The state Department of Public Instruction said it will change its policy and allow private schools to count online classes toward instructional time, just as public schools can do, after a judge ruled that treating them differently was unconstitutional.
The ruling Tuesday by Waukesha County Circuit Judge Michael Bohren was a win for School Choice Wisconsin Action, a group that includes private schools in the state’s voucher program and advocates for them.
The lawsuit filed last year alleged DPI was wrong to allow public schools, but not voucher schools, to count online learning hours toward the minimum number of instructional hours required each year.
In an email sent in February 2019 to attorneys for voucher schools, the department’s attorney said state law would have to be changed to give the department the authority to count online classes at voucher schools.
But after the judge’s ruling, the education department said in a statement it would be changing its policy.
“Prior to this lawsuit, the (education department) believed the law did not authorize choice schools to utilize virtual instruction,” the agency said in a statement. “Now that the court has determined it does, we will comply with the ruling.”
The judge ruled the education department can’t legally justify treating voucher and public schools differently when it comes to counting online classes. Bohren said in his order that not treating voucher and public schools the same on this issue violates constitutional equal rights of voucher schools.
“There is not a legitimate government interest in denying choice schools the opportunity to use ‘virtual learning’ as public schools do,” the judge wrote in his ruling. “The denial is harmful to the choice schools and its students.”
Libby Sobic, director of education policy at the Wisconsin Institute for Law and Liberty, which represented the voucher schools, hailed the ruling.
“For too long, (the education department) has been unfair in their treatment of private schools in Wisconsin’s choice programs, and (Tuesday’s) decision affirms that when they break the law, they will be held accountable,” she said in a statement.
Public and voucher schools must provide 1,050 hours of “direct pupil instruction” in any given year for students in grades 1-6. The requirement is 1,137 hours for grades 7-12. That becomes a challenge for districts in years when many schools close due to snow and cold weather.
Schools looking to get creative in making up the lost hours turned toward offering instruction over the internet. Last year, in the face of many snow days, various private schools in the voucher program asked the education department if they could offer online classes to satisfy the hourly instructional requirement.
The department denied the request. But it had no legal authority to do that and there is no harm in allowing voucher schools to count online classes, the judge said.
Not allowing it “removes a legitimate teaching technique from the choice schools, available to the public schools,” Bohren said.
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