School books and apple, generic file photo

Gov. Scott Walker is blocking the state Department of Public Instruction from seeking outside counsel in a lawsuit filed in federal court — a move that comes after the state Department of Justice dropped the education agency as a client in the suit.

DOJ attorneys at the end of May dropped their representation of state Superintendent Tony Evers in a lawsuit brought by a private religious school and the parents of students there against a Washington County school district and DPI over a decision to refuse to provide the students transportation to the school.

DPI subsequently asked Walker’s office to allow the agency to seek outside counsel, but that request was denied, Walker spokesman Tom Evenson said late Wednesday.

At issue is how DPI officials determine the religious denomination of a private school in applying a state law that requires public school districts to provide transportation for private school students. The law only requires districts to offer free transportation to one private school per religious denomination in a given attendance area.

DPI attorneys were relying on DOJ attorneys because the lawsuit was filed in U.S. District Court in the Eastern District of Wisconsin, in which DPI attorneys initially were not allowed to argue cases, according to DPI spokesman Tom McCarthy. One DPI lawyer has since been qualified in the district, he said.

McCarthy said he was not aware of the governor’s decision until the Wisconsin State Journal notified him late Wednesday.

Evers in an interview Tuesday said DOJ lawyers dropped his agency as a client with little explanation. DOJ lawyers withdrew from the case on May 31. It was originally filed in Washington County Circuit Court on April 12, and later moved to federal court.

“I think this is the first time in my history that the attorney general decided not to support us in a case,” said Evers. “When the former attorney general (J.B. Van Hollen) was here, I know he took cases that politically didn’t work well for him, but he always took them, he always represented us. This kind of treatment is beyond the pale, frankly.”

Van Hollen and Attorney General Brad Schimel are Republicans. Evers holds an officially nonpartisan office, but is backed by Democrats.

DOJ spokesman Johnny Koremenos said Tuesday state attorneys are not representing DPI “because the DOJ believes that DPI does not have a legally defensible position in the case.”

Evenson said late Wednesday. Walker’s office denied DPI’s request for outside counsel following DOJ’s decision to deny representation.

Koremenos said last week that based on the agency’s legal analysis of DPI’s position in the lawsuit, “DOJ believes different representation was appropriate.”

Koremenos denied a State Journal request for DOJ’s legal analysis, saying conversations between DOJ and DPI are protected under attorney-client privilege.

Evers said his agency is “always in litigation,” and is concerned the decision to not represent the agency may begin a trend.

Former Attorney General Peg Lautenschlager, a Democrat, said DOJ choosing not to represent a state agency in a lawsuit “happens occasionally, at most, but only when the AG either believes the agency’s action or challenged statute to be unconstitutional — that no case can be made in defense — or when there is a legitimate conflict of interest, which is very rare.”

St. Augustine School in Hartford and parents of students who attend the school are suing DPI and the Freiss Lake School District.

The parents, who are represented by conservative legal group Wisconsin Institute for Law and Liberty, allege in their suit that the Freiss Lake School District and DPI are denying the parents’ First Amendment rights and are violating their right to exercise religion by not providing transportation for their children to school.

State law requires public school districts to provide transportation to private school students, but only to one school per religious denomination in an attendance area.

Friess Lake school officials denied the children transportation because they live in the attendance area of another Catholic school that already receives state transportation, and is affiliated with the Milwaukee Roman Catholic Archdiocese. Under state law, a school district isn’t obligated to provide transportation to children who attend a school within the same attendance area as another school of the same religious denomination.

After the parents appealed to DPI to challenge the district’s decision, DPI sided with the school district in March.

CJ Szafir, an attorney representing the parents, said based on a former Supreme Court decision, the law requires the DPI to only look at a school’s articles of incorporation to determine a school’s affiliation. Those articles describe the school as a private school governed independently of any denomination. He said it’s against the law for DPI to define “Catholic” because the articles of incorporation do not describe the school that way.

“This case will come down to what kind of inquiry the government can use to determine whether two private schools are affiliated with one another,” said Szafir.

The school’s website offers a more precise description of the school — “an independent and private traditional Roman Catholic School.”

DPI contends the same Supreme Court decision does not prohibit DPI or the school from looking beyond the articles of incorporation to determine whether attendance area of schools within the same religious denomination overlap.

In essence, legal precedent asks DPI in these situations to determine whether a school is Catholic, Lutheran or based in other religions, which is what the department did, said McCarthy.

Editor's note: This story has been corrected to reflect that a Department of Public Instruction lawyer has qualified to work in the Eastern District of federal court.

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