Justice Department Sued Over Records in School Choice Fishing Expedition

(James Wigderson, Watchdog.org) A Milwaukee-based public interest law firm is tired of waiting for the federal government to hand over records regarding a four-year investigation of school choice in Milwaukee.


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The Wisconsin Institute for Law & Liberty is suing the U.S. Department of Justice over its failure to comply with a Freedom of Information Act request made in January 2016 after an investigation into whether the Milwaukee Parental Choice Program violated federal disability law.

“The DOJ claimed that it was looking for evidence that the private schools in the choice program were discriminating against disabled students,” Tom Kamenick, WILL’s deputy counsel, said in an interview with Watchdog Thursday on the Vicky McKenna Show.

“But, of course, it is not really possible for them to discriminate against disabled students like the DOJ claimed because the voucher schools take their students on a lottery basis,” Kamenick said. “If there are more students applying for the voucher school than they have slots available, it’s a completely blind pick.”

The Justice Department launched its investigation in 2011 following a complaint from the American Civil Liberties Union, Disability Rights Wisconsin and two unnamed families.

In April 2013, the Justice Department sent a letter to the Department of Public Instruction demanding the state education agency do more to “enforce the federal statutory and regulatory requirements” under Title II of the Americans with Disabilities Act. Title II does not apply to private schools in a voucher program because they are not public entities. DPI told the Justice Department it had no power to act on the request under Wisconsin’s parental choice law.

The investigation ended quietly in December 2015 with a letter from the Justice Department to DPI saying no further action was necessary.

Kamenick said the FOIA request aimed to find out why it took the Justice Department four years to realize there wasn’t any discrimination by the MPCP.

“So we’ve asked for internal communications and external communications, and any complaints that were filed, and anything else related to this investigation,” Kamenick said. “One of our suspicions is that they never found anything and never had any real complaints. They sat there hoping and eventually had to give up.”

Kamenick said that given the hostility of the Obama administration to voucher programs like the Milwaukee Parental Choice Program, that the investigation may have been a “fishing expedition” to find something to attack school choice in Milwaukee.

“Even if it wasn’t discrimination related,” Kamenick said, “they could use it as part of their political machine in attacking the sort of choice systems that have worked so well in Wisconsin and other states.”

WILL is not the only group that got ignored by the Justice Department. During the investigation, DOJ officials did not respond to requests from school choice advocates, Wisconsin Watchdog and  U.S. Sen. Ron Johnson, a Wisconsin Republican who chairs the Senate Homeland Security and Governmental Affairs Committee, for information about the probe.

“It was a stiff arm, a stonewall,” Johnson told Watchdog.org when asked to describe the DOJ response to his request in 2015.

In 2016, Johnson attempted to insert add a provision to a spending bill that would have prohibited the Justice Department from conducting similar Title II investigations into private schools participating in voucher programs, but was unsuccessful.

The Associated Press reported that the federal government spent $36.2 million defending the Obama administration in its last year on lawsuits challenging FOIA requests. The Justice Department was responsible for $12 million of that.

“We really have no idea about how it’s going to change under the new administration,” Kamenick said. “But what we do know is that the courts are out there to help enforce these laws against recalcitrant government agencies who are just slow-rolling people across the nation.”

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