School choice advocates are suing the Wisconsin Department of Public Instruction for the timing of its release of test score results for schools in the state’s charter and choice programs.
The lawsuit, filed Wednesday in Jefferson County Circuit Court by School Choice Wisconsin, Inc., Wisconsin Institute for Law and Liberty, Will Flanders of Cudahy and Matt Kittle of Madison, points to a state statute requiring DPI “release the data all at the same time, uniformly, and completely.”
DPI sent emails to members of the news media Sept. 9 and 10, according to the lawsuit, inviting them to a Sept. 11 phone call to ask questions about test result data set for release on Sept. 12. The results were embargoed for release until 12:01 a.m. Sept. 12.
Kittle, the executive director of conservative advocacy nonprofit Empower Wisconsin, Inc., participated in the call, while WILL requested access and was told it was only for members of the news media, according to an email record included with the lawsuit. A link in the news release to the full public school data was active in the embargoed news release, but the link to the parental choice data was not activated until Sept. 12.
“This Court should declare the Defendants’ conduct unlawful and permanently enjoin its future occurrence,” the plaintiffs wrote. “The Defendants can easily comply with state law by ensuring that when they publicly release qualifying school choice data, they release all of the data to everyone at the same time and do so without any ‘spin.’”
DPI and State Superintendent Carolyn Stanford Taylor are named as defendants in the lawsuit. In an emailed statement, DPI spokesperson Benson Gardner said the department released all of the data publicly at the same time on Sept. 12.
"The department provided complex assessment data to the news media one day earlier simply to allow them lead-time to write their stories, including in-depth print articles," the statement read. "The department followed the law in the public release of this information."
The embargoed news release did include aggregated data on the choice program, which the lawsuit alleges shows “a deliberate attempt to shape the news narrative of the assessment results so as to make public schools appear in a more positive light and choice schools appear in a more negative light.”
SCW president Jim Bender said in a news release that DPI “released public data with an ideological finger on the scale.”
“State agencies are supposed to act in an objective, predictable and unbiased manner when applying the law,” Bender said.
The lawsuit challenges the practice of releasing embargoed information to the media, which plaintiffs state “are members of the public” rather than state officials, when law requires information be shared "all at the same time." Embargoed information is often used to allow media members to have a story written that can be published immediately upon public release of the data.
“By releasing data first to select members of the public on September 11, then to the rest of the public on September 12, DPI did not release the assessment data ‘completely,’ as required by (state statutes),” the lawsuit states. “It first released the data to the news media while withholding that data from the rest of the public, then released the data to the rest of the public.”