Separate Is Not Equal

In a letter released this week, the U.S. Department of Justice (DOJ) informed Wisconsin that its publicly-funded private school voucher program must comply with the Americans with Disabilities Act. In its letter, DOJ reminded Wisconsin that the state's "obligation to eliminate discrimination against students with disabilities is not obviated by the fact that the schools participating in the program are private secular and religious schools."

DOJ's letter came in response to a June 2011 complaint from the ACLU, the ACLU of Wisconsin, and Disability Rights Wisconsin, alleging that the state's program was violating the rights of students with disabilities by excluding most of them from the voucher program.

Milwaukee has been operating the country's oldest voucher or "school choice" program, for twenty years, and the program was recently expanded to other Wisconsin cities. Very few students with disabilities in Milwaukee use private school vouchers, either because they perceive that the program is only for non-disabled students or because the schools themselves counsel children with disabilities out of the program. This has had the effect of segregating students with disabilities in the Milwaukee Public Schools, while cannibalizing the district's resources through the diversion of money from the public schools to private institutions. Voucher programs, and to some extent, tax credit laws, which use public dollars for private education are becoming more popular in recent years.

There are now 20 states and the District of Columbia with either a tax credit for parents of students attending private schools, or voucher programs like the one in Wisconsin that give a student a taxpayer-funded voucher worth a certain amount – in this case approximately $6,500 -- to pay private school tuition. These programs are touted as giving poor students, often in so-called "failing districts," the same "choice" that wealthy students have. The problem is that these programs do not give poor students much choice at all.

Publicly-funded voucher programs have the effect of setting up a separate escape hatch for only a few, leaving the majority of the poor students in schools that are even less likely to succeed than they were before the voucher program or tax credit began. Furthermore, the private schools that spring up to educate a child for $6,500 are producing results that are no better than the public school district – in Milwaukee, for example, three years of comparison test scores show they are performing worse than the public system. We also know that the Milwaukee parents who take advantage of these programs tend to have higher education levels and children without disabilities, leaving the public school district with a higher percentage of children with disabilities and parents with less education. There are few checks in place to ensure that all of the schools accepting vouchers are more than glorified day care providing convenient hours for parents.

On top of that, some private schools in states like Georgia and Alabama, where tax credits have recently been put into place, were founded as segregation academies to thwart federal integration efforts. While the program in Milwaukee and its school district serve almost entirely students of color, as "school choice" spreads around the country, the stage is set for these programs to become even more exclusionary and segregated. We know this because Milwaukee's voucher program already excludes students with disabilities and segregates them into the public school district while at the same time stripping the district of much needed funds to educate them. If we permit this to continue, we are condoning separate schools for a number of groups of students, including racial minorities, students with disabilities, religious minorities and LGBT students. What we have known for the fifty years since Brown v. Board of Education is that separate is not equal. School voucher programs and tax credits do not provide a choice for everyone. They create publicly funded separate schools. However, DOJ's investigation and demand to Wisconsin is a step in the direction of ensuring that states are not permitted to create a civil rights vacuum by delegating public education to private schools.

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