WILL has been fighting unprecedented, dangerous probe
January 4, 2016 – Milwaukee, WI – As reported in today’s Milwaukee Journal Sentinel, the United States Justice Department’s four year-long investigation into the Milwaukee Parental Choice Program was closed on December 23. The investigation turned up no evidence of discrimination against disabled children or violations of federal law by private schools or the choice program. At the height of the investigation, the DOJ accused Wisconsin of running the choice program in a way that violated federal disability law, demanding that the program change, or else the department would file a lawsuit. It demanded that the state Department of Public Instruction impose standards and oversee these private schools in ways that are not permitted under state law.
Yet it ended with an admission of no wrongdoing. That is good. It brings much needed certainty to the school leaders and the more than 30,000 children using a voucher to attend a private school. The fact that the investigation proceeded at all – and that it demanded that a state agency do things that the Legislature had not directed it to do – remains disturbing.
WILL President and General Counsel Rick Esenberg welcomed the end of the investigation. “This was a typical example of federal overreach. The federal government demanded that the state of Wisconsin regulate private schools in a way that state law did not permit. While it’s gratifying that – after over four years – the federal government finally recognized that there is nothing to see here, it’s troubling that Washington continues to throw its weight around.”
WILL attorneys have been providing legal counsel on the investigation, as well as public advocacy and education about the issues alleged in the complaint and ensuing investigation. Although there was never any evidence of discrimination, the Justice Department’s investigation threatened the existence of the Wisconsin school choice program. It sought to treat private schools like public schools for purposes of federal disability law. This was unprecedented and contradicted various United States Supreme Court cases and the U.S. Department of Education policy. It was also dangerous. In short, the United States Justice Department wanted private schools to provide the same type of services for disabled students as public schools, yet not receive the commensurate federal and state funding that public schools do. This would, over time, cause the school choice program to collapse.
WILL’s work on this case included a legal memorandum explaining why the US DOJ’s legal theory was wrong and dangerous, advised choice schools not to cooperate with the DPI’s illegal actions on behalf of the US DOJ, and testimony for a hearing at the U.S. Senate Committee on Homeland Security and Governmental Affairs. This work appeared in a nationally syndicated George Will column, National Review, Politico, Milwaukee Journal Sentinel, Wisconsin Reporter, among other outlets.
The investigation was opened in August 2011 following a complaint by the American Civil Liberties Union and Disability Rights Wisconsin. For the next four years, the U.S. Department of Justice would demand access to students’ private records (which DPI granted), question the state DPI, demand reforms to the program that would significantly hurt school choice, and threaten litigation. And in failing in transparency, the Justice Department refused to speak with reporters about the probe and routinely rejected WILL’s records requests. The DOJ also stonewalled the attempts of U.S. Senator Ron Johnson, chair of the committee on homeland security, for information.
CJ Szafir, Vice President for Policy at WILL noted that “With all the issues affecting our country, it is deeply troubling that the Justice Department spent so much time and resources targeting school choice and private schools in Milwaukee. While it’s to their credit that they knew when to quit, this never should have happened.”