Obama's Justice Department declares war on school choice

charter school

Now that Wisconsin Governor Scott Walker has effectively gelded the Wisconsin teacher’s mafia and limited its ability to extort dues from members that become the mother’s milk of the Democrat machine in Milwaukee, Barack Obama’s Department of Justice has waded into the fray with an attempt to browbeat Wisconsin into killing a vibrant school choice program. Why? Follow the money. If you kill school choice you increase the power of the teacher’s union, something they desperately need.


Reacting to a “complaint” filed by two far left groups, the Justice Department sent a letter to the Wisconsin Department of Public Instruction demanding that it bring charter schools, which are private entities, into compliance with the Americans with Disabilities Act. Via the Wisconsin Institute for Law and Liberty:

Last May, the public learned that the United States Department of Justice (DOJ) had sent a letter to the Wisconsin Department of Public Instruction (DPI) demanding that DPI “must do more” to enforce the Americans with Disabilities Act (ADA) in connection with school choice. It requires that DPI undertake specified activities. Today, the Wisconsin Institute for Law and Liberty released a memo responding to DOJ’s claims.

The memo concludes that the DOJ is wrong. The ADA is inapplicable to the vast majority of private schools participating in the school choice program and DPI lacks the authority to do what DOJ demands. WILL President Rick Esenberg observes that DOJ’s letter is not based on a finding – or even an allegation – of any actual discrimination. “DOJ misunderstands school choice in Wisconsin and ignores state and federal law, decades of court precedent, and even long standing federal policy,” he said. It is, he added, “just another federal power grab.”

DOJ’s argument relies on the faulty premise that private schools in the choice program are public entities – or can be regulated in the same way – because they accept state dollars. But this is inconsistent with controlling precedent and the pertinent statutes. The fact that parents use vouchers at private schools does not turn them into public entities any more than the use of SNAP benefits at a Wal-Mart or TANF benefits to pay a child care provider makes either the store or the daycare public bodies. Nor does it subject them, by a form of “osmotic transfer” to the same legal obligations that do apply to public entities.


George Will observes that the demand is federal overreach on steroids. Not only is it arrogating to itself the right to assume a regulatory function over schools which are clearly not covered by the ADA but it is dragooning state employees to do its bidding:

With sanctimony commensurate with their hypocrisy, school choice opponents borrow language from the era of Brown v. Board of Education to accuse Wisconsin of sanctioning a “dual school system.” The federal government is attempting to order the state to require the choice schools to choose between the impossible and the fatal — between offering services they cannot afford or leaving the voucher program.

Closing the voucher program is the obvious objective of the teachers unions and hence of the Obama administration. Herding children from the choice schools back into government schools would swell the ranks of unionized teachers, whose union dues fund the Democratic Party as it professes devotion to “diversity” and the downtrodden.

The Supreme Court has held that commandeering state officials to enforce federal laws is unconstitutional. This, however, is the least of the Justice Department’s departures from the rule of law.

This decision is important for a couple of reasons.


First and foremost, it represents the kind of abuse that has become the hallmark of the Department of Justice under Barack Obama and Eric Holder. Injustices are manufactured. The innocent punished. Administration cronies are rewarded. Innocent people are killed and jail. The rule of law made mockery. In this case, Wisconsin schools are being targeted because an ally, the teacher’s union there, needs a favor and because Wisconsin Governor Scott Walker is a possible GOP presidential contender in 2016. Harnessing the coercive power of the federal government to the most banal of political impulses is what Obama and Holder are all about.

Second, if the federal government succeeds here they will use this strategy against charter school programs across the country.

In this case, Congress can act. The Senate should refuse to hold hearings on Eric Holder’s replacement until the DOJ withdraws this threat. If that doesn’t work, Congress should act to make it crystal clear that the ADA does not apply to charter schools any more than it does to private or religious schools.


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