Using a bludgeon in Wisconsin


First Posted: 11/18/2014

MILWAUKEE — It is as remarkable as it is repulsive, the ingenuity with which the Obama administration uses the regulatory state’s intricacies to advance progressivism’s project of breaking nongovernmental institutions to government’s saddle. Eager to sacrifice low-income children to please teachers unions, the Department of Justice wants to destroy Wisconsin’s school choice program. Feigning concern about access for handicapped children, DOJ’s aim is to handicap all disadvantaged children by denying their parents access to school choices of the sort enjoyed by affluent DOJ lawyers.

DOJ’s perverse but impeccably progressive theory can be called “osmotic transfer.” It is called this by DOJ’s adversary, the Wisconsin Institute for Law & Liberty (WILL), which is defending Wisconsin children against Washington’s aggression. DOJ’s theory is: Contact between a private institution and government, however indirect or attenuated the contact, can permeate the private institution with public aspects, transferring to it, as if by osmosis, the attributes of a government appendage.

Wisconsin’s school choice program was pioneered by an American hero, Mississippi-born Annette Polly Williams, who died Nov. 9 at age 77. During her three decades in Wisconsin’s Legislature, she overcame the opposition of fellow Democrats to offering education choices to low-income parents. At the end of her life, however, she saw an African-American attorney general, serving an African-American president, employing tortured legal reasoning in an attempt to bankrupt private schools that enlarge the education options of disadvantaged children.

Children are accepted for the choice schools randomly, and no child accepted by the lottery can be rejected by a school until its capacity is filled. The parents of admitted children are informed by the private schools — about 85 percent of them religious — if the schools cannot afford to offer to those with disabilities as rich a menu of services for the disabled as government schools offer. If the parents consider this unacceptable, they can return to public schools. Tony Evers, Wisconsin’s Department of Public Instruction (DPI) superintendent, fully shares the public education establishment’s hostility to school choice, but he acknowledged in 2011 that the DPI had never received a complaint from parents alleging discrimination against a child with a disability.

Nevertheless, DOJ suggests that the choice schools discriminate because they do not do something they do not have the resources to do. That is, they do not offer the panoply of services that public schools, with ample state and federal funding, offer to children with special needs.

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.” DOJ is attempting to order Wisconsin’s DPI 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 DOJ’s departures from the rule of law.

Religious schools are exempt from certain requirements of the Americans with Disabilities Act. And the ADA section that DOJ is commanding the DPI to enforce against the choice schools applies only to “public entities.” Undaunted by inconvenient law, DOJ argues that because public funds, in the form of tuition vouchers empowering parents to make choices, flow to private schools, the schools become “public entities.”

WILL responds that this is like arguing that when food stamps are used for purchases at Wal-Mart, America’s largest private employer ceases to be private — it becomes an extension of the government. Inconveniently for DOJ, the U.S. Supreme Court has said the fact that a “private entity performs a function which serves the public does not make its acts state action.” The Supreme Court has held that under voucher programs government does not place children in schools; the placements are made by parents empowered by vouchers.

The good news is that Washington is bludgeoning Wisconsin with a legal theory too cynical to succeed. The bad news is that the bigger government becomes, the bolder it becomes in bullying people with legal complexities, confident that its nastiness will rarely be noticed because there is simply too much government to monitor.