Obama administration declares war on School Choice, liberty group claims

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — President Obama has declared war on School Choice, and an “ongoing investigation” into Wisconsin’s school voucher program is among the Obama administration’s most significant assaults, according to a Milwaukee-based public interest law firm that is fighting back.

In an op-ed, published Wednesday in National Review, Rick Esenberg and CJ Szafir of the Wisconsin Institute for Law & Liberty assert U.S. Attorney General Eric Holder and the Department of Justice are operating under legal theories that are unprecedented and baseless.

“Under the guise of ‘equality,’ the United State Department of Justice is waging a campaign to slam the schoolhouse doors on thousands of poor children living in states that have decided to give them the same educational options enjoyed by wealthy families,” the authors write in their piece, headlined “Obama’s War on Vouchers Rolls On.”

“The ongoing investigation into Wisconsin’s school-choice program proves that the Obama Justice Department has no intention of letting up,” the authors declare.

A Wisconsin Reporter investigation in April found the Justice Department continues its secret probe into Wisconsin’s School Choice program, an investigation School Choice defenders have described as another “massive power grab” by the Obama administration.

While the Wisconsin Department of Public Instruction has tepidly told the Justice Department 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 provided to Wisconsin Reporter by the Wisconsin Institute of Law & Liberty.

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, the Justice Department believes Wisconsin’s School Choice, or Parental Choice, program has discriminated against students with disabilities. They’ve done so, says the Justice Department, 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 threatens that “the United States reserves its right to pursue enforcement through other means.”

There are a couple of problems with the Justice Department’s suppositions and threats, however. 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.

In its response, WILL explained 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.

Beyond that, state law prohibits School Choice schools from discriminating against students.

The Justice Department has failed to return at least a dozen requests for comment from Wisconsin Reporter.

But Ellen Canale, from the DOJ’s Office of Public Affairs, told the Journal Sentinel that she was “unable to comment on the existence of any investigation.”

“What I can tell you is that DOJ is engaged in ongoing efforts to ensure that states administer and operate their school choice programs consistent with their obligations under federal civil rights laws,” she said in a statement to the newspaper.

A DPI official recently told Wisconsin Reporter the agency had nothing to add to what already has been reported.

Policymakers in states such as Wisconsin and Louisiana have “determined that one response to a failing education system is to provide low-income families with the ability to decide where to send their children to school, whether it be traditional public, public charter, or private schools,” Esenberg and Szafir write in the National Review piece.

They note that Wisconsin’s school voucher program, the nation’s oldest and largest voucher program, boasts an enrollment of 25,000 children — children who have moved from poorly performing public schools to private schools. The newer Louisiana Scholarship Program allows 6,775 low-income students who attend schools graded C, D, or F by the state to attend a private school, according to the op-ed.

“But that idea — a vibrant example of states being ‘laboratories of democracy’ and promoting educational innovation – has come under attack by Eric Holder’s Justice Department in both places,” the authors write.

Last year, the Justice Department filed a lawsuit against Louisiana claiming the state’s School Choice Program violated a nearly 40 year-old desegregation order that prohibits public funds from going to private schools in “ways that promote segregation.”

“The problem was not that school choice was enabling white children to flee public education — over 90 percent of children using a voucher are racial minorities — but that these black and Hispanic families might choose schools that do not fit the government’s preferred color palette,” Esenberg and Szafir write.

Last month, eight senators, including Majority Leader Scott Fitzgerald, R-Juneau, sent a letter to the state Department of Public Instruction 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 states. “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.”

Also last month, a federal judge ruled that Louisiana must provide the Justice Department data on voucher applicants and private schools in the program.

“Presumably, the Justice Department will use this information to determine whether parents have chosen their schools in a way that the federal government agrees with,” the National Review opinion piece asserts.

No matter where Americans stand on School Choice, these issues are not the domain of the federal government, “of bureaucrats thousands of miles away operating under dubious legal theories,” the authors insist.

“Apparently, when the preferences of low-income families run contrary to the vested interests of the education bureaucracy and teachers’ unions, the Obama administration’s much ballyhooed ‘empathy’ turns into outright hostility,” they conclude.

Read the full op-ed here

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