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DOJ ‘cloud’ hangs over Wisconsin’s school choice program

By   /   January 28, 2015  /   News  /   No Comments

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — It’s like living under a cloud.

That’s how Jim Bender, president of School Choice Wisconsin, feels about a seemingly never ending, “ongoing investigation” by the U.S. Department of Justice into the state’s parental choice, or school choice, program.

And the DOJ isn’t saying anything about what critics call the agency’s “power grab” probe into Wisconsin’s nation-leading school voucher program. Neither is the federal agency’s apparently complicit state partner, the Democrat-led Department of Public Instruction.

AP file photo

CONSTANT WATCHING: The U.S. Department of Justice continues its four-year investigation into Wisconsin’s school choice program, without legal action, without comment, without hope that it will ever end.

“The DPI and the DOJ, neither one of them are saying boo,” Bender told Wisconsin Reporter last week. “They have not been forthcoming. They’ll say it’s an ‘ongoing investigation,’ but of course it has been an ongoing investigation with nothing to show for it. That’s been the most frustrating part.”

As the celebrations continue on this National School Choice Week, choice advocates are left to wonder just what the DOJ is doing and when it all might end.

Officials from the Justice Department have not returned more than a dozen Wisconsin Reporter calls and emails seeking comment.

Now Wisconsin Reporter has learned that DPI has jumped deeper into its secret partnership with the Justice Department, creating an online complaint procedure for individuals who want to submit complaints to DPI “regarding disability-related discrimination in the Choice programs.”

DPI, according to one constitutional law organization challenging the secret investigation, has no authority to make broad demands on the choice schools, even when ordered by the DOJ.

CJ Szafir, associate counsel and education policy director for the Wisconsin Institute for Law and Liberty, said the DOJ’s investigation, despite going on for more than four years, has produced no evidence of actual discrimination or even a lawsuit.

“Instead, they have completely commandeered the state Department of Public Instruction and forced them to implement a regulatory scheme that DPI simply does not have the legal authority to do,” Szafir said.

“This raises serious 10th Amendment issues. It is deeply troubling to the school leaders and parents of the 30,000 children who use a voucher to attend a school of their choosing.”

WILL, a Milwaukee-based public interest law firm, has challenged the Justice Department probe and DPI’s assisting role on behalf of a very frustrated parental choice community.

The DOJ opened its long-running investigation on Aug. 17, 2011, following a complaint on June 7, 2011, filed by the Americans for Civil Liberties Union. Correspondence between DOJ and DPI began as early as fall 2011, according to documents obtained by WILL in an open records request.

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 program has discriminated against students with disabilities. It has done so, says the 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.”

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 out of — 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.”

It appears DPI has assisted the DOJ in multiple ways, including sending an “unprecedented” notice last year to all administrators in the Wisconsin school choice program. The notice requested detailed information from private schools in the parental choice program regarding students with disabilities.

The state agency asked 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, information that had not previously been included in the database.

Szafir at the time said private schools in the choice program cannot be compelled to turn over data about their students with disabilities, and he cautioned that doing some could raise legal concerns regarding privacy.

Of the 146 choice schools participating in the 2013-14 school year, a total of 14 returned submitted the DPI-requested reports, according to redacted and unredacted documents obtained by Wisconsin Reporter.

Now, DPI has, at the Justice Department’s directive, posted the disability related discrimination complaint form on its website.

Parental choice schools late last year received a letter from DPI’s Molly Koranda advising them of the complaint process.

In the letter, dated Oct. 24, 2014, Koranda notes a DOJ letter from April 2013 requiring Public Instruction to establish the complaint procedure.

“The DPI is required to publicize the procedures and provide copies of complaints to the US DOJ,” Koranda wrote.

Asked about the complaint form, Szafir again said DPI has no authority to “create this elaborate complaint process.”

DPI spokesman Thomas McCarthy said “nothing has changed” since Wisconsin Reporter’s last inquiry into the matter. The spokesman did not comment on DPI’s complaint procedure.

Koranda’s letter to choice schools notes that DPI only has authority to address disability-related discrimination allegations that occur during a choice school’s admission process, although there is some doubt as to that claim. She sounds tentative in just where DPI’s authority lies.

“If the DPI has the authority to address the alleged violation, the department will review the complaint and issue a written decision,” the official wrote. “If as a result of its review, the DPI finds the Choice school has discriminated against a pupil with a disability in its admission process, the Choice school may be required to develop and implement a plan to correct the violation. The DPI will also forward a copy of the complaint, any response from the Choice school, and the department’s decision to the US DOJ.”

The stakes are high. If the Justice Department’s “legally erroneous” theory holds it would likely bankrupt the school choice program, “causing tens of thousands of children from low-income families to be forced out of their schools,” according to a letter WILL sent Tuesday to U.S. Reps. Mark Pocan, D-Madison, Gwen Moore, D-Milwaukee, and David Loebsack, an Iowa Democrat.

The lawmakers have asked the U.S. Government Accountability Office to conduct a federal review of the Milwaukee School Choice Program, citing the DOJ’s investigation into “alarming allegations of potentially discriminatory practices occurring within the program.”

What the liberal lawmakers fail to mention in their request to the GAO is that the Justice Department has made no allegations and produced no evidence of actual discrimination.

For now, the cloud, as Bender put, hangs over parents, students and schools in the choice community, as evidenced by McCarthy’s comment, “nothing has changed.”

“It all leads to the additional uncertainty DPI and the DOJ are bringing upon Wisconsin’s school choice program,” Szafir said. “And schools are increasingly concerned that they don’t know what they have to do under law because DPI is using this baseless theory that goes against the (U.S.) Department of Education and what has been said in the Supreme Court.”

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M.D. Kittle is bureau chief of Wisconsin Watchdog and First Amendment Reporter for Watchdog.org. Kittle is a 25-year veteran of print, broadcast and online media. He is the recipient of several awards for journalism excellence from The Associated Press, Inland Press, the Wisconsin Broadcasters Association, and others. He is also a member of Investigative Reporters & Editors. Kittle's extensive series on Wisconsin's unconstitutional John Doe investigations was the basis of a 2014 documentary on Glenn Beck's TheBlaze. His work has been featured in Town Hall, Fox News, NewsMax, and other national publications, and his reporting has been cited by news outlets nationwide. Kittle is a fill-in talk show host on the Jay Weber Show and the Vicki McKenna Show in Milwaukee and Madison.