Under the guise of “equality,” the United States Department of Justice is waging a campaign to slam the schoolhouse doors on thousands of poor children living in states that have decided to give them the same educational options enjoyed by wealthy families. The ongoing investigation into Wisconsin’s school-choice program proves that the Obama Justice Department has no intention of letting up.
Policymakers in states such as Wisconsin and Louisiana have determined that one response to a failing education system is to provide low-income families with the ability to decide where to send their children to school, whether it be traditional public, public charter, or private schools. These programs are immensely popular, and demand often far exceeds the spaces available. This year, over 25,000 children are taking advantage of Wisconsin’s longtime school-choice program to attend a private school of their choosing. The newer Louisiana Scholarship Program is allowing 6,775 low-income students who attend schools graded C, D, or F by the state to attend a private school.
But that idea — a vibrant example of states being “laboratories of democracy” and promoting educational innovation – has come under attack by Eric Holder’s Justice Department in both places.
In April 2013, the Justice Department sent a letter to the state of Wisconsin claiming that its school-choice program discriminates against children with disabilities and, therefore, is violating Title II of the Americans with Disabilities Act (ADA). The school-choice program, it declared, must be reformed, or the federal government “reserves its right to pursue enforcement through other means.”
But, as many have pointed out, the Justice Department’s argument is completely unprecedented and baseless. For starters, Title II of the ADA applies only to public entities and not private schools. Using a voucher to enroll a child at a private school does not turn the school into a public entity, just as using food stamps at a grocery store or welfare benefits at a child-care provider doesn’t make them public entities either. There is longstanding U.S. Supreme Court precedent and past U.S. Department of Education policy to uphold this theory.
In addition, Wisconsin law already prohibits private schools from denying admission to any student on the basis of a disability and requires the state to allocate vouchers to all eligible students, irrespective of a disability. So far, these laws seem to be working. According to the state’s superintendent of public instruction, an adamant opponent of choice, the state has received no complaints of disability discrimination in the choice program.
No matter. The Justice Department refuses to drop its investigation into the program. Recent records obtained by the Wisconsin Institute for Law & Liberty, where the writers of this piece work, show that the Justice Department is still in communication with Wisconsin’s education agency, the Department of Public Instruction. In November 2013, for example, the Justice Department demanded that Wisconsin turn over private-school enrollment data. When the state refused, the Justice Department ominously reminded it that the state was subject to an “ongoing investigation.” Yet, when local media ask about the investigation, the Justice Department will not comment.
Sadly, this war on poor families isn’t limited to Wisconsin. In August 2013, after months of sending threatening letters, the Department of Justice filed a lawsuit against the state of Louisiana. It claimed that the Louisiana Scholarship Program violated a nearly 40-year-old desegregation order that prohibits public funds from going to private schools in ways that promote segregation. The problem was not that school choice was enabling white children to flee public education — over 90 percent of children using a voucher are racial minorities — but that these black and Hispanic families might choose schools that do not fit the government’s preferred color palette.
Despite the public outcry and Governor Bobby Jindal’s best efforts, last month a federal judge held that Louisiana, each year, must give the Justice Department data on voucher applicants and private schools in the program. Presumably, the Justice Department will use this information to determine whether parents have chosen their schools in a way that the federal government agrees with.
However one views permitting poor children to have the same educational choices long exercised by the middle and upper classes, it’s a matter for Wisconsin, Louisiana, and the states to decide. It is certainly not the decision of bureaucrats thousands of miles away operating under dubious legal theories.
Apparently, when the preferences of low-income families run contrary to the vested interests of the education bureaucracy and teachers’ unions, the Obama administration’s much ballyhooed “empathy” turns into outright hostility.
— Rick Esenberg is the president and general counsel of Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. C. J. Szafir is the associate counsel and education-policy director of WILL.