Feds going too far in plan to oversee private voucher schools?

by Allison Hertog

I have dedicated my life to helping disabled students – first as a special education teacher and, for the last many years, as an attorney for parents of disabled children. As strongly as I support the rights of disabled students to be educated on an equal playing field with their typical peers, I do not completely agree with the kind of heavy governmental oversight of private schools that the U.S. Department of Justice mandated last month in its much-publicized letter to the Wisconsin superintendent of public schools.

In that letter, the DOJ finds the State of Wisconsin is obligated to “eliminate discrimination” against students with disabilities in its private school voucher program, regardless of whether the private schools accept federal funds.

Because they take federal funds, states are of course charged with meeting certain federal civil rights mandates in their administration of public schools. I am not an expert in school choice law, or the Americans with Disabilities Act for that matter. But what appears to be new here is that because Wisconsin administers a school choice program, it must “ensure” that participating private schools, regardless of whether they take federal funds, adhere to some of the most important mandates of the ADA.

The private and religious status of the individual voucher schools does not absolve DPI of its obligation to assure that Wisconsin’s school choice programs do not discriminate against persons with disabilities as required under Title II [of the Americans with Disabilities Act.]

The letter was precipitated by a complaint filed in June 2011 by the American Civil Liberties Union and Disability Rights Wisconsin. It alleged the Milwaukee voucher program discriminates against kids with disabilities and segregates them in public schools. It claimed that of the 21,000 students enrolled in private voucher schools, 1.6 percent had plans that specified special needs services, compared to about 20 percent of students in the Milwaukee public school system. Voucher advocates such as Patrick Wolf, who completed a study in 2012, have found less discrepant rates of disability in the Milwaukee program.

An important note: Wisconsin’s voucher programs are not designed specifically to serve children with special needs, such as Florida’s John M. McKay Scholarship for Students with Disabilities. They are designed to serve all students with family incomes up to 300 percent above the poverty level.

Nonetheless, the result of the DOJ letter is the state must seriously ramp up its oversight of the private secular and religious schools participating in its voucher programs, including the Milwaukee Parental Choice Program, the oldest voucher program in the country.

Some oversight is, of course, warranted. In our country, private schools can’t discriminate against students based on their race for instance, regardless of whether the schools take government funds. And private schools which don’t take federal funds shouldn’t discriminate in their admissions and suspensions process against students who can meet the demands of the school if provided with reasonable accommodations and supports.

However, not all private entities in our society have a public purpose. Some private schools choose to forego the benefits of federal monies because they want to provide a certain type of education to a certain type of student population – be it a nunnery or a secular feeder high school to the Ivies. In the later case, even a private school which takes federal funds is totally within the confines of the ADA to discriminate against a child applicant with intellectual disabilities who cannot meet its academic demands. When a private school foregoes government money, it should not be subject to the same government oversight as a school which reaps the benefits of it.

Here’s another thing to consider: Discrimination under the ADA in the school context is not often as cut and dry as it is with other protected classes. In the case of a kid with learning disabilities or ADHD, the government might have to review in great detail the demands and curricula of the private school as well as extensive school records, including psycho-ed evaluations, to determine if the kid could make it in the private school program with or without reasonable accommodations and support. That is not an appropriate level of government oversight for a private school, or even a voucher school; the Supreme Court has ruled under Zelman that parents have the right to apply their state tax dollars to private school tuition. And I fear the additional oversight might scare some states from passing new voucher laws and/or scare private schools from participating in programs which can change the course of children’s lives for the better.

If it complies with the mandates of DOJ letter and does not pursue a legal challenge – at this stage there is no indication of such a challenge but it wouldn’t surprise me – Wisconsin would surely be regulating its voucher schools more heavily than any other state in the U.S. According to the DOJ, Wisconsin not only must monitor various administrative activities of participating private schools, including case-by-case admissions and expulsion decisions of students with disabilities, but also report reams of data to the feds – at least in the short-term. (See all the oversight requirements on pages 3-4 of the DOJ letter here.)

What are the implications for other states which administer school choice programs?

At the very least, all states administering private school choice programs should take a hard look at the proportion of students with disabilities being served in those programs, and carefully review their responsibilities under the ADA. Though some tax credit scholarship programs, such as Florida’s Step Up for Students, are not “voucher” programs and arguably are not “administered” by the state because the public monies never reach state coffers, there is language in the DOJ letter which may give pause to states which legalize tax credit programs. The letter appears to cite case law indicating a state must enforce ADA law “regardless of whether services are delivered directly by a public entity of provided through a third party.”

The DOJ letter may present less urgency for states such as Florida, Ohio, Utah and Georgia, which administer special needs vouchers in addition to other private school choice programs. From a legal perspective, those states’ voucher programs as a whole probably serve a greater proportion of students with disabilities than state programs without a special needs voucher. In addition, those states may receive fewer complaints from parents and disability rights groups that their disabled children are not being equitably served by the school choice programs.

Wisconsin has been trying to pass into law, in the face of enormous opposition from unions and disability rights groups, a special needs voucher program for years.  Ironically, those groups oppose the very remedy which would alleviate the “segregation” of Wisconsin students with disabilities in public schools.