State Superintendent Tony Evers had no objection to the state Department of Justice dropping its representation of the Department of Public Instruction in a lawsuit, according to a letter released to the Wisconsin State Journal by Gov. Scott Walker’s office on Friday.
That’s in contrast to what Evers said in an interview Tuesday, when he complained about Attorney General Brad Schimel and his agency’s handling of the case.
In a story published in the Wisconsin State Journal Thursday, Evers said DOJ’s treatment of DPI in the case was “beyond the pale” and said it was the first time in his tenure the DOJ had chosen not to represent the agency in a lawsuit. The story also noted that Walker’s office had declined to approve DPI’s request to hire outside counsel.
But in a May 25 letter to Walker’s office, DPI’s chief legal counsel, Janet Jenkins, said Evers had no objection to DOJ withdrawing from a federal lawsuit over a transportation dispute with a private school in Hartford.
“I don’t think he objected to them withdrawing but objected to the manner with which they withdrew,” DPI spokesman Tom McCarthy said Friday when asked about the letter.
While Evers did not object to DOJ’s withdrawal, Jenkins did inform the governor’s office of the DOJ’s handling of the case — noting in a May 16 letter that DOJ told DPI it would no longer represent the agency in the case three days before the deadline to respond to the lawsuit’s complaint and that DOJ would not provide details to DPI about why representation was discontinued.
McCarthy said DOJ’s handling of the case “seemed like it was almost an intentional effort to push the deadline to a point where we didn’t have representation.”
In the May 16 letter, Jenkins said she sent DOJ a letter asking the agency to file a response to the complaint given the short timeline.
DPI officials didn’t mention the May 25 letter to Walker in interviews with the State Journal last week, and Walker’s office didn’t supply it until Friday.
In a statement late Thursday, Schimel pushed back against Evers for suggesting his decision not to represent the state’s education agency in a lawsuit was driven by politics.
“Contrary to the assertions of Superintendent Evers, there was no political decision involved in this case,” said Schimel. “DOJ made a legal determination with which DPI disagreed. No action taken by DOJ lessened DPI’s ability to assert its position in court, but DOJ is not able under the circumstances to advocate on their behalf.”
DOJ attorneys at the end of May dropped their representation of Evers in the lawsuit, which was 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. Walker then denied DPI’s request to seek outside counsel. In the May 25 letter from Jenkins, DPI also indicated it wished to represent itself.
At issue in the lawsuit 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 requires districts to offer free transportation to only one private school per religious denomination in a given attendance area.
Parents of students at St. Augustine School — which describes itself on its website as “an independent and private traditional Roman Catholic School” — say the Freiss Lake School District must provide their children with free transportation even though the district already provides transportation to another Catholic school in the area.
The school’s articles of incorporation describe the school as a private school governed independently of any denomination.
“Our review of DPI’s position in this particular case led DOJ to conclude that we could not support the legal arguments being advanced by Mr. Evers’ department,” Schimel said. “DOJ could have simply settled the case without necessarily having the approval of DPI. Rather, DOJ offered DPI the opportunity to seek other representation.”
McCarthy said Schimel’s statement to the Wisconsin State Journal “is the most detailed information we have been provided in writing and it is troubling that it’s coming through you.”
DOJ spokesman Johnny Koremenos said Tuesday state attorneys are not representing DPI because the DOJ attorneys concluded DPI “does not have a legally defensible position” in the case.
McCarthy said DOJ did not provide the agency with a legal analysis of DPI’s position in the case or an explanation of why representation was discontinued.
“Telling the media we have ‘no defensible position’ and providing no analysis to their client is problematic,” McCarthy said. “Again, we should not have to play Clue to figure out what is going on with our case.”
Koremenos on Friday called McCarthy’s assertion “preposterous.” Koremenos said all conversations on the matter were done through conference calls.