Washington harasses school choice

In his latest column, George Will* describes the United States Justice Department's wrong-headed "investigation" of Wisconsin's school choice program for "discriminating" against students with disabilities. As we at the Wisconsin Institute for Law & Liberty have explained at length, the DOJ is proceeding on a contrived and erroneous legal theory that blurs the distinction between public and private. Will writes:

DOJ’s perverse but impeccably progressive theory can be called “osmotic transfer.” It is called this by DOJ’s adversary, the Wisconsin Institute for Law & Liberty (WILL), which is defending Wisconsin children against Washington’s aggression. DOJ’s theory is: Contact between a private institution and government, however indirect or attenuated the contact, can permeate the private institution with public aspects, transferring to it, as if by osmosis, the attributes of a government appendage.

Let me extend Mr. Will's remarks. Choice schools cannot discriminate against children with disabilities. Period. Full stop. Common claims to the contrary; suggestions that these schools "won't take" kids with special needs are just false. State law requires that  choice schools must take all comers. If the number of applicants exceeds the spaces available, students must be selected by lottery (with a small exception for sibling preference).

Now people will argue that private schools do not have certain obligations regarding special needs children that federal law imposes on public schools. In their view, this constitutes discrimination. Disabled students may not get the same services or accommodations in a private school that they will get in a public school. This, in their view, constitutes discrimination.

It's not. Public schools get funding to provide these services that is largely unavailable to choice schools. Just as importantly, federal standards for accommodating students with disabilities do not - and ought not - apply wholesale to private schools. The value of school choice is to encourage a multiplicity of approaches. Not all behavioral disabilities should be medicalized in the way typically encouraged by federal standards. Parents ought to be able to choose between alternative approaches for their children.


* Of course, George Will is on the board of the Lynde & Harry Bradley Foundation which provides funding to the Wisconsin Institute for Law & Liberty. I guess he likes what we do. Conservative board member of conservative foundation likes conservative legal organization. Who would have known?