DOJ Issues Important Pronouncement on Application of the ADA to School Voucher Programs

A few weeks ago (but just publicized last week), the Civil Rights Division of the U.S. Department of Justice sent a letter to Wisconsin's state Superintendent of Public Instruction regarding the Division's ADA investigation of the Milwaukee school voucher program.  The letter contains a number of important pronouncements regarding the responsibilities of states that operate voucher programs to prevent discrimination by the schools -- public and private -- that receive vouchers under those programs.

The first important pronouncement is that, even when parents use vouchers to attend private schools, the state retains an obligation to prevent discrimination against students with disabilities by the schools participating in the voucher program:

DPI's obligation to eliminate discrimination against students with disabilities in its administration of the school choice program is not obviated by the fact that the schools participating in the program are private secular and religious schools.  Indeed, courts recognize that the agency administering a public program has the authority and obligation under Title II to take appropriate steps in its enforcement of program requirements to prohibit discrimination against individuals with disabilities, regardless of whether services are delivered directly by a public entity or provided through a third party.  [Many case cites omitted.]  In short, the State cannot, by delegating the education function to private voucher schools, place MPCP students beyond the reach of the federal laws that require Wisconsin to eliminate disability discrimination in its administration of public programs.

DOJ's letter also goes into some detail regarding the precise obligations of the state regarding students enrolled in the voucher program:

DPI is required under Title II to ensure that its polices, practices and procedures governing the program (1) empower students with disabilities and their parents to make informed decisions during the school selection process; (2) ensure that disability status has no unlawful adverse impact on admissions decisions[;] and (3) ensure that voucher schools do not discriminate against students with disabilities enrolled in the school, either by denying those students opportunities and benefits available to non-disabled students, or by failing to make reasonable modifications to school policies where ADA regulations apply to DPI or participating schools.

The letter goes on to state that "because DPI is charged with operating the school choice program, it is responsible for monitoring and supervising the manner in which participating schools serve students with disabilities."

This is a very big deal.