Other Areas
Index of Cases
A key provision of the Wisconsin voucher statute requires all private and religious schools participating in the Milwaukee voucher program to admit voucher students randomly. Unlike public schools, which must educate all students, private and religious schools generally have admissions requirements, and pick and choose among applicants. The random selection requirement is intended to help prevent them from doing just that -- from skimming off preferred students and leaving the hardest to educate and others behind, and from otherwise discriminating against particular voucher students.
The voucher law requires the Wisconsin Superintendent of Public Instruction to ensure that the voucher schools engage in random selection, and the Department of Public Instruction ("DPI") requires those schools to submit copies of their random selection plans. People For the American Way Foundation reviewed the plans submitted by the private and religious schools participating in the voucher program for the 1998-99 school year, and found that the plans of 35 schools -- more than a third of the 88 voucher schools -- appeared to violate the random selection requirement or raised questions concerning compliance with that mandate. (For example, some plans unlawfully gave preference to students of a particular religious faith or parish, or impermissibly imposed admissions requirements on voucher students.)
On February 2, 1999, along with the NAACP-Milwaukee Branch, PFAWF filed an administrative complaint with DPI, asking DPI to investigate and to withhold voucher payments from all schools found to have violated the random selection requirement. DPI took a number of actions in response to our Complaint, notably adopting a new rule requiring that a private school's random selection plan must be approved by DPI before the school may participate in the voucher program. As a result of this new rule, DPI required some voucher schools to re-write their random selection plans in order to participate in the voucher program during 1999-2000.
The apparent violations of the random selection requirement highlight the false claim of voucher proponents that vouchers provide students with school "choice." In fact, as our Complaint revealed, it is private schools, not students, that do the choosing when it comes to admissions. Ironically, the random selection requirement of the Wisconsin voucher statute was specifically cited by the Wisconsin Supreme Court as a basis for its conclusion that the Milwaukee voucher program is religiously-neutral and, on its face, racially neutral as well. See Jackson v. Benson, 578 N.W.2d 602, 617, 631 (Wis.), cert. denied, 119 S. Ct. 466 (1998). (PFAWF was one of the groups that challenged the constitutionality of the inclusion of religious schools in the voucher program.)
Following our initial review of the random selection plans, we conducted an investigation of the actual admission practices of a number of the voucher schools participating in the voucher program during the 1999-2000 school year. We also investigated whether the schools were unlawfully charging additional fees to voucher students, and whether religious voucher schools were complying with the statutory requirement that they permit parents of voucher students to opt their children out of religious activities. This investigation was conducted by trained civil rights testers from the Metropolitan Milwaukee Fair Housing Council.
The investigation revealed that a number of the schools examined were clearly violating the voucher law by imposing unlawful admissions requirements on voucher students, charging them unlawful fees, or discouraging parents of voucher students from exercising their statutory right to opt their children out of religious activities. In addition, our review of the 1999-2000 random selection plans of a number of voucher schools revealed that the schools' "open enrollment" periods for voucher students were so early in the calendar year and/or so limited in duration that they suggested the schools might not be engaging in random selection but rather were targeting a select group of students (such as parishioners) likely to know about these early or limited enrollment periods.
In August 1999, along with the Milwaukee NAACP, we filed a second Complaint with DPI regarding our investigation and asked DPI to take appropriate action. DPI began its own investigation but put that investigation on hold when it was met by resistance from the voucher schools, who charged in a motion to dismiss our Complaint that DPI lacked jurisdiction to investigate our Complaint and that we did not have standing to bring it. According to the voucher schools, DPI was powerless to do anything about the substantial legal violations that we had uncovered. We opposed this motion, and DPI rejected it. DPI resumed its investigation in December 1999. In April 2000, DPI issued an initial determination finding "probable cause" to believe that certain violations of the voucher law and its implementing regulations may have occurred. DPI is still attempting to mediate a final resolution of our Complaint. To date, it has settled with Marquette University High School, which has agreed to change its application process in order to inform prospective voucher students that they do not have to take the school’s selective entrance exam. DPI has also settled with several other voucher schools that have also agreed to change their practices. Discussions with other schools are on-going.
Back to top
In 1999, the Florida legislature, with the strong urging of Gov. Jeb Bush, enacted the country's first state-wide voucher program. The program allows students at "failing" public schools (determined by a statutory grading process) to receive vouchers to attend private and religious schools (with no requirement placed on the quality of those schools) or higher graded public schools in the same or adjacent districts. During the 1999-2000 school years, the only "failing" public schools were located in Escambia County.
People For the American Way Foundation, along with the Florida Teaching Profession-NEA, the ACLU, the American Jewish Congress, and other organizations filed suit in state court on behalf of parents and other taxpayers challenging the constitutionality of the voucher program on church/state grounds as well as under the Education Clause of the Florida Constitution, which obligates the state to provide for the education of its children through a free and uniform "system of public schools." The court directed the parties to brief only the Education Clause claim, and heard argument on that issue on February 24, 2000. On March 14, 2000, the court ruled in favor of the plaintiffs, holding that the voucher program violated the Education Clause of the Florida Constitution. The state appealed, an action that, under Florida law, automatically stayed the court's ruling. However, the court had already ruled that students currently in the voucher program could finish out that school year in their voucher schools. The court of appeals heard oral argument on August 16, 2000, and reversed the trial court on Oct. 3, 2000. The State Supreme court declined to review the case at that stage, and sent it back to the circuit court for proceedings on the remaining issues, including the church/state issue under the state Constitution.
In the interim, a sharply divided U.S. Supreme Court ruled 5-4 in Zelman v. Simmons-Harris (June 27, 2002) that a voucher program in Cleveland, Ohio did not violate the Establishment Clause of the federal Constitution. This ruling did not affect the plaintiffs' church/state claims in Holmes under the Florida Constitution, and on July 9, 2002, the circuit court heard argument on the plaintiffs' motion for summary judgment based on those claims. On August 5, 2002, the court granted that motion, ruling that the Florida voucher law violated the provision of the state Constitution providing that "No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution." The court described this language as "clear and unambiguous." The court rejected the state's argument that the voucher program does not directly or indirectly aid sectarian schools because the voucher monies are paid to parents, who then make a choice where to send their children. As the court recognized, the voucher law requires that the parents must endorse the voucher checks over to the voucher schools. The court said that to allow this "two-step" payment mechanism to avoid the state Constitution would read the word "indirectly" right out of the pertinent constitutional provision, and would also be "a colossal triumph of form over substance." The court flatly rejected the state's additional argument that the voucher monies are not "in aid" of the religious schools, stating that "[i]t cannot be logically, legally or persuasively argued that the receipt of these funds does not aid or assist the institution in a meaningful way. The entire educational mission of these schools, including the religious education component, is advanced and enhanced by the additional, financial support received through operation of the Opportunity Scholarship Program." (Emphasis added.) The state appealed the ruling, and oral argument on the appeal was held on March 18, 2003.
On August 16, 2004, the Florida Court of Appeal upheld the circuit court’s ruling in a 2-1 decision. As the majority held, the “no aid” provision of the Florida Constitution clearly prohibits the state from using public funds directly or indirectly to aid religious institutions, as happens under the voucher program. In an 8-6 en banc ruling issued on November 12, 2004, the majority of the full Court of Appeals similarly held that the voucher law violates the "no aid" provision on the state Constitution. The court certified the case to the Florida Supreme Court as one involving a question of “great public importance.” The state appealed to the Florida Supreme Court on January 5, 2006. That Court, in a 5-2 ruling, struck down the voucher law on the ground that it violates the Education Clause of the Florida Constitution. The Court stayed the operation of its ruling to allow current voucher students to finish the school year in their private schools.
PFAWF also served as co-counsel for a group of parents and taxpayers in Anderson v. Town of Durham, a lawsuit brought in Maine state court claiming that religious schools must be included in a Maine tuitioning program for high school students. A similar challenge was rejected by the Maine Supreme Court several years ago, and we urged that Maine's decision not to include religious schools in its taxpayer-supported program again be upheld. Summary judgment was granted against religious school voucher advocates in Anderson, and they appealed. On April 26, 2006, the state Supreme Cout rejected this latest challenge to Maine's tuitioning program, again upholding the state's decision not to subsidize religious education with public funds. The U.S. Supreme Court denied certioari on November 27, 2006. In a similar case, Eulitt v. Maine Department of Education, the U.S. Court of Appeals for the 1st Circuit upheld the Maine tuitioning program in a ruling issued on October 22, 2004. PFAWF joined an amicus curiae brief in that case in support of the state of Maine.
PFAWF has also served as co-counsel for a group of Colorado parents, taxpayers, and organizations in Colorado Congress of Parents, Teachers and Students v. Owen, a challenge to the Colorado voucher plan narrowly approved in 2003. The complaint was filed in state district court, and contended that the plan violated several sections of the Colorado state Constitution. In December 2003, the district court struck down the voucher law, holding that it violated the “local control” provision of the state Constitution pursuant to which local school boards must have control over the educational programs that they help fund. The state appealed, and on June 28, 2004, the Colorado Supreme Court upheld the district court’s ruling that the law violates the state Constitution.
Back to top
In 2005, PFAWF filed suit in federal court against the U.S. Department of Education challenging the Department’s unlawful withholding, under FOIA, of records relating to the new, federally funded D.C. voucher program. In May 2004, PFAWF filed a FOIA request with the Department seeking certain records pertaining to the implementation of the D.C. voucher program. Over the course of several months, the Department provided nearly 2,000 pages of such records in response to PFAWF’s FOIA request, and withheld very few. However, following PFAWF’s publication in February 2005 of a report that was critical of the Department’s implementation of the voucher program, the Department stopped communicating with PFAWF regarding a second FOIA request pertaining to the voucher program, ultimately leaving PFAWF with no choice but to file suit in order to obtain records to which it is entitled under FOIA. PFAWF attorneys are co-counsel in the case along with attorneys in the Washington, D.C. office of Jenner & Block. The parties filed cross-motions for summary judgment, which were fully briefed in May 2006.
In September 2007, the district court ruled in favor of PFAWF, rejecting all of the Department's arguements for refusing to disclose the documents of issue, and ordering that they be provided to us. The court also ordered the Department to provide us with a proper index (a Vaughn index) of other withheld documents. The government sought a stay of the disclosure order pending a decision whether to appeal and pending an appeal if one were filed. We did not object to the stay, provided that certain conditions were imposed on the government to prevent further needless delay. The court granted the stay, subject to those conditions, including the requirement that the government seek expedited treatment of any appeal.
The government appealed, and the D.C. Circuit granted expedited consideration of the appeal. The government then agreed to settle the case with PFAWF and dismissed its appeal, but thereafter claimed there had been no settlement. The parties are continuing efforts to resolve the case fully.
Back to top
In October 2003, PFAWF learned from Public Employees for Environmental Responsibility (“PEER”) that the Park Service intended to alter an eight-minute video containing photos and footage of demonstrations and other historic events that have taken place at the Lincoln Memorial in response to pressure from right-wing organizations. These far-right organizations reportedly complained that brief seconds of footage showing gay rights, pro-choice and anti-Vietnam War demonstrations implied that “Lincoln would have supported homosexual and abortion ‘rights’ as well as feminism.” In response, the Park Service reportedly promised to develop a “more balanced” version of the videotape that has been playing at the Lincoln Memorial since 1995.
PEER and PFAWF together requested correspondence and other documents on the subject from the Park Service under a Freedom of Information Act request sent on October 30, 2003. On January 16, 2004, the Park Service released press reports and a copy of the then-current videotape, but denied the remainder of the groups’ request, claiming that even correspondence from outside organizations and members of Congress were internal, pre-decisional records and thus exempt from public records requirements. PFAWF and PEER appealed that denial of documents to the U.S. Department of Interior, of which the Park Service is a component, on January 28, 2004.
After nearly a year, Interior did not respond and the groups filed suit on January 19, 2005 in the U.S. District Court for the District of Columbia. NPS then proceeded with a series of document productions that included many withholdings and redactions. PFAWF challenged these withholdings, the adequacy of the search, and the adequacy of the government’s Vaughn index. On August 27, 2007, the court partially granted PFAWF’s motion for summary judgment and ordered the government to release additional documents and to re-release certain previously disclosed documents without redactions. Specifically the court held that the identities of third party individuals that wrote letters of complaint about the video are not private. The case is still pending. The firm DLA Piper Rudnick, NYC is serving as pro bono co-counsel.
Back to top
Facebook
Change.org
MySpace
Twitter
YouTube
Flickr