Federal, state law permit disability discrimination in Wisconsin voucher schools
The state Department of Public Instruction says it has no legal authority to force private taxpayer-funded schools to accommodate students with disabilities.
May 30, 2023
As an advocacy specialist at Disability Rights Wisconsin, Joanne Juhnke regularly finds herself on the phone with parents concerned about their children’s treatment at school.
Most complaints concern public schools, which enroll the majority of students. State funding for special education has shrunk, forcing districts to struggle to provide services, and disparate treatment of students with disabilities at public schools persists. But in public school, families have a state body to appeal to: the Department of Public Instruction.
DPI is far less helpful in disputes with private schools, which under state law can legally discriminate against students who need certain disability accommodations — or even kick them out. This applies even to private schools that receive taxpayer-funded tuition vouchers to educate students.
The calls Juhnke receives from voucher families often contain the same story. A family has enrolled a child with disabilities in a private school. Administrators have begun pressuring the student to leave or have kicked them out, something public schools cannot do. The parents are shocked. They’re sure the schools can’t do that.
Many times, Juhnke has to tell them: Yes, they can.
“You went into this school choice program thinking that you were the one, as the parents, who have the choice,” she said. “Really, on the other end, the school holds more choice cards than you do, and you’re coming out on the wrong side of that.”
Students vulnerable to expulsion, lack of accommodation
Private schools participating in any of the four state voucher programs — the Milwaukee, Racine and Wisconsin Parental Choice Programs and the Special Needs Scholarship Program — may legally expel students with disabilities if staff determines they cannot accommodate their needs with minor adjustments or deem their behavior too disruptive.
And as upsetting as this may feel to parents, Juhnke said it’s even worse for the students themselves.
“It’s very disruptive,” she said, adding that “stability for a student with disabilities is often even more important” than for those without disabilities.
And expelled students’ funding may take time to follow them back to public schools, as voucher payments correspond to pupil counts made early in each semester.
Reviewing public materials for about one-third of the state’s 373 voucher schools, Wisconsin Watch found that about 15% had policies or statements appearing to discriminate against students with disabilities, often citing limited capacity to meet their needs. This figure omits schools that make no mention of disability accommodation.
“We know not all schools in these programs employ such practices, but the fact that the law allows it is unacceptable,” said DPI communications director Abigail Swetz. “We owe it to our learners and their families to make the necessary changes to ensure these schools provide access to all children, regardless of their ability.”
Between 2013 and 2020, DPI received several complaints alleging disability discrimination at voucher schools — but it determined it had jurisdiction to act in just one of them. Wisconsin Watch has learned the agency quietly suspended its complaint process in 2020 when it comes to students with disabilities attending voucher schools.
Nicholas Kelly, the president of the state’s leading education privatization advocacy group School Choice Wisconsin, did not answer specific questions but disagreed that private schools discriminate. He shared a statement that read, in part: “Fundamentally, parental choice and educational freedom provide accountability. If parents or students are not satisfied with the education they receive they can choose another school.”
Juhnke and her organization argue that legal discrimination is a “fundamental issue” of the voucher program: “Discrimination is, on some level, baked into the cake.”
“The requirements on choice schools have been different for students with disabilities from the very inception of the voucher program,” she said. “We have two parallel school systems: one of which is oriented toward serving students with disabilities and the other which never has been.”
Enrolled one minute, expelled the next?
State law does not prohibit discrimination against students with disabilities at voucher schools. Federal law only requires minimal accommodations, far less than what it requires of public schools, and only applies to recipients of federal funds, such as subsidies to run a lunch program.
When a private school exercises its legal right to expel a student with disabilities, Juhnke’s clients have little recourse.
The fact that students with disabilities waive legal protections when taking a voucher is one reason Disability Rights Wisconsin is “deeply concerned” about the state’s voucher programs, even the Special Needs Scholarship Program.
Drafted by the conservative American Legislative Exchange Council, the scholarship program specifically serves students with disabilities.
Wisconsin’s program requires families receive a document detailing the rights their child will lose, Juhnke said “that doesn’t sink in” until it’s too late. And overall, while the program facilitates private schools in serving more students with disabilities, and expands access to schools dedicated to educating them, she said “it also means that more public funding is going to schools that don’t have to follow the same rules.”
As with LGBTQ+ discrimination, state law requires private schools to restrict admissions considerations of voucher students to statutorily described characteristics, such as residence and income. The statewide program always includes a random lottery, and the Milwaukee and Racine programs include that if the number of applicants exceeds the seats available.
Yet in practice, the line appears blurred. Said DPI’s Swetz: “The scenario of a student enrolling as a (voucher) student in a private school one minute and being expelled the next is, in fact, possible.”
‘We will not be moving forward with enrollment’
The handbook for Milwaukee’s St. Joan Antida High School, an all girls school with nearly 99% of students on vouchers, states: “Students may be admitted under the Parental Choice Program, but may not be suitable for enrollment if the school cannot meet the needs of the student with minor adjustment to the curriculum.”
In 2019, a parent complained to DPI of disability discrimination at the school, although it’s unclear from the record if the student was enrolled.
That same year, DPI heard from parents about St. Leonard School in Muskego, which has just under 18% of its students on vouchers. They alleged they were blocked from enrolling their children — it’s unclear whether they were seeking vouchers — solely on the basis of sensory issues.
Following a school tour, they received an email from the principal, which reportedly stated: “After much prayer and consideration, we will not be moving forward with enrollment for your children at this time. This was not an easy decision. We wish you all the best in your search for a better fit.”
The parents claimed the school declined to give an explanation. Neither the school nor the Archdiocese of Milwaukee responded to requests for comment.
Exclusion described as a matter of practicality
Although 17 of the 19 voucher schools with policies discriminating against students with disabilities are Christian, none appeared to root their exclusion in theology. (The two secular schools identified are both Waldorf schools, a nondenominational private school prioritizing arts and nature curricula.) Instead, disability discrimination is often phrased in practical, if regretful, terms.
Fond du Lac Christian School, for example, which has about 63% of its students on vouchers, stated in its 2017-18 handbook that it “desires to serve the needs of students who would be considered at a level of need for which we are equipped to accommodate.” It also stated it “reserves the right to expel any student diagnosed with behavioral disorders … or significant learning disabilities” whom the school cannot “adequately facilitate,” calling it a matter of “recognizing (their) limitations.”
Fond du Lac Christian blocked a reporter from contacting the school via email and hung up on the phone, so Wisconsin Watch has been unable to obtain a current handbook.
Some schools claimed they did not discriminate on the basis of disability, only to detail policies that exclude students on that basis.
Milwaukee’s Tamarack Waldorf School, with 85% of its students on vouchers, considers working to “increase the diversity of our school community and promote equity and inclusion for all community members regardless of… disability status” one of its guiding principles, according to the 2022-23 handbook. But the document also acknowledges the school may expel students whose “special needs are greater than the school’s ability to meet them.”
DPI received two complaints alleging disability-based discrimination at the school in 2018 and 2019.
Tamarack staff did not respond to emails and a phone message. The Association of Waldorf Schools of North America, which accredits the school, declined to comment on specifics but said it is committed to nondiscrimination on the basis of disability: “As an association, we believe that valuing and supporting diversity, equity and inclusion comprise a journey of both moral and educational importance.”
A failed attempt at accountability
DPI says it may intervene only to stop discrimination against voucher students with disabilities in the admissions process, not after enrollment. In 2011, Disability Rights Wisconsin, along with the American Civil Liberties Union and others, filed a complaint with the U.S. Department of Justice seeking to change that.
Calling on the DOJ to investigate Milwaukee’s voucher program, the ACLU alleged that “many families of students with disabilities are unaware of their rights to use vouchers for private schools, the schools receiving vouchers are not monitored for compliance with the ADA, and students with minor disabilities have been routinely suspended and expelled from the private schools,” according to its website.
The result, they claimed, was “systematically excluding students with disabilities from participating in the voucher program and segregating them in public schools in disproportionate numbers.”
But after a couple years, little changed. “My sense is that it didn’t move the needle as much as we would have liked,” said Juhnke, who was not with the organization at the time.
Communications between the DOJ and DPI show that federal attorneys instructed the state agency to take a number of actions to monitor the voucher programs and enforce compliance with the Americans with Disabilities Act.
“Our position,” they wrote, “is that DPI must do more to enforce the federal statutory and regulatory requirements that govern the treatment of students with disabilities who participate in the school choice program,” including private and religious schools.
DPI responded that although it was “fully committed to ensuring” nondiscrimination of students with disabilities, it believed that it lacked authority — under state and federal law, as well as court precedent — to fulfill the federal government’s demands.
“DPI has significant concerns about the DPI’s authority to ensure that Choice schools do not discriminate against students with disabilities,” the agency’s chief legal counsel wrote in a letter.
Years later, Jeffrey Spitzer-Resnick, a civil rights attorney and education advocate who filed the original complaint for Disability Rights Wisconsin, finds the conclusion “highly unfortunate and reprehensible.” He believes the state agency does not need explicit state authority to uphold federal law.
“If the U.S. DOJ says, ‘Hey, your state program violates federal law, but we’re going to look to your DPI to assure us, because you’re the one who runs the program, that it stops violating the law,’ DPI should have done it. But they didn’t,” he said.
But DPI’s Swetz challenged that premise, saying by email: “DOJ has not concluded the private school choice program violates federal law. In many ways, the DPI wishes it would — then perhaps we would have leverage to make changes. That leverage would help kids because the current situation does not.”
One change DPI undertook was to establish a system to collect complaints about alleged disability discrimination in voucher schools. Juhnke referenced it in an interview with Wisconsin Watch.
But unbeknownst to Juhnke and her colleagues at Disability Rights Wisconsin, DPI quietly closed that complaint mechanism in 2020. In a letter sent to the federal DOJ, Assistant State Superintendent Robert Soldner said the agency lacked the statutory authority to act in all but one complaint it had received.
The agency was ending its formal complaint procedure, the letter said, to “avoid giving complainants false hope that DPI has the ability to address their concerns.”
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