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Ron Johnson

U.S. Sen. Ron Johnson, R-Wis., is seeking to limit the federal Department of Justice's ability to review voucher schools for compliance with the Americans with Disabilities Act.

U.S. Sen. Ron Johnson is seeking to prohibit Department of Justice officials from enforcing parts of the Americans with Disabilities Act at private voucher schools.

The amendment, which Johnson submitted to be included in the Commerce, Justice, Science and Related Agencies Appropriation Act that has yet to pass, prohibits DOJ from enforcing provisions of the ADA that ensure equal access to public education.

Johnson’s amendment says the provisions that protect students with disabilities from discrimination cannot be enforced in private voucher schools because the schools are not public, despite receiving public money in the form of a school voucher.

A spokeswoman for Johnson’s Senate office said the amendment is meant to protect voucher schools from a “hostile” attitude the Obama administration and other Democratic lawmakers have toward voucher programs and comes months after the Obama administration closed a probe into the Milwaukee voucher system after a lawsuit alleging discrimination against students with disabilities.

“The purpose of the amendment is to prohibit the DOJ from exerting jurisdiction over a private school if the school accepts a voucher payment from a parent, be it from one parent or hundreds of parents,” spokeswoman Paige Alwood said.

She said DOJ treats private schools that may only have 10 percent of its student body attending using a voucher as schools that are subject to DOJ jurisdiction under Title II of the ADA, which covers access to government institutions.

“This assertion by the DOJ could be devastating for low-income students and students with disabilities as it serves to discourage schools from participating in voucher programs,” she said.

But state Superintendent Tony Evers said Johnson’s amendment could threaten the protections the ADA provisions provide.

“The role of a school, regardless of its governance model, is to educate all students equally and provide a safe environment to do that. Senator Johnson’s amendment, in its simplest sense, targets a law that requires a school to accommodate students with disabilities with regards to accessing buildings,” said Evers. “I am not sure how that fits the spirit and values of any system of education.”

School Choice Wisconsin president Jim Bender said the amendment will not keep DOJ from overseeing legal violations.

“It won’t,” said Bender. “It simply says that DOJ cannot use a flawed legal argument, unsubstantiated by any other legal body as they did in Milwaukee, to start investigations of possible Title II violations. Simple.”

Long-standing debates

Johnson’s amendment highlights longstanding and multi-faceted debates among voucher proponents, disability rights advocates and public school advocates over whether private schools that get taxpayer-funded vouchers should be subject to the same rules governing public schools.

“Our position has always been because voucher schools receive public funding that they must comply with Title II of the ADA,” said Disability Rights Wisconsin public policy director Lisa Pugh. “We are obviously in opposition to Sen. Johnson’s amendment.”

Pugh’s group and the ACLU filed a federal civil rights lawsuit in 2011 arguing that voucher schools in Milwaukee were discriminating against students with disabilities by not accepting the students into their schools, based on Pugh’s position that any school that received public money should be subject to the same laws aimed at protecting students with disabilities that govern public schools.

The Obama administration closed the investigation that resulted from the lawsuit in late 2015, finding no wrongdoing.

The state Department of Public Instruction — which oversees the state’s four voucher programs — said Johnson’s amendment would remove federal oversight of the treatment of students who attend private schools participating in the state’s voucher programs, including a new one specifically for students with disabilities.

“(The amendment) would block any oversight from the state or the federal governments of the ADA in private schools (that) are in the (voucher) programs,” said DPI spokesman Tom McCarthy. McCarthy said the agency has not completed a full analysis of the impact.

While McCarthy and Pugh said Johnson’s amendment would remove oversight of ADA requirements in the state’s voucher program for students with disabilities, Bender said because the program uses only state dollars, federal rules don’t apply in most of the program.

“This is why the program has multiple audit requirements and DPI oversight. Plus, schools are required to publicly disclose what services and qualifications they have for teaching special needs students,” said Bender. “It also requires that the (individualized education plan for students with disabilities) be implemented or that an agreement be reached between the parents and school for services surrounding their child. Each child will have a unique agreement. The schools have to do quarterly updates to the parents.”

Katy Schmidt, president of the Wisconsin Association of the Deaf, said the amendment “gravely concerns” her.

“This is the first time that we have learned about this, and it gravely concerns me because there are several deaf and hard-of-hearing children who take advantage of the voucher to attend schools the parent(s) choose, or even deaf parents choosing to send their hearing children to school using vouchers,” said Schmidt. “By taking away ADA provisions that protect communication access, it will be very harmful to our community and potentially could set precedent for other programs. That really concerns us.”

[Editor's note: This story has been updated to reflect a correction. In the original, the last name of Johnson spokeswoman Paige Alwood was incorrect.]