It was a prolonged mystery that struck Wisconsin education reformers as more akin to a Kafka novel than American due process: Who was behind cryptic demand letters sent under the aegis of the Obama Justice Department, intimating without specific evidence that Milwaukee’s school-choice program was illegally discriminating against disabled kids?
Now, after a six-year bureaucratic and legal tangle in which school voucher advocates said they were stonewalled by Washington, the mystery has been solved. And the answer, they say, is alarming: The federal operation was sparked and practically run behind the scenes by liberal opponents of the program.
Documents released in December through litigation by school-choice advocates showed that lawyers with the American Civil Liberties Union and Disability Rights Wisconsin had prodded federal prosecutors to go after the program, which enables low- and moderate-income Milwaukee parents to use taxpayer-funded vouchers to send their children to private schools. Nearly 30,000 students participate in the program.
According to the documents, the liberal groups opposing vouchers coordinated media strategy with the feds and submitted questions that Justice turned around and posed nearly verbatim to Wisconsin education officials. In addition to suggesting that the program was violating the Americans with Disabilities Act by denying access to disabled kids, the groups promised to drum up additional complaints. Their efforts appear to be why Justice kept the inquiry open for four years even though federal and state officials asserted from the start that, even if the unproven charges were true, they were not legally empowered to remedy them in private schools.
The conservative legal scholar Hans von Spakovsky called the disclosures “evidence that the Obama administration engaged in unethical, improper and disturbing conduct … throughout its investigation into the Milwaukee school choice program.”
The Justice Department considered questions submitted by RealClearInvestigations but declined to comment.
Government watchdogs said there is nothing illegal about such an arrangement, noting it often makes sense for government to tap outside expertise on complex issues. But where the influence of corporate lobbyists on legislation has long raised red flags, less attention has been paid to the influence of public interest groups on public policy.
Paul S. Ryan, vice president for policy and litigation at the group Common Cause, said he has informally advised government agencies and even served as co-counsel with them on some campaign-finance cases. “But it is inappropriate for Justice to be led by an outside group,” he said, stressing that he does not know what specifically transpired in Wisconsin.
The earliest documents seen by RealClearInvestigations date from late June and July 2011, when a representative from the nonprofit Disability Rights Wisconsin sent emails to the ACLU and Justice Department in what appears to be an ongoing discussion regarding the Disabilities Act and the voucher program.
The issue became public that August when Justice sent a vague letter to Wisconsin’s Department of Public Instruction Superintendent Tony Evers. It said Justice had received a complaint alleging “that students with disabilities in the Milwaukee school district are denied access to aids, services and benefits associated with participation in the voucher program in violation of Title II’s anti-discrimination mandate.”
The letter included no specific examples. It did include a series of questions that were virtually copied and pasted from a June 29 email sent to federal prosecutors by Jeffrey Spitzer-Resnick, then the managing attorney for the disability group.
This would set a pattern. Another set of questions from the nonprofits were posed by Justice in a February 2012 letter to Milwaukee Public Schools Superintendent Gregory E. Thornton. While Justice hastened to note “MPS is not the subject of our investigation,” the letter nevertheless demanded that the public schools compile all sorts of information and statistics on disabled students’ attendance at various schools.
In May 2012, Spitzer-Resnick informed the “DOJ Team” that his group had drummed up some new potential plaintiffs, according to e-mails. While Spitzer-Resnick acknowledged working closely with the Justice Department, he rejected the idea that he was running the show.
“It is true we worked with the ACLU, finding families with children with disabilities who had been denied admission to choice schools,” he said. “But we constantly and consistently urged Justice to take a more aggressive stance.”
School choice advocates and administrators at private schools found the Justice Department’s stance – especially its broad suggestion of wrongdoing without any specific complaints – frightening and mystifying. Mike Bartels, a top school administrator at Messmer Preparatory Catholic School in Milwaukee, recalls being contacted by Department of Public Instruction officials regarding the issue. He said he was confused because he had never received a complaint.
“And I thought, ‘What’s to report?’” Bartels said, referring to state authorities he’d now have to keep in the loop.
All Bartels and school choice advocates knew for certain was that Justice was mulling action. Given the power federal prosecutors wield and the Obama administration’s close bond with teachers’ unions, which see school choice as an existential threat, voucher supporters were afraid of what was coming next.
“It was very scary – no one wants to see their name next to a ‘vs. the United States of America,’” said C.J. Szafir, the executive vice president and general counsel at the Wisconsin Institute for Law and Liberty, a libertarian outfit active in school choice issues.
Such concerns were heightened in Wisconsin’s contentious political environment. The opaque anti-voucher campaign was unfolding as Gov. Scott Walker’s battle against public sector unions prompted mass protests and an unsuccessful recall election. It was also when partisan state prosecutors were launching “John Doe” investigations of conservatives, including early-morning police raids and gag orders against Walker allies and families affected.
“Our biggest fear wasn’t that they had found a violation, but that they were trying to get the camel’s nose under the tent,” to find some way to undermine the program, said Jim Bender, president of School Choice Wisconsin, a pro-voucher group.
But Bender and his associates were not the only ones with grave concerns. Wisconsin officials had them too. In response to a barrage of questions from federal prosecutors with Justice’s Office of Civil Rights, Janet Jenkins, the chief legal counsel for Wisconsin’s Department of Public Instruction, made two key points to Washington in November 2013.
First, Jenkins wrote, “The DPI is not aware of any discriminatory policy or practice that it employs in respect to its administration of the Choice programs.”
A second point in Jenkins’ letter – which she noted reiterated one she made in a December 2012 letter to the Justice Department – evidently carried the day. She reminded Justice that Title II applied only to government services and programs, including public schools.
“While state law and regulations place various requirements on participating schools, the Wisconsin Supreme Court has consistently held that participating schools remain private, not public schools.” That is, there was no legal basis for the inquiry.
That turned the whole case upside down for the nonprofits and the feds. It meant, as schools superintendent Evers maintained to Spitzer-Resnick’s dismay, there wasn’t much he could do in the private schools even if there were any genuine discrimination. (Spitzer-Resnick told RCI that Evers, who is now one of many Democrats hoping to unseat incumbent Gov. Scott Walker, acted very differently behind the scenes, encouraging the groups to pursue litigation. Evers’ campaign declined to respond to the charge that he took different positions in public and in private.)
Nevertheless, the inquiry remained open for two more years. Throughout the ordeal, no one in Wisconsin ever received a subpoena; prosecutors never took a deposition. Instead, with a new letter as out-of-the-blue as the first, Justice officials informed DPI just before Christmas 2015 that they were closing the matter with no finding of wrongdoing.
The sudden end left voucher supporters initially relieved the cloud had been lifted. Then they became furious when the behind-the-scenes coordination against them was exposed in 1,500 documents pried loose in a lawsuit by the Wisconsin Institute for Law and Liberty.
“It was sort of like, ‘Wait a minute. Years go by and then this?’” Bender said. “They were trying to invert the policy. There had been [federal] policies for decades, and they wanted to reinvent the law for political purposes.”