A story today by the Wisconsin Reporter breaks the news that the United States Department of Justice has been continuing its “on-going investigation” into Wisconsin’s school choice program for alleged violations of federal disability law, the Americans with Disabilities Act (“ADA”). It highlights the Justice Department’s frequent contacts with the Wisconsin Department of Public Instruction and threats of legal action against the State if the DPI does not cooperate by, among other things, turning over data on private schools.
Last year, the Justice Department demanded that Wisconsin enforce inapplicable federal disability law against private schools in the choice program (even though they are not public entities). The Wisconsin Institute for Law & Liberty wrote a legal response, pointing out that such actions would ignore state and federal law, decades of court precedent, and long standing federal policy (see WILL’s executive summary and the full legal memorandum).
As we explained in our legal response, the DOJ’s legal argument rests upon the completely inaccurate premise that private schools in the choice program are public entities because they accept payments from parents with a state-funded voucher. But, this is no different than when someone uses food stamps at a grocery store; the grocery store – like private schools in the choice program – is not automatically turned into a public entity for federal disability law purposes. The Justice Department, in short, wants private schools to abide by federal disability law that only applies to public entities – without getting the amount of funding that public schools do to educate children with disabilities.
Rick Esenberg, President of WILL, comments, “What the DOJ is asking of choice schools would force schools out of the program and restrict the choices available to low income families and their children. The Justice Department’s actions have more to do about trying to shut down school choice than helping special needs students.”
WILL calls on the Justice Department to explain the basis for its probe into Wisconsin’s school choice program and the Wisconsin DPI to justify why it is cooperating with the Justice Department.