U.S. Sen. Johnson amendment would limit ADA enforcement in voucher schools

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Johnson amendment would limit ADA enforcement in voucher schools
http://www.jsonline.com/news/statepolitics/ronjohn01-b99753966z1-385267421.html

U.S. Sen. Ron Johnson has proposed an amendment to an appropriations bill that would limit the Justice Department's ability to enforce some provisions of the Americans with Disabilities Act at private schools that receive taxpayer funding.

The Republican senator from Wisconsin had been a critic of a long-running U.S. Department of Justice investigation into allegations that the state's Milwaukee Parental Choice voucher program discriminated against students with disabilities — a probe that ended late last year with no significant findings of wrongdoing.

Johnson's staff said the amendment is intended to deter the kind of "government overreach" they said characterized the Wisconsin probe and to limit politically motivated attacks on voucher schools.

"It would keep the DOJ from expanding its jurisdiction in ways the law does not permit," said Johnson aide Patrick McIlheran.

But lawyers for Disability Rights Wisconsin and the American Civil Liberties Union, which filed the 2011 civil rights complaint that launched the DOJ probe, said the amendment, if passed, could exacerbate the exclusion of or discrimination against children with disabilities at voucher schools.

"This is an anti-discrimination law that allows children to access the same programs other students have," said Kit Kerschensteiner, managing attorney at Disability Rights Wisconsin. "You can't single out a group covered by an anti-discrimination law and tell others that it's OK to discriminate against them."

The Department of Justice declined to comment.

Johnson, who chairs the Homeland Security & Governmental Affairs Committee, filed the amendment to the Commerce, Justice, Science and Related Agencies Appropriations Act earlier this month. No vote has been taken on the amendment or the bill.

The amendment would bar federal funds made available as a result of the bill from being used to enforce Title II of the Americans with Disabilities Act at private schools that receive government funding.

Title II prohibits state and local governments from discriminating against people with disabilities and to make reasonable accommodations for those disabilities where necessary.

Johnson's staff said the Department of Education and the courts have ruled that voucher schools are not public schools just because they receive government funds, and that the amendment would still allow DOJ to investigate cases in which the state, and not parents, placed students in a school.

Karyn Rotker, a senior staff attorney with the ACLU of Wisconsin, said the onus is on the state to ensure that schools participating in its voucher programs do not discriminate against students with disabilities — and on the DOJ to investigate when complaints arise.

State Superintendent Tony Evers said the amendment "targets a law that requires a school to accommodate students with disabilities with regards to accessing buildings."

"I am not sure how that fits the spirit and values of any system of education," he said.

Jim Bender of School Choice Wisconsin said he supports the amendment.

"It seems odd to me that a law has to be passed to tell the DOJ that they need to apply the law as written," he said.

Michael Tyler, spokesman for Johnson's Democratic rival Russ Feingold called Johnson "completely out-of-touch with Wisconsin parents."

"It's shameful that he's trying to sneak in a measure to allow discrimination against children with disabilities instead of listening to the middle class and working families of Wisconsin who want their kids treated with the respect and dignity they deserve," he said.

The ACLU and Disability Rights Wisconsin filed a complaint with the Justice Department's Office for Civil Rights in June 2011 alleging that the Milwaukee voucher program systematically excluded children with disabilities and segregated them in public schools.

DOJ quietly closed the investigation in December with no findings of significant wrongdoing.

Private schools that participate in the Milwaukee voucher program cannot deny students admission on the basis of a disability.

But because voucher schools are private institutions, they are not legally bound to offer the same range of special education services or physical accommodations that public schools must provide under federal law.

Voucher schools receive no federal funds for special education services, and must obtain those services through the local school district. However, the state created a new special needs voucher program with state dollars as part of the 2015-'17 state budget.

The Milwaukee voucher program allows qualifying children to attend a participating private school with a taxpayer-funded tuition voucher worth between about $7,000 and $8,000 annually. The new special needs voucher program raises the amount for eligible students to about $12,000.

Since the investigation was launched, Gov. Scott Walker signed legislation that extended vouchers to other private schools across the state.

 

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SENATOR SEEKS TO STOP DOJ FROM INVESTIGATING PRIVATE SCHOOLS FOR VIOLATIONS OF AMERICANS WITH DISABILITIES ACT
http://www.headlines-news.com/2016/...violations-of-americans-with-disabilities-act
A Republican senator has inserted language into an appropriations bill that would prohibit the Justice Department from enforcing key provisions of the Americans with Disabilities ActA Republican senator has inserted language into an appropriations bill that would prohibit the Justice Department from enforcing key provisions of the Americans with Disabilities Act at private schools that receive public funds, a measure he said was necessary to protect voucher programs from politically motivated attacks. The bill — the Commerce, Justice, Science and Related Agencies Appropriations Act — has not yet passed. But disability-rights advocates are concerned that the amendment submitted last week by Sen. Ron Johnson (R-Wis.) could make it far more difficult for Justice Department officials to ensure that voucher programs give students with disabilities fair access to private schools. “That would be a serious concern,” said Karyn L. Rotker, a senior staff attorney at the American Civil Liberties

 

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Ron Johnson seeks to block DOJ from enforcing part of disabilities act in voucher schools
http://journaltimes.com/news/state-...cle_b1e70ebc-a39d-58f6-b53a-ed4b7f0e6d6f.html

U.S. Sen. Ron Johnson is seeking to prohibit Department of Justice officials from enforcing parts of the Americans with Disabilities Act at private voucher schools.

The amendment, which Johnson submitted to be included in the Commerce, Justice, Science and Related Agencies Appropriation Act that has yet to pass, prohibits DOJ from enforcing provisions of the ADA that ensure equal access to public education.

Johnson’s amendment says the provisions that protect students with disabilities from discrimination cannot be enforced in private voucher schools because the schools are not public, despite receiving public money in the form of a school voucher.

A spokeswoman for Johnson’s Senate office said the amendment is meant to protect voucher schools from a “hostile” attitude the Obama administration and other Democratic lawmakers have toward voucher programs and comes months after the Obama administration closed a probe into the Milwaukee voucher system after a lawsuit alleging discrimination against students with disabilities.

“The purpose of the amendment is to prohibit the DOJ from exerting jurisdiction over a private school if the school accepts a voucher payment from a parent, be it from one parent or hundreds of parents,” spokeswoman Paige Alwood said.

She said DOJ treats private schools that may only have 10 percent of its student body attending using a voucher as schools that are subject to DOJ jurisdiction under Title II of the ADA, which covers access to government institutions.

“This assertion by the DOJ could be devastating for low-income students and students with disabilities as it serves to discourage schools from participating in voucher programs,” she said.

But state Superintendent Tony Evers said Johnson’s amendment could threaten the protections the ADA provisions provide.

“The role of a school, regardless of its governance model, is to educate all students equally and provide a safe environment to do that. Senator Johnson’s amendment, in its simplest sense, targets a law that requires a school to accommodate students with disabilities with regards to accessing buildings,” said Evers. “I am not sure how that fits the spirit and values of any system of education.”

School Choice Wisconsin president Jim Bender said the amendment will not keep DOJ from overseeing legal violations.

“It won’t,” said Bender. “It simply says that DOJ cannot use a flawed legal argument, unsubstantiated by any other legal body as they did in Milwaukee, to start investigations of possible Title II violations. Simple.”

Long-standing debates

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Johnson’s amendment highlights longstanding and multi-faceted debates among voucher proponents, disability rights advocates and public school advocates over whether private schools that get taxpayer-funded vouchers should be subject to the same rules governing public schools.

“Our position has always been because voucher schools receive public funding that they must comply with Title II of the ADA,” said Disability Rights Wisconsin public policy director Lisa Pugh. “We are obviously in opposition to Sen. Johnson’s amendment.”

Pugh’s group and the ACLU filed a federal civil rights lawsuit in 2011 arguing that voucher schools in Milwaukee were discriminating against students with disabilities by not accepting the students into their schools, based on Pugh’s position that any school that received public money should be subject to the same laws aimed at protecting students with disabilities that govern public schools.

The Obama administration closed the investigation that resulted from the lawsuit in late 2015, finding no wrongdoing.

The state Department of Public Instruction — which oversees the state’s four voucher programs — said Johnson’s amendment would remove federal oversight of the treatment of students who attend private schools participating in the state’s voucher programs, including a new one specifically for students with disabilities.

“(The amendment) would block any oversight from the state or the federal governments of the ADA in private schools (that) are in the (voucher) programs,” said DPI spokesman Tom McCarthy. McCarthy said the agency has not completed a full analysis of the impact.

While McCarthy and Pugh said Johnson’s amendment would remove oversight of ADA requirements in the state’s voucher program for students with disabilities, Bender said because the program uses only state dollars, federal rules don’t apply in most of the program.

“This is why the program has multiple audit requirements and DPI oversight. Plus, schools are required to publicly disclose what services and qualifications they have for teaching special needs students,” said Bender. “It also requires that the (individualized education plan for students with disabilities) be implemented or that an agreement be reached between the parents and school for services surrounding their child. Each child will have a unique agreement. The schools have to do quarterly updates to the parents.”

Katy Schmidt, president of the Wisconsin Association of the Deaf, said the amendment “gravely concerns” her.

“This is the first time that we have learned about this, and it gravely concerns me because there are several deaf and hard-of-hearing children who take advantage of the voucher to attend schools the parent(s) choose, or even deaf parents choosing to send their hearing children to school using vouchers,” said Schmidt. “By taking away ADA provisions that protect communication access, it will be very harmful to our community and potentially could set precedent for other programs. That really concerns us.”

[Editor's note: This story has been updated to reflect a correction. In the original, the last name of Johnson spokeswoman Paige Alwood was incorrect.]

 

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Johnson simply wants DOJ to follow the law
http://www.jsonline.com/news/opinio...-to-follow-the-law-b99756338z1-385614901.html
In a recent column in the Journal Sentinel, Emily Mills argued that Sen. Ron Johnson (R-Wis.) was attempting to pull the wool over the eyes of Wisconsinites with his newly proposed amendment in Congress concerning private schools ("Sen. Ron Johnson's backdoor maneuver for private schools," Crossroads, June 26).

Mills claims that the amendment "would specifically forbid the Department of Justice from enforcing the ADA for those private schools receiving public funding." Mills concludes that this is in attempt to aid private schools in their "quest to be free of pesky public oversight."

Unfortunately, Mills' argument is riddled with misstatements of fact and a failure to understand how school choice and disability law work. Johnson seeks to limit DOJ to applying the law as written, not a new, unsubstantiated interpretation.

The basis for Johnson's amendment was the investigation by the U.S. Department of Justice into the Milwaukee Parental Choice Program (MPCP). The probe accused the Milwaukee choice program of violating Title II of the Americans with Disabilities Act. Mills makes much of this investigation, writing that the ACLU had cited "evidence" that voucher schools "had openly discriminated against students with various disabilities, forcing them into already underfunded and understaffed public schools."

There are two problems. First, there was no discrimination, "open" or otherwise. In December 2015, after four years, the DOJ closed its investigation — with no findings of any wrongdoing by private schools in Milwaukee. Mills doesn't mention this.

Second, the argument that these schools should be regulated just like public schools is wrong on the law and as a matter of policy. Title II only applies to the government. Private schools in the MPCP enroll students whose families use publicly funded vouchers to pay tuition. But just as Wal-Mart does not become a governmental body because some of its customers accept food stamps, these schools do not become public entities because they accept vouchers. In fact, a 2001 memo from the U.S. Department of Education reflects that agency's long standing position that "Title II of the ADA does not directly apply (to private schools) as the private schools are not public entities." Apparently, the Obama DOJ and Emily Mills didn't get that memo.

Nor have they read the law. The U.S. Supreme Court has held on numerous occasions that private entities receiving public funds do not become public bodies. Wisconsin courts have come to the same conclusion.

Of course, private choice schools shouldn't discriminate against children with disabilities. After looking for four years for violations of a law that does not apply, the DOJ investigation apparently found no evidence that they do. But these private schools also shouldn't be subject to Title II. That law does not simply mandate equal treatment; it requires substantial and expensive accommodations for such children. That may be a good thing, but private schools, who receive vouchers that are much less than the amounts spent per pupil in public schools, do not receive the funding necessary to make these accommodations. Under federal law, public school districts are the gatekeepers for that money and they keep the lion's share for themselves.

Nevertheless, working with less, private schools in the MCPC do manage to serve quite a few students with special needs. The School Choice Demonstration Project (a research consortium that is housed in the University of Arkansas' Department of Education Reform) estimates that between 7.5% and 14.6% of Milwaukee choice students have disabilities that likely would qualify them for special education services in MPS. Additionally, the recent creation of the Special Needs Scholarship Program has shown strong demand from parents looking for placement of students with special needs into private schools.

So Mills incorrectly describes the Johnson amendment. It would simply ensure that the Justice Department follows the law and does not seek to investigate alleged "wrongdoing" that, even if it existed, would not be a violation of the law at all. The amendment would not, as Mills falsely claims, exempt private schools from all "pesky public oversight" related to students with disabilities. Secular private schools are subject to Title III of the ADA and all schools who receive federal funds (say for school lunches) must abide by Section 504 of the Rehabilitation Act. All would be subject to Wisconsin law that forbids private schools in the MPCP from discriminating against students with special needs in admissions.

The Obama Justice Department's investigation was never about protecting kids; it was about the federal government attempting to destroy Wisconsin's school choice program by forcing schools to provide services for which they receive no funding. But even using an erroneous legal theory, the DOJ couldn't make its case. Johnson is wise to try to prevent it from happening again.