By Ryan Ekvall | Wisconsin Reporter
MADISON — The U.S. Department of Justice has no authority to order the Department of Public Instruction to force Wisconsin’s voucher schools to comply with the federal Americans With Disabilities Act, officials with the Wisconsin Institute for Law and Liberty say.
“DOJ misunderstands school choice in Wisconsin and ignores state and federal law, decades of court precedent, and even long standing federal policy,” Rick Esenberg, president of the libertarian leaning public interest law firm, said in a statement issued Wednesday.
It is, he told Wisconsin Reporter later in the day, “just another federal power grab.”
The Department of Justice in May made a Tony Soprano-like threat to the DPI that unless the agency forced choice schools to meet ADA standards in the 2013-2014 school year, “the United States reserves its right to pursue enforcement through other means.”
Esenberg said if DOJ wants to take legal action, bring it on. Department of Public Instruction officials have told the DOJ they don’t think they have the authority to force voucher schools to follow ADA mandates.
“They’re trying to boot-strap — saying well, DPI is a public entity subject to Title II and the fact that they administer vouchers gives them the authority to somehow force these private schools to comport themselves in a way that fits Title II ,” Esenberg told Wisconsin Reporter.
Title II prohibits discrimination against people with disabilities by all public entities. The regulations also cover programs and services offered by the government, such as public transportation or public housing.
“It’s the equivalent of saying because the state pays welfare benefits, now they are entitled to insist that a place where the benefits might be spent, like Wal-Mart, has to meet the standards in Title II. Congress has made clear under the ADA that Title II is a provision that applies to public entities.”
Private businesses that welcome the public, such as hotels, restaurants, theaters, retail stores, dry cleaners, doctors’ offices, amusement parks and bowling alleys, are not covered by Title II, according to the ADA government website.
“The state should say, and DPI has said — ‘we don’t think we have authority to do these things, you’re wrong. This isn’t what federal law requires,’” Esenberg said.
If DOJ wants to pick a fight over a school system failing to serve students with disabilities, it may want to take a closer look at public school system — you know, the one that feds actually have authority over.
Parents across Wisconsin register more than 100 complaints each year — either through DPI or through mediation — upset that their school district is not complying with the federal Individuals with Disabilities Education Act.
Susan Giaimo, the mother of an autistic child who was bear hugged and had his chest pounded on Tarzan style by staff at his Wauwatosa public school, said she couldn’t get the district to allow her son to move to another public school district through open enrollment.
“We’ve tried to work within the system to get the district to follow the law,” Giaimo told Wisconsin Reporter, frustrated, she said, by a lack of support from the district during the past seven years. “We worked within the system, and the system doesn’t work.”
The public school system discreetly shuts out some special needs student’s access to the open-enrollment process, a public school choice program where parents can move their kids to another school district. Both their current school district and the desired district have to accept the move. And that doesn’t usually happen.
“We are looking at ways to make the open enrollment law more usable for kids with special needs,” Monica Murphy, managing attorney for schools and civil rights at Disability Rights Wisconsin’s Milwaukee office, said. “They are covered under it, but there’s a lot of difficulty. It’s not quite as available for kids with special needs as regular kids.”
The same groups that complained to the DOJ that Wisconsin voucher schools are not serving special needs students opposed giving those voucher schools the funding to better serve special needs students.
Even though state law prohibits private schools from discriminating against children with disabilities in the voucher program, the schools financially can’t afford to accommodate the students, even though private schools are reimbursed about half the average cost of educating a special-needs child.
As part of a school-choice expansion deal in the state budget process, lawmakers scrapped a bill that would have established a new special needs voucher program with increased funding for parents like Giaimo who want to send their children to private schools.
In Wisconsin public schools, meanwhile, 67.1 percent of special needs students who were expected to graduate high school in 2011 actually received a diploma. That fell well short of DPI’s target of 87 percent.
Contact Ryan Ekvall at [email protected] or find him on Twitter @Nockian