WILL, SCW Threaten Wisconsin DPI with Legal Action Due to Bureaucratic Overreach in School Choice Program

The News: Today, the Wisconsin Institute for Law & Liberty (WILL) submitted a letter jointly with School Choice Wisconsin (SCW) to the Wisconsin Department of Public Instruction (DPI), threatening legal action based upon a pattern of DPI denying new schools’ participation in the school choice program. WILL believes that DPI is exceeding its legal authority by requiring new schools to complete a near impossible application process.

The Quotes: WILL Associate Counsel, Cory Brewer, stated, “Competition in education offers more opportunities for families—to find a quality school that meets their needs and values for their children. It’s clear that DPI is exceeding their authority in denying applications from potential choice schools, and it begs the question if politics is playing a role. WILL is not only seeking more information via an open records request, but is threatening legal action; and will do whatever it can to support parents and students across Wisconsin.”

School Choice Wisconsin President, Nicholas Kelly, stated, “Schools apply to enter the choice program because they want to serve families and children by providing a high-quality education. New schools expend time and resources attempting to comply with the incredibly complex DPI application requirements, because they believe families should have educational options. The excessive overreach of DPI has resulted in many schools being denied entry into the program when they have met their requirements of our state law.”

Background: Any new private school looking to participate in the Wisconsin Parental Choice Program must comply with certain statutory and duly promulgated administrative requirements. See Wis. Stat. § 118.60(2)(ag); Wis. Admin. Code § PI 48.04(1)(f). We are not contesting either the statute or the rule.

Under the statute, schools must submit a budget and cash flow report by August 1 of the school year immediately preceding the school year in which the private school intends to participate in the program. It must do so using the form provided by DPI (Wis. Stat. § 118.60(2)(ag)1.b). To administer that statute, DPI has promulgated Wis. Admin. Code § PI 48.04(1)(f). The rule provides that a school must provide certain documents by the August 1 deadline.

WILL has learned that DPI goes beyond these requirements in evaluating new school applications. Even if schools submit accurate and sufficient information according to our state law, if they do not comply in precisely the manner that DPI requires, their applications are often denied. WILL sees no justification for the practice of DPI exceeding its lawful authority in such a way that keeps schools, and in turn families, out of the parental choice programs.

More on the Letter: WILL and School Choice Wisconsin’s letter indicates we are filing an open records request for information regarding any new private school applications to the Wisconsin Parental School Choice program for the 2023-24 school year; and how DPI ruled on each application. We are also requesting all records related to appeals for denied applications. As for future litigation, the letter asks DPI to either discuss a possible solution, or let us know if such a conversation would not be productive so that a lawsuit challenging the requirements can be filed.

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Cory Brewer

Cory Brewer

Education Counsel

Lucas Vebber

Lucas Vebber

Deputy Counsel

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