Last May, the public learned that the United States Department of Justice (DOJ) had sent a letter to the Wisconsin Department of Public Instruction (DPI) demanding that DPI “must do more” to enforce the Americans with Disabilities Act (ADA) in connection with school choice.  It requires that DPI undertake specified activities.  Today, the Wisconsin Institute for Law and Liberty released a memo responding to DOJ’s claims.

The memo concludes that the DOJ is wrong.  The ADA is inapplicable to the vast majority of private schools participating in the school choice program and DPI lacks the authority to do what DOJ demands.  WILL President Rick Esenberg observes that DOJ’s letter is not based on a finding – or even an allegation – of any actual discrimination.  “DOJ misunderstands school choice in Wisconsin and ignores state and federal law, decades of court precedent, and even long standing federal policy,” he said.  It is, he added, “just another federal power grab.”

DOJ’s argument relies on the faulty premise that private schools in the choice program are public entities – or can be regulated in the same way – because they accept state dollars.  But this is inconsistent with controlling precedent and the pertinent statutes.  The fact that parents use vouchers at private schools does not turn them into public entities any more than the use of SNAP benefits at a Wal-Mart or TANF benefits to pay a child care provider makes either the store or the daycare public bodies.  Nor does it subject them, by a form of “osmotic transfer” to the same legal obligations that do apply to public entities.

DOJ’s effort to enforce ADA against private schools in the choice program is particularly misplaced given that Congress has determined that religious schools – which comprise the overwhelming majority of schools participating in the program – are exempt from Title III of the ADA (which the DOJ mistakenly refers to as Title II).

“U.S. DOJ is attempting to hijack Wisconsin education policy by pushing burdensome regulations on private schools and subjecting them to programming requirements that they, unlike public schools, receive no funding to meet.  This is federal overreach at its worst,” said CJ Szafir, WILL’s Education Policy Director.

So what’s really going on here?  Wisconsin is a leader in giving parents the freedom to choose their child’s school – and the DOJ, like the unions, don’t like it.

The Executive Summary can be found here.

The complete legal memorandum can be found here. 

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