The US Department of Justice launched an investigation concerning discrimination against students with disabilities by private schools in the Milwaukee Parental Choice Program (MPCP) after the ACLU and Disability Rights Wisconsin (DRW) filed a compliant. After four years, the DOJ closed the investigation without finding any discrimination.
Of importance, however, was that the investigation used a dubious and unprecedented legal theory – apply public school laws to private schools under Title II of Americans with Disabilities Act (ADA) because the private school accepts state dollars.
This legal theory contradicts a Wisconsin Supreme Court Decision, a US Supreme Court Decision, and a federal Department of Education (DOEd) guideline*. All three of these entities concluded that a private school does not become a public entity upon receiving state dollars.
In 2011, Superintendent Evers agreed with that, writing to the US DOJ that “MPCP schools are not subject to the provisions of Title II, section 504, or IDEA.”
However, over the weekend, State Superintendent Tony Evers made statements to the media that contradicted his own memo. Sup. Evers opposes a measure by Senator Ron Johnson that would still allow the US DOJ to investigate violations of the Americans with Disabilities Act at private schools, but only using the framework of laws for private schools, not public entities – in other words, current law.
While it might seem unnecessary limit the US DOJ to the law as written, the agency’s demonstrated proclivity to help itself to power that it does not have has made it necessary. All Johnson’s measure does is confirm that the law is the law and even the Department of Justice must stick to it. It does nothing to change the status quo. The measure perfectly matches the legal view of the DPI, the WI and US Supreme Courts, and the federal DOEd. Yet, Sup. Evers is in opposition.
Utilizing administrative burdens by agencies for political gains that are unattainable through the legislative process is old hat for DPI. At the inception of the MPCP, they argued that private schools had become public ones. The Wisconsin Supreme Court rejected that gambit. Apparently, over the weekend Sup. Evers forgot that.
Simply put, Senator Johnson is in complete agreement with 2011 Sup. Evers. Unfortunately, 2016 Sup. Evers didn’t get his own memo. As the person in charge of applying education law in Wisconsin, Sup. Evers may want to check with his own lawyers before commenting.
* In the 1992 case Davis v. Grover, the Wisconsin Supreme Court noted that “[i]n no case have we held that the mere appropriation of public monies to a private school transforms that school into a public school.” The Wisconsin Supreme Court concurred again with this opinion in Jackson v. Benson. The U.S. Supreme Court has held, numerous times, that private entities can receive public funds but not be turned into public entities.
A 2001 memo from the U.S. Department of Education reflects that agency’s long standing position that “Title II of the ADA does not directly apply [to private schools] as the private schools are not public entities.”