1 See Pub. L. No. 108-199, the Consolidated Appropriations Act of 2004. The provision creating the D.C. voucher program was included in this multi-billion-dollar omnibus appropriations measure after a separate bill that would have created a voucher program in D.C. failed to receive Senate approval on its own.
2 In order to be eligible to participate in the voucher program, a student must reside in the District of Columbia and must come from “a household whose income does not exceed 185 percent of the poverty line.” Pub. L. No. 108-199, Div. C, Title III, Sec. 312(3).
3 Pub. L. No. 108-199, Div. C, Title III, Sec. 303.
4Indeed, the Senate rejected an amendment offered by Senator Landrieu that would have prohibited private schools participating in the voucher program from charging tuition to voucher students in excess of the voucher amount.
5 See Letter of William Lockridge to Hon. Ted Stevens, Chair, Senate Committee on Appropriations (July 17, 2003).
6 Letter of William Lockridge to Hon. Ted Stevens, Chair, Senate Committee on Appropriations (July 17, 2003).
7 Letter of Councilmember Carol Schwartz, et al. to Hon. Rodney Frelinghuysen and Hon. Chaka Fattah (July 24, 2003).
8 H.R. 2765, Roll Call Votes 478, 479, 490 and 491.
9 Spencer S. Hsu, “How Vouchers Came to D.C.,” Education Next (Fall 2004), at 47.
11 The Department withheld a number of documents responsive to our request, asserting that they were exempt from production under FOIA for various reasons, including that they were “predecisional.” Our administrative appeal concerning the improper denial of disclosure of those documents is currently pending.
12 Congress declared that the purpose of the voucher law is “to provide low-income parents residing in the District of Columbia, particularly parents of students who attend elementary schools or secondary schools identified for improvement, corrective action, or restructuring under section 1116 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6316), with expanded opportunities for enrolling their children in higher-performing schools in the District of Columbia.” Pub. L. No. 108-199, Div. C, Title III, Sec. 303 (emphasis added).
13 See, e.g., Justin Blum, “D.C. Seeks Higher Profile for Vouchers,” Washington Post (May 9, 2004).
14 E-mail from Babette Gutmann to Sally Sachar (June 9, 2004) and attached spreadsheet of applicant data.
15 Sewell Chan, “Many D.C. School Vouchers Go Unused,” Washington Post (Sept. 1, 2004). According to this article, 1,359 students were notified in June 2004 that they had been awarded vouchers. Since that time, “the families of 290 had dropped out or not responded to efforts by program administrators to reach them.” Id. As of the date of the article, 1,013 of the remaining students had been placed in voucher schools, with 56 still unmatched to a school.
16 The rest of this e-mail indicates that the program evaluators, whose goal Sachar described as being “a randomized study in every way possible,” may have been arguing to place the applicants from the “needs improvement” schools into a blind lottery with other applicants, which would not have given the students from the “needs improvement” schools the statutory priority that Congress required. Indeed, Sachar wrote, “I really think the congressional intent of giving clear priority to this group, makes it difficult to justify purposefully NOT giving a scholarship to as many children in this category as slots allow . . . .” Id. (emphasis in original).
17 Justin Blum, “D.C. Vouchers Outnumber Applicants,” Washington Post (June 11, 2004).
18 See E-mail from Babette Gutmann to Sally Sachar (June 9, 2004) and attached spreadsheet of applicant data.
19 In a May 10, 2004 e-mail, Sachar wrote that they were extending the application deadline “to Friday” (May 14) and that “Nina [Rees] supports the extension, in particular, because she wants to be sure we have done everything we can to reach out to the 15 needs improvement schools.” E-mail from Sachar to Marsha Silverberg (May 10, 2004) (emphasis added). Rees did apparently reject one suggestion that Sachar had made “about other ways of reaching parents in the NCLB schools.” Sachar asked whether anyone had “talked to Mayor Williams and/or Kevin Chavous about sending a letter home (from one of them) with every child in the 15 schools -- telling the parents about the program . . . . ?” E-mail from Sachar to Rees (May 10, 2004). Rees replied, “This is not a great idea. It accentuates the Mayor’s problems with DCPS. . . .” E-mail from Rees to Sachar (May 10, 2004).
20 Sewell Chan, “Many D.C. School Vouchers Go Unused,” Washington Post (Sept. 1, 2004).
21 U.S. Department of Education, D.C. Choice Incentive Program, Frequently Asked Questions, No. 7 (emphasis added), http://www.ed.gov/programs/dcchoice/faq.html  (visited Dec. 28, 2004). There may have been some dissension within DOE on this point. In an e-mail sent to DOE on Feb. 28, 2004, WSF said that it had been interpreting the statute to require priority for public school attendees “and only if there is room would students attending private schools be offered slots through the lottery. Please advise.” E-mail from Sally Sachar to Iris Lane (Feb. 28, 2004). In a reply from Thomas Corwin at DOE, Corwin stated that he read the statute as giving priority to the students attending the “needs improvement” schools and that “[a]ll other children –- public, private, home-schooled, rising kindergartners –- would be treated equally. One might surmise that 306(2), which gives priority to students and families that lack the resources to take advantage of educational options, would make it difficult for most private school students to qualify. But I don’t think you could structure the lottery explicitly to give lower priority to private school students.” E-mail from Thomas Corwin to Sally Sachar (Mar. 1, 2004) (emphasis added).
22 And in terms of whether the voucher program provides genuine “choice” for students, it should be noted that Sidwell Friends allocated only one slot for a voucher student. See, e.g., e-mail from Sally Sachar to Nina Rees (May 10, 2004) (“Sidwell is in by the way. . . They will take ONE slot but it is hugely symbolic”); e-mail from Sally Sachar to DJ Nordquist, et al. (June 10, 2004) (Sidwell is “only taking one slot.”).
23 DOE’s Institute of Education Sciences is overseeing technical support for the voucher program as well as the congressionally required evaluations. See “Department Awards Contract for First Phase of Evaluation of D.C. Choice Program,” U.S. Department of Education Press Release (Mar. 29, 2004), available at http://www.ed.gov/print/news/ pressreleases/2004/03/03292004a.html  (visited Nov. 8, 2004).
24 See, e.g., E-mail from Sally Sachar to Nina Rees et al. (May 16, 2004) (“Is there any way we can increase the number of slots for private school students to closer to 275 or 300 . . . I do think if we do not make a dent in the appropriation there will be concerns . . . lack of the big ‘mo’ if you will.”) (second ellipsis in original).
25 Sachar had expressed similar thoughts in a May 16, 2004 e-mail: “Is there any way we can increase the number of slots for private school students to closer to 275 or 300 -- still a relatively low percentage? . . . While I TOTALLY TOTALLY agree with the notion of not having a disproportionate number of scholarships for private schools, I think it is important that we give out a hefty amount of scholarships this year.” According to Sachar, the eligible students in the private schools “are just as financially needy as the others.”
26 WSF’s June 10, 2004 press release stated that of the 50 private schools participating in the voucher program as of that date, “44% are Archdiocese schools, 30% are non-sectarian private schools, and the remaining 26% are other sectarian schools.” According to a WSF press release issued on Sept. 1, 2004, three more private schools had decided to participate in the voucher program. See http://www.washingtonscholarshipfund.org/090104.asp  (visited Dec. 27, 2004).
27 U.S. Department of Education, D.C. Choice Incentive Program, Frequently Asked Questions, No. 14 (emphasis added), http://www.ed.gov/programs/dcchoice/faq.html  (visited Dec. 28, 2004). The same answer was given to voucher schools by WSF in a set of Frequently Asked Questions, at 5 (Apr. 28, 2004), and posted on its web site, http://www.dcscholarship.org/schoolqa.php  (FAQs as of May 13, 2004)(visited May 27, 2004). In each case, the answer went on to state that the Americans with Disabilities Act prohibits non-religious private schools from discriminating against students with disabilities. In a set of FAQs issued by WSF for the benefit of families interested in the voucher program, WSF stated, “Participating schools must follow federal laws that protect students with disabilities, but those laws differ depending upon whether a private school is religious or if it receives other financial aid from the federal government. If your child has a disability, please contact WSF for more information.” See “Frequently Asked Questions About the Opportunity Scholarship Program,” http://www.dcscholarship.org/familyfaq.php  (as of Aug. 27, 2004) (visited Dec. 30, 2004).
28 See U.S. Department of Education, D.C. Choice Incentive Program, Frequently Asked Questions, No. 13 http://www.ed.gov/programs/dcchoice/faq.html  (visited Dec. 28, 2004); and WSF Statement of Frequently Asked Questions, at 6 (Apr. 28, 2004).
29 The D.C. Human Rights Act, for example, prohibits private schools in D.C. from discriminating against students and employees on the basis of sexual orientation.
30 For example, according to Holy Redeemer Catholic School, a pre-K to 8th grade school that is participating in the voucher program, “Religion plays an integral part in everything we do. In addition to the daily Religion class, students participate in School Mass, Prayer Services and other Church liturgies.” http://holyredeemer.homestead.com/files/Curriculum.htm  (visited Jan. 27, 2005).
31 Archdiocese of Washington, Application for Employment in an Archdiocesan Catholic School, available at: http://www.adw.org/education/teach_app.pdf  (visited Dec. 29, 2004).
32 Catholic Schools of the Archdiocese of Washington, Procedures for Application for School Employment, available at http://www.adw.org/education/teach_procedures.pdf  (visited Dec. 29, 2004).
33 Letter from Brian W. Jones, DOE Office of the General Counsel, to Dr. Patricia A. Weitzel-O’Neill (Mar. 9, 2004). A FOIA request that we submitted to DOE in November 2004 for a copy of Weitzel-O’Neill’s Feb. 27, 2004 memorandum is still outstanding.
34 It appears that having the Archdiocese schools participate in the voucher program was extremely important to those running the program. According to one WSF e-mail, the Archdiocese was “begged to add slots.” E-mail from Sally Sachar to Clint Bolick (May 28, 2004).
35 The tuition rates for 2004-05 that are published on the Archdiocese web site, www.adw.org (visited Dec. 28, 2004), do not distinguish between “new” students and those previously enrolled (although some of the schools charge higher tuition for non-Catholics and/or non-parishioners).
36 The Archdiocese of Washington schools may not have been the only schools to contemplate increasing tuition in light of the voucher program. Documents provided to us indicate, for example, that the Academy For Ideal Education apparently considered raising its Lower School tuition from $5,170 to $7,500 (a 45% increase), and the Anacostia Bible Church Christian School apparently considered raising its tuition for first graders from $4,610 to $6,610 (a 43% increase). See e-mail from Ethel Morgan of WSF to Sally Sachar (May 24, 2004). The documents do not reveal whether these increases were put in place.
37 It appears from the documents provided to us that WSF reviewed certain private schools that planned to raise tuition by a specific triggering percent in order to see if the increases were justified, but the documents do not detail how WSF evaluated any such increase. The documents do indicate that WSF was reluctant to set the trigger at an amount that would include the Archdiocese schools. See, e.g., e-mail from Sally Sachar to Nina Rees, et al. (May 24, 2004) (“This is the situation for the 3 schools getting reviewed. . . I plan to increase the school enrollment trigger to 30% and the tuition increase to 25% (don’t want to inadvertently capture an archdiocese school and these schools are SO beyond those numbers.)”).
38 The next day, the Washington Post reported that “[f]ederal officials had planned to assess the program’s effectiveness by comparing the performance of voucher recipients to that of students who wanted grants but were forced to remain in public schools. Because of the low number of applicants, such a study will not be possible in the first year, federal officials said.” Justin Blum, “D.C. School Vouchers Outnumber Applicants,” Washington Post (June 11, 2004).
39 WSF’s application, dated March 5, 2004, stated that it was submitting its proposal “in partnership with Capital Partners for Education, DC Parents for School Choice, the Greater Washington Urban League, and the Parent Group.” Letter from Sally J. Sachar, WSF, to Iris Lane, Department of Education (Mar. 5, 2004).
40 A DOE e-mail dated Friday, March 5, 2004, said that “[a]s of 4:30 p.m. today, the closing time and date for our competition, we have 1 application only –- from the Washington Scholarship Fund. That’s it.” E-mail from Margo Anderson to Nina Rees, et al. (Mar. 5, 2004). However, a DOE e-mail sent on Monday morning, March 8, 2004, said that the closing date for applications had been extended to the close of business that day “because of system problems that the Department was experiencing around the closing time. Evidently, there is a second applicant (from Chicago) in the process of finalizing an application. We should have that application electronically by sometime this afternoon. We’ll have to determine if it’s eligible first and if it is, we’ll have the panel review that application along with the one from the Washington Scholarship Fund.” E-mail from Margo Anderson to Nina Rees, et al. (Mar. 8, 2004). That application was submitted by the “Center for Educational Partnerships,” with an address in Chicago, and identified only one staff member, Maria Webb, “the CEO.” It is unclear from the application whether CEP employed other staff, as the application declined to identify other personnel who would be involved in administering the voucher program were CEP to be selected, stating “specific staff has deliberately not been selected.” CEP application, at 22.
41 “Administrator for DC School Choice Incentive Program Selected,” Department of Education Press Release (Mar. 24, 2004), available at: http://www.ed.gov/print/news/pressreleases/2004/03/03242004.html  (visited Nov. 5, 2004).
42 WSF appears to have known at least by March 22 that it had been “chosen” to administer the voucher program. On that date, for example, Jack Klenk of DOE sent an e-mail to Sally Sachar, the President of WSF, stating, “I am delighted that WSF will administer the program.” On the same date, Sachar sent an e-mail to DOE and the Mayor’s office entitled “Thank You So Much,” stating, “I wanted to drop you a quick note of thanks and to say how excited I am to be working with both of you and your institutions. . . I am developing our own press release for release on Wednesday afternoon [March 24]. Is it possible for me to get a quote from the Mayor and the Secretary?” E-mail from Sally Sachar to Michelle Walker and Nina Rees (Mar. 22, 2004). Nevertheless, the very next day, Sachar told a reporter “in no uncertain terms that we do not know if we have been selected as the grantee . . .” E-mail from Sally Sachar to Michelle Walker and Nina Rees (Mar. 23, 2004) (emphasis in original).
43 We have filed an administrative appeal with DOE challenging the Department’s improper refusal to disclose the names of certain persons with whom DOE and WSF have corresponded in implementing the voucher program. That appeal is pending.
44 In sharp contrast, the Wisconsin statute governing the Milwaukee voucher program requires participating private schools to admit voucher students based on random selection. See Wis. Stat. §119.23(3)(a). Similarly, the Florida voucher statute requires participating private schools to select students “on an entirely random and religious-neutral basis without regard to the student’s past academic history.” Fla. Stat. 1002.38(4)(e). A requirement of random selection helps prevent private schools from skimming off preferred voucher students and leaving the hardest to educate behind.
45 Given the statute, the “answer” could not be totally “fixed,” though as ultimately issued to private schools it was watered down: “Yes. We expect there to be a limited number of schools participating in the scholarship program that will apply admissions standards, in addition to placement criteria . . .” WSF’s Frequently Asked Questions About Private School Participation (April 28, 2004). This information was also contained in the FAQs About Private School Participation posted in May 2004 on WSF’s web site, http://www.dcscholarship.org/schoolqa.php  (FAQs as of May 13, 2004)(visited May 27, 2004). In a set of FAQs issued for the benefit of families interested in the voucher program, WSF stated that “Some of the participating schools will have admissions criteria and each school may have a different process. Those schools will be able to sue these criteria to determine whether a student can be placed in their school.” See “Frequently Asked Questions About the Opportunity Scholarship Program,” http://www.dcscholarship.org/familyfaq.php  (as of Aug. 27, 2004) (visited Dec. 30, 2004).
46 By contrast, the Florida voucher statute requires participating private schools to “[a]ccept as full tuition and fees the amount provided by the state for each student.” Fla. Stat. 1002.38(4)(i). (That amount is the lesser of the school’s actual tuition and fees or a “calculated” voucher amount specified in the law. Fla. Stat. 1002.38(6)(b).)
47 http://www.dcscholarship.org/schoolinfo.php  (visted May 27, 2004).
48 http://www.dcscholarship.org/schoolqa.php  (FAQs as of May 13, 2004) (visited May 27, 2004).
49 An undated set of FAQs posted on DOE’s own web site is less obtuse. These FAQs pose the question “Will any students who receive scholarships have to meet costs that are not covered by the scholarship (i.e., will a scholarship always cover the full cost of attending a private school)?” The stated answer: “The great majority of private school slots available for participating students will be in schools that charge less than $7,500. However, students electing to use their scholarships to attend those schools that charge more than the $7,500 maximum scholarship would have to make up the difference from other sources (which could include private scholarship funds available to those schools or from other sources).” U.S. Department of Education, D.C. Choice Incentive Program, Frequently Asked Questions, No. 25, http://www.ed.gov/programs/dcchoice/faq.html  (visited Dec. 28, 2004). A set of FAQs issued by WSF for the benefit of families interested in the voucher program stated that in the case of tuition and fees in excess of $7,500, “[w]e are only permitted to apply $7,500 to each scholarship recipient.” See “Frequently Asked Questions About the Opportunity Scholarship Program,” http://www.dcscholarship.org/familyfaq.php  (as of Aug. 27, 2004) (visited Dec. 30, 2004).