By Paul Brennan | Watchdog.org
MILWAUKEE, Wis. — No results, no explanation and no end in sight.
The investigation has dragged on for four years and the DOJ declines to divulge any information about it.
Last month, the DOJ even refused a request from U.S. Sen. Ron Johnson R-Wisconsin, chairman of the Senate Homeland Security and Governmental Affairs Committee, for information about the probe.
“It was a stiff arm, a stonewall,” Johnson told Watchdog.org, when asked to describe the DOJ response to his request.
Johnson was in Milwaukee this week to chair a Homeland Security and Governmental Affairs Committee hearing on the MPCP.
In the absence of any explanation from the DOJ as to why its investigation is continuing, Johnson suspects the real reason may be a desire to harass the school voucher program.
“I think it’s pretty obvious that this administration, this president, is hostile to school choice. I would argue that it’s because they’re beholden to the teachers unions,” Johnson said.
The DOJ launched its investigation in 2011 following a complaint from the American Civil Liberties Union, Disability Rights Wisconsin and two unnamed families alleging the MPCP discriminates against students with disabilities because the private schools participating in the program do not always provide the same level of service for disabled students that public schools do.
Recognizing that private schools do not have access to the same governmental resources as public schools, the ADA doesn’t require private schools to provide the same services. But the complaint claimed that because private schools in the MPCP accept public money they should be held to the same standards as public schools.
“This is very similar to what Herb Grover tried to do 25 years ago,” Dick Komer, a senior attorney at the Institute for Justice who specializes in school choice matters, testified at the Senate committee hearing.
Herbert Grover was Wisconsin’s superintendent of public instruction when the MPCP was created in 1990. Grover, an outspoken opponent of the program, directed the Department of Public Instruction to treat any private school accepting voucher students as a public school since the vouchers were funded with state money.
“It was a transparent effort to kill the program,” Komer said.
After Grover announced his intention, the issue of whether private schools in the voucher program could be regulated in the same way as public schools was referred to U.S. Department of Education, where Komer was then serving as deputy assistant secretary for civil rights.
Komer was on the task force that examined whether private schools are essentially public schools once they accept publicly funded vouchers.
“Our answer was clear. They are not,” Komer said.
A series of court rulings have since confirmed the DOE decision.
“Now 25 years later, the Justice Department is investigating the MPCP and trying again to say that through the American with Disabilities Act private schools have to act like public schools,” Komer said. “This effort is no more well-founded legally than the original effort was.”
The possible lack of any legal foundation hasn’t stopped the DOJ from using the investigation to demand DPI make changes in how it runs the MCPC.
“They are very proactive in altering the administration of the school choice program,” said C.J. Szafir, education policy director and senior counsel at the Wisconsin Institute for Law and Liberty. “They’re telling DPI to do a variety of things that DPI, by its own admission, has no legal authority to do.”
First, DOJ ordered DPI to collect data from private schools on students with disabilities.
“Then, without any warning, DPI, following DOJ instructions, created an elaborate complaint procedure to file complaints against the school choice program or private schools. The complaint form is very vague. It’s for DPI to forward information to the DOJ, but there’s no appeals process to contest any claim of discrimination,” Szafir explained.
“There’s no state authority for DPI to do either. Whether these are good ideas or bad ideas, there needs to be authority from the state legislature to do these things,” Szafir said.
In May, WILL filed an open records request with DPI to discover how many complaints of discrimination against students with disabilities by schools in the MPCP had been filed.
“There have been no complaints filed since the beginning of the investigation,” Szafir said.
At the beginning of the investigation DPI informed DOJ it had never received any such complaints.
Johnson is determined to find out how a single complaint grew into a multi-year investigation. He has sent another request to the DOJ to provide his committee with information about the probe. DOJ has until July 30 to produce documents.
If it fails to do so, Johnson will consider taking stronger action.
“Hopefully it doesn’t have to result in a subpoena, but if it does I won’t be afraid to issue one,” Johnson said.
Contact Paul Brennan at [email protected]