The Justice Department has taken school-voucher policy to unstable ground. Last month, three agency attorneys sent a letter to Wisconsin officials declaring that the Badger State hasn’t done enough to protect the rights of students with disabilities who participate in voucher programs in Milwaukee and Racine. But the prescription contained within that letter would effectively entangle religious schools in the Americans With Disabilities Act (ADA), from which they have largely been exempted.

The trouble started two years ago, when the American Civil Liberties Union and Disability Rights Wisconsin complained to the Justice Department that private schools in the Milwaukee Parental Choice Program were violating the ADA. They argued that the schools were failing to accommodate disabled students, discouraging some from attending and improperly expelling others. (NB: These groups did not make these claims under the Individuals with Disabilities Education Act (i.e., special education); private schools are clearly exempt from its requirements.)

The Justice Department didn’t determine whether Milwaukee’s private schools had violated the ADA, but its civil-rights attorneys did tell the Wisconsin schools superintendent, Tony Evers, that he “must do more to enforce the federal statutory and regulatory requirements that govern the treatment of students with disabilities who participate in the school choice program.” Evers, according to the letter, must also count all of the disabled students enrolled at voucher schools and determine how many of them end up suspended or expelled. And he must advise these schools about all of their ADA obligations (such as making their facilities wheelchair accessible) while developing a procedure whereby disabled students attending voucher schools can complain of discrimination.

Here’s the rub: While non-sectarian private schools have fallen under the requirements of the ADA since it was enacted in 1990, churches and religiously affiliated schools have been exempt from most of its provisions. That’s important in this case, because about 86 percent of the 123 private schools in the Milwaukee and Racine voucher programs are religious.

When Congress first debated the ADA, the Association of Christian Schools International successfully led the charge to exempt religious groups from provisions that required private entities to remove any barriers that hindered access for the disabled (otherwise known as Title III). The association argued that ADA compliance would be too costly for religious schools, many of which were in older buildings that couldn’t be renovated or retrofitted without great expense. Moreover, its leaders argued, enforcement of the law would improperly entangle government with religion.

The Justice letter, however, effectively nullifies that exemption and concludes that it doesn’t matter whether a school in the Milwaukee or Racine voucher program is religious. Instead, it declares, “The state cannot, by delegating the education function to private voucher schools, place [voucher] students beyond the reach of the federal laws that require Wisconsin to eliminate disability discrimination in its administration of public programs.” Hence, institutions taking part in the state-funded voucher program must comply with Title II of the ADA, which applies to state and local governments.

The problem with this reasoning is that neither the state nor local school districts are contracting with private and sectarian schools to provide a public education. The Wisconsin Supreme Court determined as much in a 1998 decision that upheld the constitutionality of the Milwaukee voucher program. The justices wrote that “the program does not involve the State in any way with the schools’ governance, curriculum, or day-to-day affairs.” Rather, the program “vests power in the hands of parents to choose where to direct the funds allocated for their children’s benefit.”

The same can be said of any direct voucher program. Indeed, the U.S. Supreme Court ruled in 2002 (in the well-known Zelman decision) that a Cleveland voucher program gave parents “genuine choice” in where to attend school—a private decision over which the state had no control.

But if the Justice Department can interpret things differently in Wisconsin, then its conclusions may apply in all of the nine states and the District of Columbia that also fund voucher programs. (Tax-credit-scholarship programs would almost certainly still be safe, as they aren’t funded with public dollars.)

One can surely make the case that schools that take public funds should adhere to certain public regulations. (That’s the case, in our view, when it comes to testing and transparency requirements.) Perhaps private schools, including religious schools, should also be required to be wheelchair accessible and such as a condition of receiving taxpayer dollars. But that’s a decision for Congress to make, not three attorneys from the Justice Department.

Item Type: