The case started in Wisconsin when the American Civil Liberties Union, ACLU of Wisconsin, and Disability Rights Wisconsin complained to the Justice Department that the Milwaukee Parental Choice Program violates the landmark Americans with Disabilities Act.
"The state cannot, by delegating the education function to private voucher schools, place students beyond the reach of the federal laws that require Wisconsin to eliminate disability discrimination in its administration of public programs," DOJ officials wrote in a recent letter to Wisconsin Department of Public Instruction Superintendent Tony Evers.
In the letter, the DOJ firmly established that the Americans with Disabilities Act applies to voucher programs, with potentially far-reaching impact across the country. Currently, 19 states and the District of Columbia offer taxpayer-funded voucher programs or tax credits permitting students to use public funds for private school education.
"The Department of Justice has affirmed that private schools that receive taxpayer dollars do not operate in a civil rights vacuum," said Courtney Bowie, senior staff attorney with the American Civil Liberties Union Racial Justice Program.
"This is important not only for students with disabilities in Wisconsin, but for all students across the country, including those in Michigan, who have been discriminated against because of the effort by some states to privatize public education."
Oakland County recently had a case where a Catholic School student who was visually impaired did not receive large print textbooks as he had requested.
The school district told the boy’s parents it would cost 20 cents a word to enlarge a black-and-white word and 25 cents to enlarge a word with color so the eighth grader could read them on his own.
The incident became front-page news in the Oakland Press.
Oakland County Schools Superintendent Vickie L. Markavitch relented and provided the youth with the textbooks in large print that he needed, freeing up the four hours an evening he spent with his mother when they only had regular-size print.
Markavitch’s action prevented a lawsuit from being filed since large-print textbooks fulfilled the reasonable accommodation required for those with disabilities involved in state programs such as education even if they are not directly operated by the state.
Wisconsin has the oldest voucher program in the country and the Milwaukee program serves approximately 21,000 students. Currently, parents of students with disabilities are not educated about their right to use the vouchers for private schools.
The schools receiving vouchers are not monitored for compliance with the ADA, and students with disabilities are routinely suspended or expelled from the private schools for minor behavioral issues.
Together, as the 2011 complaint from the ACLU and DRW alleges, this has the effect of discrimination, systematically excluding students with disabilities from participating in the voucher program and segregating them in public schools in disproportionate numbers.
"We have said for years that the state of Wisconsin cannot ignore civil rights laws – including the Americans with Disabilities Act – in setting up and running a private school voucher system. We're glad to see that the Department of Justice agrees with us," said Karyn Rotker, senior staff attorney with the ACLU of Wisconsin.
Jerry Wolffe is the Disability Rights Advocate at Large/Writer in Residence at the Macomb-Oakland Regional Center. He can be reached at 586 263 8950.