The DOJ’s Agenda to Shut Down School Choice

Posted on Categories Education & Law, Public

First off, Dean Kearney, thank you for recommending me to be the September Alumni Blogger of the Month.  It’s much appreciated and, I’m sure, will be a rewarding experience.

For everyone else, I’m CJ Szafir, associate counsel and education policy director at the Wisconsin Institute for Law & Liberty (“WILL”) – a nonprofit legal organization that works to advance the public interest in law, individual liberty, constitutional government, and a robust civil society.  We have offices in Milwaukee.  The president and general counsel of WILL is Rick Esenberg, who is also an adjunct professor at Marquette Law.  Prior to WILL, I worked in the state legislature, serving as policy adviser to the Senate Majority Leader.  I graduated from Marquette Law in 2011.

As noted, I work primarily with education reform and, truly, this is about an exciting time as any to be in such a field, as evident by the state recently expanding school choice statewide.  For all the law students reading this, I never anticipated working in education law and policy; it’s a perfect example of how life can lead you to unexpected places.

My optimism and excitement aside, it’s with great trepidation that my first blog post be on a topic that will be unsettling to many – the United States Department of Justice has a political agenda to shut down school choice.  Think this is an overstatement?  Consider the following two major developments from the summer, one of which is in our backyard.

First, a brief, and oversimplified, primer on school choice.  School choice generally refers to the public policy of allowing low-income families to use a state-funded voucher to enroll at a private school of their choosing.  Proponents point out that this allows children to escape failing public schools, while opponents argue that it goes towards defunding public schools, since state aid mostly follows the student.  It has been challenged unsuccessfully in federal and state court numerous times.  See Davis v. Grover, 166 Wis.2d 501 (1992) (The voucher program satisfies the criteria of public money going to private entities and pursuing a public benefit); Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (No U.S. Constitution Establishment Clause violation when the program is neutral to religion); Jackson v. Benson, 218 Wis. 2d 835 (1998) (Milwaukee school choice program does not violate the Wisconsin Establishment Clause because the purpose is non-religious, namely to educate poor children).

Louisiana:  The Louisiana Scholarship voucher program permits low-income students in public schools, graded a C, D, or F, to attend a private school with a state-funded voucher.  The program is popular as demand far exceeds the number of vouchers allowed.  There are 8,000 families that use a voucher, 90% of which are minorities, mostly black.

Two weeks ago, the DOJ sued the state of Louisiana, accusing the school choice program of “imped[ing] the desegregation process” of schools.  According to the petition, a 1975 desegregation order prevents the state from “providing public financial support to private schools in ways that further or support discrimination or segregation.”  See DOJ’s petition.  As a result, their main argument focuses on the decline of students in the public school system due to the voucher program which “revers[es] much of the progress made toward integration.”  The DOJ is asking the judge to block implementation of the program for 2014.

So, from the 30,000 foot view, the Department of Justice appears to be making the argument that by empowering black families to leave failing public schools for better, private schools, the state is engaging in a form of racial segregation.  Surely, the DOJ has strong evidence to support such a bold claim.  Not quite.  As Jason Bedrick at CATO points out, the DOJ cites only two examples – both incredibly weak:

“In Tangipahoa Parish, for instance, Independence Elementary School lost five white students to voucher schools” so the school became more “black.”  As a result, the school’s racial composition shifted from 29.6% white to 28.9% white…..a 0.7% shift.

Cecilia Primary School “lost six black students as a result of the voucher program,” which “reinforc[ed] the school’s racial identity as a white school in a predominately black school district.”  Mr. Bedrick crunches the numbers again and shows that the school’s racial composition shifted from 30.1% black to 29.2% black…..a 0.9% shift.

A school’s racial composition changes ever so slightly and, as a result, it no longer conforms to the Obama Administration’s conception of what a “desegregated” school should look like.  And this justifies a lawsuit that will prevent up to 8,000 students from going to a private school.

I can easily write over 2,000 more words – and may – about the DOJ using civil rights legal tools to deny black, poor families access to schools that more affluent people go to.  Or how it “shocks the conscience” that the DOJ’s lawsuit would send thousands of children back to failing schools and condemn them to a life of poverty.  Instead, I’ll leave it at reiterating the weak, unprecedented connection the DOJ makes between racial desegregation of schools and the Louisiana educational public policy decision of giving families the ability to choose their school.

Wisconsin.  A few months ago, the DOJ’s Civil Rights Division wrote a letter and memo to the Wisconsin Department of Public Instruction (“DPI”) accusing both the school choice program and participating private schools of discriminating against children with special needs.  This, according to the DOJ, is a violation of Title II of the Americans with Disabilities Act (“ADA”) which prohibits public entities from discriminating against people with disabilities.  To remedy this alleged problem, the DOJ is commanding the state of Wisconsin to adopt numerous requirements – bureaucratic speak for regulations – in order for the school choice program to be ADA compliant.  If Wisconsin does not implement the regulations, “the United States reserves its right to purse enforcement through other means.”

There’s a lot to unpack here and WILL has written a legal response to the DOJ.  First, it’s notable that the letter – similar to the Louisiana desegregation lawsuit – included no actual examples of discrimination.  None.  Second, the DOJ relies on the faulty premise that private schools should be treated as public entities because they receive state funded vouchers.  But we know that this is not accurate.  Private entities, such as hospitals and colleges, say Marquette, receive federal and state dollars without being automatically transformed into public entities (see the U.S. Supreme Court in Rendell-Baker v. Kohn).  And, practically-speaking, private schools in the choice program are not “public entities.”  In Wisconsin, the state issues a voucher to the parents who then use it to attend a private school of their choice.  In other words, schools do not receive a voucher but for the decision of the parents.

Additionally, the DOJ is trying to assert Title II, which regulates public entities, on to private schools when Congress has made clear in the ADA that private schools are regulated by Title III.  This is no small mistake – under Title III, religious entities are exempted from the ADA and over 85% of private schools in the Milwaukee choice program are religious.  Much like the DOJ arguing that school choice “impedes the desegregation process,” their argument that private schools should be regulated as public entities is completely unprecedented.  What happens next is anyone’s guess, though the DOJ’s actions in Louisiana tell us that we should expect the worst.

It’s clear that, under the noble guise of upholding desegregation or preventing disability discrimination, the Holder-Obama Justice Department is waging a political attack on the school choice movement.  While I’m probably the least qualified to interpret the motivations behind the Obama Administration, an argument could be made that the public unions – notorious defenders of the education status quo – are losing the school choice battle on every front, the ballot box, state legislature, and public opinion polls.  Perhaps, then, their last resort is having the DOJ work to shut it down.

4 thoughts on “The DOJ’s Agenda to Shut Down School Choice”

  1. Stopping school choice on a nationwide basis is an excellent idea. It is an abomination that I am being taxed so the government can give money to private schools. Any business should survive or fail on its own merits. Government funding of private business is simply a bad idea, bad policy and wrong.

  2. Nick, do you think we should abolish Pell grants? Or make it unlawful for students to use them at private schools? How about banning low income wage earners from using their earned income tax credits and food stamps at private businesses?

  3. You make a good point Tom. In general I oppose giving tax money to any private business. As for Pell grants, maybe they should be eliminated. But the point is there is no free public university system as an alternative. At the grade and high school levels I am already being taxed to support those schools. Let people go to public schools or pay their own way!

  4. Thanks for the comments. Nick, I respectfully disagree. As for the policy of school choice, what you are arguing amounts to an innocent child having to attend the school where he/she is born, no matter what the consequences are. With many MPS schools struggling, all you are doing is sentencing a child to a life of poverty. School choice allows for a child to escape this cycle.

    On a legal perspective, you seem to making an “ends justify the means” argument. You disagree with the policy of school choice – so it’s acceptable for the federal government to file baseless, unprecedented lawsuits and try to stifle state education policy (which, time and time again, has been validated by the people).

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