by Allison Hertog

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. (more…)

This week, the Denver-based Legal Center for People with Disabilities and Older People filed a federal complaint alleging that a Colorado school district's pilot voucher plan discriminates against children with special needs. The voucher program would provide "only limited services (if any) for students with disabilities" and violates not only the Americans with Disabilities Act, but also Section 504 of the Rehabilitation Act protecting civil rights law, reads the complaint to the Justice Department. "Parents of students with disabilities do not have the same choice to participate in this program," the center states.

This, of course, comes just a month after the American Civil Liberties Union filed a similar complaint to the Justice Department alleging that the Milwaukee Parental Choice Program, and two schools in particular, also violate both ADA and Section 504 by discriminating against students with disabilities and further segregating Milwaukee students. "Proposed legislation to substantially expand the voucher program, if implemented, will exacerbate the discrimination against and segregation of students with disabilities by permitting more schools to participate in the program," the ACLU states.

The Milwaukee program did indeed expand to Racine, Wis., just as many private school options passed state legislatures during the past several months. Will we be seeing more complaints like these as one strategy to reverse the momentum?