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June 20, 2019

4/16/2019 7:25:00 AM
DPI sued over alleged school choice discrimination
Case underscores growing divide over choice and charter schools

Richard Moore
Investigative Reporter

A big battle has been brewing over choice and charter schools since the start of Gov. Tony Evers's administration - the governor has proposed capping the number of students in the choice program and capping the number of independent charter schools - and now several groups are alleging discrimination against choice programs by the state Department of Public Instruction.

The conservative Wisconsin Institute for Law & Liberty, acting on behalf of School Choice Wisconsin Action, has sued state superintendent Carolyn Stanford Taylor and the DPI for what they allege to be unfair, illegal treatment of private schools in Wisconsin's choice programs.

According to WILL, DPI is denying private choice schools the opportunity to fully utilize online, virtual learning as part of classroom instruction, even as they allow public schools to do so.

Specifically, the lawsuit alleges, Taylor and the DPI have informed private schools participating in the Wisconsin parental choice programs that they may not count the time involved in teaching and learning through the Internet, or so-called "virtual learning," to satisfy their statutory requirement for "direct pupil instruction," though DPI allows public schools to count that time.

WILL says the conduct is unlawful because DPI is attempting to enforce a rule that has not been properly promulgated under state law, that DPI is incorrectly interpreting the law, and that the conduct violates the right of choice schools to equal protection under the Wisconsin constitution.

"Once again, the state Department of Public Instruction is violating the law to harm private schools in the choice programs," Libby Sobic, the WILL attorney in the case, said. "Public schools all over the state are using online learning to expand student access to curriculum and as a way to avoid cancelling classes due to Wisconsin's winter weather. But DPI will not give students at choice schools those same opportunities. It's unfair, wrong, and illegal."

The details

Under the law, the complaint states, schools in the Wisconsin Parental Choice Program shall provide "at least 1,050 hours of direct pupil instruction in grades 1 to 6 and at least 1,137 hours of direct pupil instruction in grades 7 to 12." The requirement is identical for schools in the Milwaukee Parental Choice Program.

The statutory requirement is also the same for the state's public schools.

The DPI has promulgated an administrative rule allowing public schools to use learning through the Internet, or "virtual learning," to satisfy the hours of "direct pupil instruction" required by state law.

The term "direct pupil instruction" is not defined in state statutes, the lawsuit observes, but DPI's website makes clear that the rule includes the ability of public schools to implement virtual learning to satisfy the hours requirement for "direct pupil instruction."

In January 2019, the complaint continues, various choice schools asked DPI whether they could implement learning through the Internet in the same way as public schools to satisfy the hours of "direct pupil instruction" requirement.

The answer was no.

"In a written communication dated February 5, 2019, DPI responded by telling choice schools that - in contrast to public schools - they may not count instruction provided through the Internet as hours of direct pupil instruction," the lawsuit states.

After WILL challenged that position as unlawful, the DPI doubled down, saying in a Feb. 28 letter that it was not changing its legal position.

As a result of those communications, the lawsuit asserts, DPI could withhold money from the choice schools if they implemented virtual learning and used virtual learning to meet their requirement for hours of "direct pupil instruction."

According to the lawsuit, DPI's interpretation that choice schools can't count virtual learning time as "direct pupil instruction" must be incorrect given DPI's previous interpretation that "for public schools the term direct pupil instruction means exactly the opposite."

More important, the lawsuit continues, the Feb. 5 and Feb. 28 communications from DPI effectively create an administrative rule applicable to choice schools, but DPI failed to follow the rule-making process when promulgating the rule.

"DPI knew that it needed to go through the rule-making process for its interpretation of the term 'direct pupil instruction' as it relates to public schools (and, in fact, went through that process in order to promulgate (a rule)), but ignored the rule-making process for its interpretation of the term as it relates to choice schools," the lawsuit states. "...Therefore, this unlawfully promulgated rule or its threatened application interferes with the legal rights and privileges of choice schools, including members of SCWA, by prohibiting them from using more cost-effective and efficient means of educating through virtual learning - means which are available to public schools in this state."

Finally, WILL asserts, the DPI conduct violates the Wisconsin constitution, which affords Wisconsin citizens substantially the same protections as the equal protection provisions of the Fourteenth Amendment of the U.S. Constitution.

"The guarantees of equal protection provide a right to be free from invidious discrimination in statutory classifications as well as governmental activity," the lawsuit states. "By interpreting the statutory term 'direct pupil instruction' one way for public schools and another way for choice schools, DPI is discriminating against choice schools and depriving choice schools, including members of SCWA, of their right to equal protection under the law as guaranteed by the Wisconsin Constitution."

This is the second time WILL says it has sued superintendent Carolyn Stanford Taylor since her appointment in January.

"Unfortunately, this lawsuit signals that Taylor's DPI will be a lot like Evers's DPI: hostile to school choice," WILL stated in a release.

Looming battles between the branches

The lawsuit underscores what is already shaping up to be a titanic battle between Evers and the Republican-controlled Legislature over school choice.

Indeed, after Evers announced his plan to freeze choice-school enrollment, state Senate majority leader Scott Fitzgerald (R-Juneau) said the proposal was dead on arrival in the Legislature.

"Gov. Evers's plans would do immense harm to the voucher program and create uncertainty for schools, students, and their families," Fitzgerald said. "The program has expanded educational opportunities throughout Wisconsin and helped children escape failing schools."

Fitzgerald said Evers helped to implement the choice program as the head of the Department of Public Instruction.

"He has turned his back on the very families the policies he enacted sought to help," he said. "Why are some of the first targets of his budget minority families, low-income students, and parochial schools from around the state?"

Wisconsinites should have more choices when it comes to the education of their children, not fewer, Fitzgerald said.

"Republicans in the Legislature have spent years helping build the voucher program," he said. "We will not support a budget that includes this proposal."

The governor's plans for choice and charter schools have also drawn vociferous opposition from the Wisconsin Coalition of Virtual School Families, a parent coalition that advocates for public charter schools, which says Evers's budget plan is an all-out assault on parents.

"It is not the job of the governor of Wisconsin to protect the teachers' union and the status quo by denying parents the options to choose the school that fits their child's needs," Ty Babinski, president of the group, said. "This is an extremely disappointing development and we hope the Legislature rejects such callous statism, completely."

This past week, Babinksi said the virtual school parent coalition had been subjected to the same arbitrary enrollment caps. Babinksi called the efforts a heartless attempt by the education bureaucracy to slowly choke away opportunities for children.

"We oppose these latest attempts to squash education reform; they are a step backwards, do not help children, and are a signal that bureaucrats do not trust parents," Babinksi said. "We may not be in the crosshairs yet, but if opponents of parents get momentum, we know we're likely next."

Jim Bender, president of School Choice Wisconsin, said he welcomed the coalition's support.

"Public charter school parents have faced these same misguided political battles over the last 15 years," Bender said. "We welcome their support in our efforts."

Justin Moralez, Wisconsin state director of the American Federation for Children, also said the collaboration was appreciated.

"The governor's proposal to 'freeze' the parental program and limit charter school expansion with arbitrary caps is somewhat duplicitous and malevolent," Moralez said. "The program is already 'capped' every year by the amount of demand. Just because families continue to embrace education options outside of their assigned school does not mean the government should step in and seize control from a parent over what is the best learning environment for their child."

But such groups as Wisconsin Public Education Network, as well as Democratic lawmakers, have hailed the governor's proposals.

State Rep. Sondy Pope (D-Mt. Horeb) has pointed to a Legislative Fiscal Bureau memo stating that Wisconsin public schools would lose $193 million in aid this year because of charter and voucher schools.

Pope is the ranking member of the Committee on Education and a member of the state's Blue Ribbon Commission on School Funding.

"What we are beginning to see more and more clearly is a snowball effect of vouchers negatively impacting Wisconsin's public schools," Pope said. "As the voucher cap continues to increase, we are seeing runaway costs paying for an unnecessary competing school system that has not proven to be any more effective or successful than public schools."

Even more troubling, Pope said, the blue ribbon commission heard in its visits across the state how the choice program negatively affects communities, yet Republicans on the commission completely ignored the testimony.

"This willful ignorance to appease pro-voucher donors, and their recent public rejection of the governor's education budget, clearly says they were never sincere in making funding changes that are needed to give every public school student a better chance to succeed," Pope said.

After serving as state superintendent, Gov. Evers has seen firsthand the negative effects vouchers have on schools all around the state, Pope said.

Meanwhile, a new poll of registered voters commissioned by WILL found low support for Evers's charter and choice school proposals. Just 33 percent of all respondents supported the freeze on vouchers and only 28 percent supported the freeze on charters, WILL reported, while pluralities opposed freezing vouchers (36 percent) and charters (40 percent).

Whats more, 43 percent of Democrats opposed the charter freeze, and 35 percent of Democrats and independents opposed the voucher freeze.

"This poll reveals Wisconsin voters are not lining up to support Gov. Evers's education agenda - in fact, some of the key communities he claims to support want to protect the policies he is attacking, like school choice," WILL's research director, Will Flanders, said. "Just one-third of respondents support a freeze on choice and charter schools, and key elements of the governor's political coalition support school choice."

The poll of 1,400 registered voters in Wisconsin was conducted by Dynata from March 21 to March 28 and has a margin of error of +/-3.

Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at

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