Wisconsin will tighten regulations on voucher schools after State Superintendent Tony Evers received a letter from the U.S. Department of Justice stating the program “must do more to enforce the federal statutory and regulatory requirements that govern the treatment of students with disabilities.”
The letter responded to a complaint the American Civil Liberties Union (ACLU) filed in June 2011 alleging the Milwaukee Parental Choice Program (MPCP) discriminates against disabled children.
The ACLU claimed Wisconsin has “repeatedly made it easier for non-disabled children to receive vouchers.” Students with disabilities in Milwaukee public schools, they claimed, are deterred from vouchers, denied admission into participating schools, and expelled or “constructively forced to leave” voucher schools.
There is no evidence these charges are true, says Patrick Wolf, a University of Arkansas professor. It is already against federal law for any private school to discriminate against disabled students, and a statistical analysis by Wolf’s team shows no measure of student disadvantage, including disability, had any effect on whether such students were admitted to Wisconsin voucher schools.
“The general problem and disturbing characteristic of the [Justice Department] letter [is] misapplication of the law,” Wolf said. By switching oversight of these schools from parents to DPI, Wisconsin will be “unconstitutionally entangled in the operation of private schools,” he said.
No Parent Complaints
In December 2012, Department of Justice (DOJ) officials met with Wisconsin officials to investigate these claims and discuss voucher schools’ legal obligations.
Wisconsin law requires that “the private school determines which pupils to accept on a random basis” and during the meeting, DPI assured its commitment to “administering the school choice program in accordance with all applicable state and federal requirements,” the DOJ letter says
In a response letter, Evers also noted that in the past 22 years serving over 25,000 students, Wisconsin’s DPI “has not received any such complaints related to the participation of children with disabilities in the MPCP.”
The DOJ letter, dated April 2013, outlined results of the December meeting, concluding, “because the school choice program is a public program funded and administered by the State … the [voucher] program is subject to the requirements of [the Americans with Disabilities Act (ADA)].” It then calls for expanded monitoring and supervision of participating schools.
Such requirements include establishing a formal complaint procedure, additional data collecting and reporting, outreach about the program to students with disabilities, ADA training, and heightened monitoring of voucher schools’ admission practices.
These provisions, the DOJ states, “require DPI to amend the policies and practices that govern its oversight of Wisconsin’s school choice program for the 2012-2014 school year.”
Courts Assign Parental Oversight
The Wisconsin State Supreme Court has twice determined that students who participate in the MPCP program are “parentally placed” instead of “governmentally placed,” effectively affording all oversight and accountability of the school system to parents and students.
The 2002 U.S. Supreme Court ruling Zelman v. Simmons-Harris also concluded such parental placements, regardless of support through government vouchers, do not violate the First Amendment or require such schools to follow the federal education disability laws.
“The biggest legal question may be whether the DOJ letter violates the Supreme Court decision, Zelman,” said disability lawyer Allison Hertog, who sits on the board of Florida’s McKay Scholarship, the nation’s first vouchers for disabled students. These court cases make it clear that a private school using voucher funds is still a private school, and that parents are responsible for monitoring the quality and performance of that private school, she said.
Wisconsin lawmakers have proposed special-needs vouchers for the past few years. Wolf says this is a better solution than complying with the DOJ’s mandates.
“If people are concerned that special needs students are underrepresented in the voucher program,… an obvious remedy would be a voucher specifically for special-needs kids,” he said. This would allow the state to provide more appropriate resources, funding, and unique accommodations.
Wisconsin’s attorney general will likely need to consult with the state DPI, legal experts in school choice law, and the ADA, among others, to determine whether the DOJ demands are in accordance with federal law or the attorney general should challenge the demands in court, Hertog said.
Image by Blood Center of Wisconsin.