School Choice Wisconsin Action et al. v. Wisconsin Department of Public Instruction

November 30, 2022

Case Name: SCWA et al. v. WI DPI

Type of Case: rulemaking, education reform

Court: Waukesha County Circuit Court

Filed On: November 30, 2022

Current Status: Filed in Waukesha County Circuit Court on November 30, 2022

SCHOOL CHOICE WISCONSIN ACTION & SCHOOLS SUE WISCONSIN DEPARTMENT OF PUBLIC INSTRUCTION OVER UNLAWFUL REGULATIONS

November 30, 2022 | School Choice Wisconsin Action and two schools are suing the Wisconsin Department of Public Instruction (DPI), challenging several of DPI’s rules which were not promulgated in compliance with statutory rulemaking procedures; and, which exceed the DPI’s authority as set forth in state law.

The Lawsuit: The lawsuit challenges DPI’s authority to adopt and enforce an “application perfection” rule without going through proper rulemaking procedures. It further challenges DPI’s promulgation of rules which exceed the authority that the state legislature granted to it. This lawsuit seeks to have DPI’s actions declared unlawful and to bring its administration of the various choice programs back into compliance with state law.

The Clients: SCWA is a membership-based organization of schools who participate in various school choice programs under Wisconsin law. Catholic Memorial High School is a private high school which participates in the Wisconsin Parental Choice Program. Roncalli Catholic Schools is a private school with campuses for kindergarten through high school which participates in the Wisconsin Parental Choice Program.

Background: Wisconsin law provides for three separate school choice programs available to families depending on their location: the Milwaukee Parental Choice Program for those located in the City of Milwaukee, the Racine Parental Choice Program for those located in the Racine Unified School District, and the Wisconsin Parental Choice Program for those located throughout the rest of the state. DPI has created an unlawful perfection rule as part of the application and enrollment process for the various choice programs.

One aspect of the perfection rule is that DPI requires schools to obtain a document from parents that shows their residential address, and DPI itself has specified which residency documents are acceptable and which are not. This allows the government bureaucracy to unlawfully adopt additional rules on an ad hoc basis outside of the rulemaking process.

An additional part of the perfection rule is that DPI demands an absolute perfect match between the address and parental names on the application, as compared to the address and parental names on the residency document. DPI has published a document that specifies which aspects of addresses and names must match “perfectly” and which do not. For example, a student who resides at North Harrison Street in the Village of North Prairie would be allowed to write they live on “N. Harrison St.” but could not write their municipality as “N. Prairie.” Failure to abide by DPI’s arbitrary perfection policy results in the student being ineligible for the choice program unless the application is “corrected” according to DPI’s regulations.

DPI’s unlawful rules impose burdens upon schools, and create confusion for applicants who simply seek to register for school as they would if they were attending a public school. Schools and families participating in the Choice program are required to comply with regulations imposed upon them by informal bulletins or otherwise have applications denied.

CASE DOCUMENTS

Cory Brewer

Cory Brewer

Associate Counsel

cbrewer@will-law.org

Lucas Vebber

Lucas Vebber

Deputy Counsel

lucas@will-law.org

Libby Sobic

Libby Sobic

Director of Education Policy

Libby@will-law.org

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