Holder goes, Justice Department’s Wisconsin school choice probe goes on

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — U.S. Attorney General Eric Holder may be stepping down, but his agency’s “power grab” investigation into Wisconsin’s school choice program appears to be going on … and on… and on …

Holder, arguably one of the more controversial attorney generals the nation has known and certainly one of the longest serving, announced his pending retirement Thursday. Holder, who critics say politicized the office like few AGs have, will remain on until his successor is confirmed, his boss, President Barack Obama said during a praise-filled press conference.

“I thank you all for joining me on a journey that now moves in another direction, but that will always be guided by the pursuit of justice and aimed at the North Star,” Holder said, his voice choking with emotion, at Thursday’s press event.

Advocates for Wisconsin’s nation-leading school choice program, caught in an “ongoing investigation” by the U.S. Department of Justice, are critical of Holder’s idea of “justice.”

Nearly a year and a half after launching the discrimination probe, the Justice Department’s dragnet remains “an active investigation,” according to Rick Esenberg, president and founder of the Wisconsin Institute for Law & Liberty, or WILL.

The Milwaukee-based public interest law firm is representing Wisconsin’s voucher schools and other school choice programs.

The Justice Department has not returned more than a dozen calls and emails from Wisconsin Reporter seeking comment. An official from the state Department of Public Instruction, which is cooperating with the DOJ in its investigation, this week said he had nothing new to report.

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 2013 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 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. 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 WILL to DOJ.

WILL sent its legal analysis on behalf of school choice groups to DOJ in August 2013.

WILL explains to Justice Department officials what they 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, 2013, 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 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.

“Their investigation into our school choice program is baseless, and is reliant on legal theory that is completely unprecedented,” CJ Szafir, associate counsel and Education Policy director for WILL, told Wisconsin Reporter earlier this year. “It’s another massive power grab by the federal government.”

Esenberg said the Justice Department has refused his law firm’s open records requests seeking information on the case.

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 teachers unions and the public school system.

Earlier this year a federal court shot down the Justice Department’s campaign to kill Louisiana’s school choice program.

The judge denied the DOJ’s quest to be able to individually deny vouchers, mainly to impoverished minority students stuck in Louisiana’s failing public schools.

Esenberg said Holder has become more and more involved in politics over his nearly six-year tenure as AG.

“What I do know is (the Justice Department under Holder) has taken a very aggressive and questionable position with school choice in Wisconsin, like they did in Louisiana, like they did with voter ID,” he said. “They have definitely taken, if not political, very aggressive positions.”