Recently, both a newspaper editorial and a U.S. Department of Justice (DOJ) letter ruling have accused private schools in the Milwaukee voucher program of discriminating against students, particularly students with disabilities, in violation of the law. Before I started graduate school in political science I worked for four years at the Minnesota State Legislature as an advocate for people with communications-related disabilities. Normally such a charge of discrimination would enrage me. The problem is that there is no evidence the charge is true.
Let’s start with the claim from the editorial board of the Dunn County News in Wisconsin that “Private schools have the right – even under vouchers – to not accept a child, for whatever reason.” This charge that voucher-accepting private schools can pick and choose which students they do and do not admit is as ubiquitous as it is consistently false. First, all private schools in the country, whether in voucher programs or not, are prohibited from discriminating in admissions on the basis of race, color, or national origin (42 USC 1981). Second, Wisconsin Statutes §§119.23(2)(a) and (a)1.a have consistently been interpreted to mean that private schools in the voucher program cannot discriminate against a student with a disability in admission to the school. In fact, state law explicitly requires “that the private school determines which pupils to accept on a random basis” (§119.23(3)(a)). A statistical analysis that my research team conducted during our five-year evaluation of the program confirmed that no measure of student disadvantage – not disability status, not test scores, not income, not race – was statistically associated with whether or not an 8th grade voucher student was or was not admitted to a 9th grade voucher-receiving private school. Our evidence is consistent with the expectation that private schools are admitting voucher students at random during that critical transition, as the law requires, and not as the Dunn County editorial board claims.
What of the U.S. Department of Justice (DOJ) order that the Wisconsin State Department of Public Instruction, which oversees the MPCP, take steps to ensure that the private schools in the program are complying with Title II of the Americans with Disabilities Act (ADA)? Private organizations normally are exempt from Title II of ADA but the DOJ argues that the law applies to private schools in the MPCP because the government is contracting with them to provide a public service (the education of K-12 students). This claim flies in the face of the facts and case-law surrounding the program. The voucher program does not involve any contracts, of any kind, between any government organization and the participating private schools. Students need to meet certain eligibility restrictions to participate in the program, as do interested private schools. Once both are deemed eligible by the state, students choose schools and government funds flow to the private schools based on the choices families have made and consistent with the laws governing the program, not based on any “contract”. In fact, the Wisconsin State Statute that governs the MPCP, §119.23, is entirely separate from Wisconsin State Statute §119.235 entitled “Contracts with Private Schools and Agencies”. Nothing could make the point clearer that the MPCP is not a case of government contracting for education services.
In recognition of the reality that the MPCP is not a case of the government contracting, the Wisconsin State Supreme Court ruled twice (Davis v. Grover, 166 Wis.2d 501, 480 N.W.2d 460 (1992); Jackson v. Benson 213 Wis. 2d 1, 570 N.W.2d 407 (1998)) that students who use an MPCP voucher are “parentally placed” and not governmentally placed in their resulting private school. The U.S. Supreme Court permitted both cases to stand as decided. When parents place their children in private schools, as they have for hundreds of years, the courts have determined that such placements, even if supported by a government-issued voucher, neither violate the First Amendment (Zelman v. Simmons-Harris, 536 U.S. 639 (2002)) nor render the private schools subject to federal education disability law (34 CFR § 300.130).
Some of the actions that the DOJ is ordering the Wisconsin DPI to take could be viewed as inconsistent with both state law and the goal of non-discrimination in student admissions. For example, the DOJ has ordered DPI to collect data regarding the “number of students with disabilities enrolled in voucher schools”. The DPI-issued regulations governing the program currently prohibit private schools from requesting disability-related information on the student application form, both because DPI is not authorized by state law to request that information and to mitigate against the possibility that the private schools would use that disability information to discriminate in admissions. Thus, DPI can either violate state law in requiring that private schools collect information that could be used to discriminate against students with disabilities or disobey a federal government order. Tough choice.
The origin of this entire kerfuffle was a DPI press release on March 29, 2011, stating that the private schools in the MPCP “reported about 1.6 percent of choice students have a disability”. When I asked DPI officials how they got that information, since state law does not authorize either the schools of DPI to ask MPCP students if they have a disability, they responded that they calculated the rate based on the percentage of MPCP students who were given accommodations on the state accountability exam. It is well-known that only a minority of all students with disabilities are given testing accommodations, so the 1.6 percent rate is clearly both an invalid and unreliable measure of the true student disability rate in MPCP. As researchers, and not government officials, we were able to collect more reliable information about the rates of student disability in the MPCP and calculate that it is 7.5 to 14.6 percent, with our best estimate being 11.4 percent.
Still, I think the most telling statistic regarding school choice and special education in the MPCP came from State Superintendent Tony Evers when he stated in his “Response to the U.S. DOJ Civil Rights Division Letter of August 17, 2011” that “DPI accepts due process complaints and state complaints related to the equitable services provisions of IDEA…, but has not received any such complaints related to the participation of children with disabilities in the MPCP.” So, after 22 years of operation and with 25,000 student participants, approximately 11 percent of whom have disabilities, the state agency that oversees the Milwaukee Parental Choice Program has received a grand total of 0 complaints regarding the program’s treatment of students with disabilities. Far less than a mountain, there isn’t even a molehill here.