DPI being ‘commandeered’ by Justice Department, School Choice advocate says

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – It appears the U.S. Department of Justice’s “ongoing investigation” into Wisconsin’s School Choice program goes on, and the state’s education department is playing the role of DOJ lapdog, according to choice advocates.

On Tuesday, the state Department of Public Instruction sent a new and “unprecedented” notice to all administrators in the Wisconsin School Choice program, according to the Wisconsin Institute for Law and Liberty, or WILL, a nonprofit, Milwaukee-based public interest law firm. WILL has been pushing back on what School Choice advocates have described as a “massive power grab” by the Obama administration.

DPI’s notice requests 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 that there is a system-wide policy of discrimination against students with disabilities within the private choice schools, such 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 WILL.

The notice does go on to advise, in confusing terms, that choice schools really don’t have to provide the information if they do not 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.

So not only is DPI requesting data that it is not legally bound to ask for, the agency is demanding this new and detailed information be provided within a little more than half a month.

“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 that schools that choose to complete this unusual request should be “aware of the serious legal issues raised.”

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.

“Therefore, schools do not have to comply with DPI’s request. In fact, it is doubtful that DPI can even ask for the data. Furthermore, the U.S. Department of Justice cannot require private schools to provide this information – or even DPI to request it,” the law firm states in its cautionary statement, requested by School Choice advocates.

A DPI official did not respond to Wisconsin Reporter’s email seeking comment. But among the more pressing questions is: If DPI can’t request the information, why is it seeking it?

“The Wisconsin Department of Public Instruction is allowing itself to be commandeered by the United States Justice Department contrary to state and federal law,” said Rick Esenberg, WILL president and general counsel, in the statement.

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 Department of Public Instruction 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 the state education agency do more to “enforce the federal statutory and regulatory requirements” under Title II of the Americans with Disabilities Act.

The federal agency 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 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.”

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.

Over the past two months, the Justice Department has failed to return a dozen requests for comment by Wisconsin Reporter.

Szafir says DPI’s notice has caused confusion and concern in the School Choice community.

“What are they going to do with schools that do turn the data over? What are they doing to do with the schools that don’t?” Szafir said. “Are they just going to go give everything to the DOJ? Clearly, there is a reason why the Department of Justice wants them to ask these questions.”

School Choice Wisconsin, the statewide advocacy group for school vouchers, charter schools and “innovative new programs centered on parental empowerment,” sent out a notice of its own Thursday, advising choice schools to tread cautiously.

The organization notes that DPI’s request is problematic for the program and individual schools. Beyond the concerns about protocol and guidance, School Choice Wisconsin warns of the “potential exposure to student and health privacy laws on both the state and federal level.”

“It is clear this request is being driven by the US Department of Justice. The questionable nature of this requirement by US DOJ combined with the dubious use of data by DPI raises too many red flags,” the organization’s letter states. “We believe that the US DOJ misunderstands Wisconsin school choice program and is operating under an unprecedented and inaccurate interpretation of federal disability law that applies only to public entities.”

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