had been in the office all three days.

Nilsestuen, too, referred Wisconsin Reporter’s questions to DPI spokesman John Johnson. He did not return a phone call.

Asked about DPI’s assertions that it has limited power of School Choice, Monica Murphy, managing attorney at Disability Rights Wisconsin, pointed again to Title II.

“They have obligations to ensure the programs they run and are involved in do not discriminate against kids with disabilities and can’t contract their way out of that,” she said.

Murphy said her office has been in contact with DOJ but has received no information on the status of the investigation.

“I did have a call yesterday (Wednesday) with DOJ. They said they were in midst of things, and let’s not rock the boat,” she said.

“It’s weird how DOJ complaints work,” she added. “If DOJ decides to investigate, they don’t clue us into what’s happening. I think DOJ is happy with some of the responses they are getting from DPI, but we haven’t heard from them.”

Szafir says the Justice Department continues to make legal threats and demands, including requests for enrollment information from private schools.

“The Justice Department is waging a campaign to bring down school choice and those private schools that participate in it,” the attorney said. “People in Wisconsin should be very concerned as to what the Justice Department will do next.”

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