By Cori O’Connor Petersen and Libby Sobic

If government agencies are not held accountable, small procedural oversteps can become large abuses of power. That’s why it matters that Wisconsin’s education agency, the Department of Public Instruction (DPI), has failed in at least seven places to follow the required administrative rule-making process for a proposed regulation.

A few weeks ago, attorneys at the Wisconsin Institute for Law & Liberty submitted a public comment on DPI’s proposed rule to change its administrative policies on how to determine if disproportionality for minority students with disabilities is occurring in Wisconsin schools.

The substance of the rule is less important than the fact that DPI seems to think they are above state law.  They are not. Failure to follow state law could result in litigation.

The agency’s most egregious misstep is its citation of federal law as its source of authority to write the rule. State law, Act 21 from 2011, restricts agencies to do rule-making only when the state legislature gives them explicit legal authority. But DPI seems to believe that they can enact regulations—essentially state law—by relying on authority from the federal government.  

This is shocking and should send chills down the spines of state lawmakers in Madison. Republicans in Madison have worked tirelessly to roll back the administrative state. Yet, as DPI indicates, at least one state agency is finding a way to work around state law by relying on federal law. This raises significant federalism concerns.

If the education agency can get away with reporting to the federal government, what will prevent other agencies such as the Department of Natural Resources or the Department of Transportation from circumventing Wisconsin state law?

The Wisconsin agency also overstepped the rulemaking process in other ways. The guidelines for promulgating a rule require the agency to compare its rule to similar ones in its four neighboring states. Instead, DPI simply provided a paragraph explaining state requirements to comply with federal law.

A plain language analysis of what the rule-change means is another requirement. Presumably, this requirement is meant to provide curious legislators and voters with an understanding of the rule, and the tasks their tax dollars go to support. But in place of the analysis, DPI only provides a one-sentence explanation on the changes to the current administrative rule.

DPI is the agency responsible for overseeing K-12 education in Wisconsin. Everything from educator licensing to school lunches and programs such as English learners and school choice are in the agency’s wheelhouse. The agency holds vast responsibility and in a democratic government, responsibility must come with checks and balances, which the rule-making process is designed to ensure.

So why does DPI think it can exercise this authority? Perhaps it’s that DPI is directed by a state superintendent who is elected every four years in an off election year in the spring. And this has produced superintendents, such as Tony Evers, who has a track record of being hostile to education reform and the rule of law.  All other agencies are led by governor-appointed officials. But a difference in agency leadership doesn’t excuse DPI from the rule-making process to which other agencies adhere very closely. Like other agencies, DPI is subject to laws passed by the state legislature.

DPI is welcome to propose rule changes but must do so through the proper process and, as a Wisconsin agency, operate under the authority of the state of Wisconsin. If the state of Wisconsin doesn’t take missteps such as this seriously, the state can expect other agencies to follow in DPI’s footsteps.

Cori O’Connor Petersen is a writer and Research Associate at the Wisconsin Institute for Law & Liberty. Libby Sobic is Associate Counsel for Wisconsin Institute for Law & Liberty.