How the ACLU and Anti-School Choice Advocates Weaponized the Justice Department in Wisconsin

An unfortunate hallmark of our hyper-partisan age is the temptation to use the levers of government as a weapon against ideological foes. When one side loses an election, some conclude the next best thing is to cast a specter of misconduct and illegality over the winners or their allies. But the coup de grace is to enlist the nation’s law enforcement agency, the United States Department of Justice (DOJ), to investigate, subpoena, and prosecute without just cause.

We saw this happen firsthand in Wisconsin when the Obama DOJ investigated the Wisconsin school choice program, the oldest and one of the largest voucher programs in the country, for alleged violations of federal disability law. In 2011, Wisconsin governor Scott Walker signed the largest expansion of school vouchers in the program’s history. For teachers’ unions and major Democratic party supporters, this was an existential theat. The voucher program, which allows low-income children to attend a private school of their choosing, was popular and successful. Results from a study conducted by a nonpartisan research team at the University of Arkansas showed that students in private-choice schools were more likely to graduate from high school than their peers at Milwaukee Public Schools.

Unable to influence policy in the state capital, opponents of school choice turned to their allies in the Obama administration. On June 7, 2011, attorneys at the American Civil Liberties Union (ACLU) and the taxpayer-funded Disability Rights Wisconsin filed a complaint with the DOJ, asking for an investigation into alleged “systemic discrimination” against students with disabilities by the voucher program and two private schools.

The Justice Department complied, launching what would become a four-year, shadowy probe into the Milwaukee school choice program. Led by Tom Perez, the current Chairman of the Democratic National Committee (DNC) and then head of the DOJ’s Civil Rights Division, the probe sought to destroy a program that had long provided a lifeline to poor, mostly minority children.

In April 2013, attorneys at the DOJ sent a letter to the State of Wisconsin explaining how the state’s voucher program was not compliant with federal disability law. But the changes demanded by Perez and the DOJ were as dangerous as they were unprecedented. They wanted private-choice schools to be regulated like public schools for disability law purposes, which meant educating all special needs children but without receiving any of the funding that public schools receive. This contradicted long-held Department of Education policy, as well as DOJ’s own technical compliance manual.

As explained by School Choice Wisconsin President Jim Bender, “there had been [federal] policies for decades, and they wanted to reinvent the law for political purposes.”

DOJ investigators also demanded the state turn over student information at private schools, including information on student disabilities, prompting privacy concerns from school-choice advocates. The DOJ commandeered Wisconsin’s education agency, the Department of Public Instruction (DPI), forcing it to enact a new regulatory scheme for the voucher program.

Wisconsin senator Ron Johnson, chairman of the Homeland Security and Government Affairs Committee, demanded answers from the DOJ. Shortly thereafter, in December 2015, the DOJ closed the investigation of Wisconsin’s voucher program. Despite all of the DOJ’s threats and enormous amount of time, resources, and effort, the federal investigation failed to uncover any discrimination.

The extent of the DOJ’s abuse has only recently come to light. We sued the DOJ to obtain over 1,500 pages of communications pertaining to the investigation. We discovered that DOJ had allowed attorneys at the ACLU and Disability Rights Wisconsin—the same attorneys who filed the complaint—to perform significant portions of the investigation and essentially serve as surrogate, but clandestine, staff. Put another way, ideological opponents of school choice were enlisted as partners and given the full force of the federal government to intimidate and investigate a program they have longed to eliminate.

As first reported by Real Clear Investigations, federal officials and the lawyers who petitioned them regularly discussed legal strategy. For example, at the request of the DOJ, ACLU attorneys drafted questions for the Justice Department to send to witnesses at Milwaukee Public Schools and the state education agency. (The DOJ followed through on sending them.) And when the state education agency pushed back at the investigation, the ACLU blasted them, saying it was “outraged” by the DPI’s position. saying that their assertion was “outrage[eous].” The ACLU would be in charge of looking for new plaintiffs, saying in May 2012 that they had three new cases and would “continue to search for individuals through outreach.”

Even though the high level of coordination produced no evidence of wrongdoing, the fact it even occurred should alarm all Americans. Former Justice Department attorney and current Senior Legal Fellow at the Heritage Foundation, Hans von Spakovsky, blasted the Obama administration for “engag[ing] in unethical, improper and disturbing conduct … throughout its investigation into the Milwaukee school choice program.”

The DOJ’s investigation of the Wisconsin voucher program provides timeless lessons. Politics by prosecution threatens to undermine institutional faith in our government of the people, by the people, and for the people. Americans must watch the watchers. The old adage “the price of liberty is eternal vigilance” is truer today than ever.

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