Denounces DOJ Investigation of Wisconsin’s Choice Program
July 20, 2015, Milwaukee, WI – For two years, the Wisconsin Institute for Law & Liberty has been tracking – and pushing back against – the U.S. Department of Justice’s unprecedented and baseless investigation into the Milwaukee Parental Choice Program. WILL has provided legal advice to clients and stakeholders in the school choice community and released two comprehensive memos on the subject. Our work on this issue has been cited by columnist George Will, “Justice Department becomes a schoolyard bully in Wisconsin”, and appeared in the National Review, Politico, Milwaukee Journal Sentinel, among other outlets.
For today’s U.S. Senate Committee on Homeland Security & Governmental Affairs hearing on the Milwaukee school choice program at St. Marcus School, we are releasing a review of the DOJ investigation that discusses why the DOJ’s legal arguments are wrong, why the investigation matters to school choice, and how it has impacted the state Department of Public Instruction.
WILL President Rick Esenberg and Education Policy Director CJ Szafir explain that the DOJ is using a legal theory that seeks to transform private schools into public schools for the purpose of applying federal disability law. However, this contradicts the text of the Americans with Disabilities Act (private schools fall under Title III, not Title II), long-held U.S. Department of Education policy, and U.S. Supreme Court precedent. DOJ’s theory defies logic and erodes the distinction between public and private entities.
Rick Esenberg noted, “DOJ’s investigation is unprecedented and is extremely dangerous. If the DOJ were to prevail, it would end the school choice program in Wisconsin. They are trying to make private schools in the choice program provide the same disability services as public schools – without any of the funding that public schools receive.”
Even though DPI concedes that DOJ is using an incorrect application of federal law, they have allowed themselves to be “commandeered” by the U.S. DOJ. CJ Szafir explains, “On at least two occasions, the DOJ has mandated that DPI make changes to the administration of the choice program. The DPI has complied, even though it does not have the statutory authority to do so. There are serious Tenth Amendment issues raised when the U.S. DOJ says “jump” and the DPI asks “how high?””
The DOJ investigation is not about kids. It’s about a policy – school choice – that the adults who benefit from the traditional public educational structure and vehicles for providing services to children with special needs see as eroding their prerogatives and market share. It is an assault on the sovereignty of the state of Wisconsin, and yet another attempt by the Obama Administration to recast federal law into something that Congress has not passed.
The testimony can be found here and is available upon request.