After Two Long Years, DOJ Finds No Discrimination

By MIKE NICHOLS | May 9, 2013

Almost two full years ago, right at the height of a heated legislative debate in Madison over whether to expand school choice, Disability Rights Wisconsin and the ACLU filed a complaint with the U.S. Department of Justice alleging that schools in the Milwaukee Parental Choice Program discriminate against children with disabilities.

They pointed to a misleading statistic indicating that only 1.6 percent of students in the voucher program have formally identified disabilities – a number that represents only a small fraction of the actual percentage.

The complaint against both choice schools and the Wisconsin Department of Public Instruction – actually more a highly publicized narrative about the alleged perils of choice expansion than a legal document – restated all the oft-repeated, hoary stereotypes: choice schools discriminate and promote segregation; students are forced to overcome their disabilities “without any assistance whatsoever” and if they can’t, “they are pushed out and back into MPS;” expanding the program “would exacerbate the discrimination against and segregation of students with disabilities . . .” 

For almost two full years we heard absolutely nothing.

Then, just last week, once again right in the middle of a debate in Madison over whether to expand parental choice programs, the ACLU and Disability Rights Wisconsin announced they had finally obtained a DOJ letter to DPI – which is, of course, every bit as opposed to choice schools as the complainants and at least as aware of how to wage a media offensive at the optimum time.

It wasn’t just the timing alone, though, that convinced anyone paying attention that the whole exercise was a thinly veiled political ploy. It was the comments from politicians and complainants in the media. Both proclaimed unabashedly that the letter confirmed that choice schools have discriminated against students with disabilities.  

Never mind that the DOJ letter confirms absolutely nothing of the sort.

The letter, in fact, completely sidesteps discussion of any allegations that individual students were discriminated against – an implicit admission, I would guess, that there’s no evidence of that. Nor were there any allegations in the DOJ letter of systemic discrimination. None.

All the letter said was that DPI must gather data “that will enable the United States to determine how and to what extent students with disabilities are being served by voucher schools.” It said that the United States will  take appropriate action if information “reveals actual or potential unlawful discrimination.” It said, “DPI must ensure that voucher schools do not discourage a student with a disability from applying for admission, or improperly reject a student with a disability who does apply to a voucher school.”

But nowhere did it say there was any proof any of that has ever happened. 

I’ll leave it to smarter minds to fight over whether DPI has the legal obligation to do what the federal government says it must.  I, for one though, hope they do take a closer look at private schools’ willingness to educate children with disabilities, and not just private schools in the choice program, because the suggestion that private schools are elitist and don’t want to educate kids with obstacles and disabilities is the exact opposite of the truth. The schools’ administrators say both that they educate more children with disabilities than official numbers reflect, and that they would like to teach even more. In fact, many see it as an inherent part of their mission.

There’s good reason to believe them. 

The actual percentage of Milwaukee Parental Choice Program students with disabilities likely falls between 7.5 percent and 14.6 percent, according to an independent study by Patrick J. Wolf, John F. Witte and David Fleming.

The report, “Special Education and the Milwaukee Parental Choice Program” looked specifically at 1,475 students who had switched between choice schools and public schools and compared whether they had been classified as having a disability in either or both. 

In Wisconsin as a whole, meanwhile, over 6 percent of children in private schools have disabilities, according to a recent WPRI survey of 245 private Wisconsin schools. Much of the time, such students aren’t officially categorized as having disabilities because, unlike in the public schools, the designation often does not help them secure money.  

It is true that the percentages in MPS (over 19 percent) and statewide in public schools (14 percent) are higher. But that doesn’t mean private schools discriminate. In fact, most private schools would like to educate more children with disabilities, according to the WPRI survey. The reason they don’t has nothing to do with discrimination, and everything to do with financial limitations and problems with the current system.

As I noted in a recent WPRI white paper,  “How Wisconsin is Failing to Help Students with Disabilities,” current federal law contains provisions designed to assure that such children in private schools — while they do not have the same absolute right to public resources — are assured of “equitable participation” in some federal funding and services. Unfortunately, denials of funding are not uncommon and what  funding does exist is often inadequate.

Opponents of choice schools know all this, just like they know when to file complaints and send out press releases and misrepresent letters from DOJ that – after almost two years of apparent investigation – say amazingly little.

That, actually, says a lot right there.