FILE - Winter school bus snow storm

The Wisconsin Institute for Law and Liberty (WILL), on behalf of School Choice Wisconsin Action (SCWA), have sued State Superintendent of Public Instruction Carolyn Stanford Taylor and the Wisconsin Department of Public Instruction (DPI) alleging “unfair, illegal treatment of private schools in Wisconsin’s choice programs.”

DPI recently announced its decision to deny private choice schools the opportunity to fully utilize online, virtual learning as part of classroom instruction, and count it toward state instruction requirements.

The lawsuit, filed last week in Waukesha County Circuit Court, is the second WILL has filed against State Superintendent Carolyn Stanford Taylor since she was appointed in January.

“Unfortunately, this lawsuit signals that Taylor’s DPI will be a lot like Evers’ DPI: hostile to school choice,” WILL said in a statement.

Due to massive snowstorms and temperatures frequently below zero degrees, many public schools have resorted to using online learning or “virtual instruction” to make-up for cancelled in-school class time. Virtual instruction includes using tablets, laptops, smartphones or devices from home through accessing the Internet. Online learning expands the curriculum and available instruction time to help students of differing abilities and learning preferences, education advocates argue.

DPI allows public schools to count virtual instruction toward the hourly pupil instruction requirements. But as of February 2019, DPI ruled that private schools in the choice program cannot include virtual instruction toward their hourly pupil instruction requirements.

All public and private schools participating in choice programs are required by law to provide at least 1,050 hours of instructions for students in grades 1 through 6, and at least 1,137 hours of instruction for students in grades 7 through 12. DPI announced that public schools can count “virtual instruction” toward the “direct pupil instruction” requirements but private choice schools cannot.

“Online learning gives schools the ability to improve student achievement by utilizing innovative teaching methods and the latest technology,” Adam Kirsch, principal of Milwaukee Lutheran High School, said in a statement. “Our schools have been experimenting with a new system to deliver high-quality learning content digitally to all students. This system could give us flexibility to deal with the harsh Wisconsin winters instead of cancelling class. Sadly, we were told by DPI that, unlike public schools, we cannot count our online learning towards the instructional hour requirements.”

In a statement sent to reporters, DPI said, “When it comes to crediting hours of virtual instruction provided to make up time lost due to weather, the DPI only has legal authority to credit these hours for public schools. This authority comes from Wisconsin Administrative Code section PI 8.01(2)(f), which is explicitly limited to public schools. There is no law or rule giving us the same authority for Choice schools, so absent a change in law, the DPI may only credit virtual instruction for public schools."

Terry Brown, chair of School Choice Wisconsin Action, said DPI's explanation is not entirely accurate, pointing out that the state Legislature changed the process for all state agencies to follow when setting rules and regulations.

“The Department of Public Instruction needs to be held accountable under the new law,” Brown said.

Ultimately, DPI’s decision is illegal, WILL argues, because it violates both state law and the U.S. Constitution.

“State law does not empower DPI to make such a decision,” Libby Sobic, director and legal counsel at WILL and the attorney for the case, said in a statement. “And if they were to do it, they need to go through the rule-making process, which they have not. DPI is violating constitutional rights under the Equal Protection Clause by treating private schools in the choice program differently than public schools.”

By not give students at choice schools the same opportunities as public schools, Sobic said DPI’s decision is “unfair, wrong, and illegal.”