First Win for Group Suing Wisconsin Education Agency Over Every Student Succeeds Act

Wisconsin capitol building
Wisconsin capitol building / Wikimedia Commons

The Wisconsin Institute for Law and Liberty (WILL) says it is "carefully reviewing" documents turned over by the state Department of Public Instruction (DPI) as part of an ongoing lawsuit that claims DPI violated the state's open records law.

After Judge Richard Niess ordered DPI to "release the records" or appear before him in the Dane County Courthouse to explain why the agency could not comply with the law, DPI produced hundreds of pages of documents at the last hour.

WILL attorneys are "carefully reviewing them to determine if SPI/DPI are illegally implementing federal law, ESSA [Every Student Succeeds Act], without the proper state authority," WILL Deputy Counsel Tom Kamenick said. "Further legal action could be warranted."

Kamenick added that it was "deeply disappointing it has taken DPI months to comply with our [FOIA] request. The public has a right to know how DPI is spending their money and whether any laws are being violated."

The nonprofit organization filed the request to determine if DPI was implementing guidelines created by the Obama-era Every Student Succeeds Act federal education program without state legislative approval.

"We believe that DPI is violating state law pertaining to implementation of the federal report cards," Libby Sobic, director and legal counsel of education policy at WILL, told "Wisconsin law requires DPI, and other state agencies, to go through the regulatory process. Two years ago, WILL warned DPI that they could not implement portions of the ESSA state plan without the proper legal authority from the state legislature. Instead, DPI has moved forward unilaterally and is attempting to avoid the legislature and regulatory process by implementing the federal report cards."

ESSA, which governs K–12 public education nationwide, became law in 2015, replacing the 2002 No Child Left Behind Act. Under ESSA, states have flexibility to determine their own educational goals and are required to submit them to the U.S. Department of Education explaining how they plan to reach them.

U.S. Department of Education Secretary Betsy DeVos approved Wisconsin’s state plan in January 2018. By September 2018, all states received approval from the U.S. Department of Education for their ESSA state plans.

Federal report cards, which have corresponding funding and other consequences, are separate from state report cards. Wisconsin’s state report card is based on state requirements and the new federal report card.

In August 2018, WILL attorneys filed an open records request to determine if DPI was breaking state law by unilaterally implementing ESSA. During this process, WILL learned that DPI sent preliminary reports to school district superintendents about ESSA, and required them to keep the documents from the public, including their school boards. The documents DPI sent to school superintendents are the very documents WILL requested.

DPI also sent school superintendents the final "joint federal notification packets" on ESSA, which also stipulated that the information not be made public before March 5.

As a result, DPI could be applying a federal accountability system to schools and districts without having any state legal authority to do so, WILL argues.

Wisconsin’s DPI unilaterally wrote Wisconsin’s state plan with very little input from the state legislature and governor, WILL argues. WILL’s testimony before the Wisconsin Assembly Education Committee expressed that state law requires DPI, and other state agencies, to follow specific laws before creating regulations.

State law establishes a "presumption of complete public access to government records" and gives the public the "right to inspect any record" subject to exemptions that do not apply to it. The state Attorney General recommends the period of 10 working days is a reasonable response time for an open records request to be fulfilled. WILL’s request took longer than six months and a court order before it received the requested documents.

Federal law requires that federal report cards must be made "widely accessible to the public." The U.S. Department of Education issued guidance to states and parents about the implementation of the federal report cards. To date, Arizona and Kentucky are the only states that have made public their federal report cards.