U.S. Sen. Ron Johnson has proposed an amendment to the fiscal 2017 spending bill for the Justice Department that is aimed at stopping DOJ from using Title II of the Americans with Disabilities Act to harass private schools participating in voucher programs.
The Wisconsin Republican said a DOJ investigation that began in 2011 into whether schools participating in the Milwaukee Choice Program violated the ADA prompted the amendment. The investigation concluded in December 2015 without finding any discrimination.
“The Department of Justice had this four-year investigation, they had this hanging over the head of the Milwaukee school choice program, and as a result they had that cloud,” Johnson said in an interview. “The Department of Justice should actually follow the law and not exceed their jurisdiction.”
“Title II does not apply to private schools. Just because you accept a school voucher, just like Wal-Mart accepts food stamps, it does not make you a public institution and Title II doesn’t apply to you,” Johnson said.
CJ Szafir of the Wisconsin Institute for Law & Liberty explained in an interview that Title II prevents government institutions from discriminating against children with disabilities when it comes to government benefits. “It covers all public entities, it includes the federal government, state government, municipalities and public schools,” Szafir said.
“Traditionally, private schools have been regulated under Title III, while public schools have been regulated under Title II,” Szafir said. “This matters because Title II requires public entities to accommodate students with disabilities unless doing so would fundamentally alter their program. That is a high standard, and that standard is reflective in Title III, but the only difference is Title III has a religious exemption.”
Szafir said the religious exemption includes religious schools. “And it matters when 86 percent of MCP schools are religious and they’re exempt under the Americans with Disabilities Act,” Szafir said.
Szafir said one of the reasons the schools are treated differently is because public schools receive additional funding for students with disabilities, while schools participating in the MCP in most cases do not.
In addition, state and federal courts, as well as opinions by the Department of Education and Wisconsin’s Department of Public Instruction, have said that schools participating in the voucher programs are not government entities.
“Title III protections are still in place,” Szafir said of Johnson’s amendment. “There is still protection from section 504 of the Rehabilitation Act, which prohibits any entity which receives federal funding from discriminating against children with disabilities. And also, this amendment doesn’t prohibit any individual from bringing a lawsuit against a school in the court.”
“All it’s doing is specifying that the United States Department of Justice, the nation’s top law enforcement agency, has to follow federal law,” Szafir said. “I know it’s shocking to actually say that, but the amendment really doesn’t change the status quo. All it does is prevent the Justice Department from making up the law as it goes along.”
Despite the court precedents saying that private schools receiving voucher funding for choice program students are not public entities, school choice critics attacked Johnson’s amendment.
Karyn L. Rotker, a senior staff attorney at the American Civil Liberties Union of Wisconsin, told the Washington Post last week that she had “a serious concern” about the amendment. “We’re talking about schools that serve tens of thousands of children, and that would not have obligations under the ADA to reasonably accommodate children with disabilities,” Rotker said.
Johnson said the ACLU is incorrectly describing his amendment.
“This is not preventing anyone from investigating discrimination, but they cannot utilize any funds to apply Title II of the Americans for Disability Act for private schools,” Johnson said. “It’s being completely misconstrued, taken completely out of context, and it’s being done by people who hate school choice.”