An organization representing schools in the private school voucher program are suing over the state’s different treatment of public schools in how they make up for the snow days during the 2018-19 school year.

The Wisconsin Institute for Law & Liberty (WILL) announced Wednesday afternoon they have filed suit on behalf of School Choice Wisconsin (SCW) and its member schools because they are not being allowed to use online classroom time to make up for the time lost due to heavy snow and unusually cold weather this past winter. The Wisconsin Department of Public Instruction (DPI) is allowing public schools, but not private voucher schools, to make up the lost time online.

“Once again, the state Department of Public Instruction is violating the law to harm private schools in the choice programs,” said Libby Sobic, the Director and Legal Counsel of Education Policy at WILL. “Public schools all over the state are using online learning to give their students expanded access to curriculum and as a way to avoid canceling classes due to Wisconsin’s winter weather. But DPI will not give students at choice schools those same opportunities. It’s unfair, wrong, and illegal.”

Under state law, public schools and schools in the state’s voucher programs are required to give a mandatory minimum number of hours of instruction. For grades 1 -6, schools must have at least 1,050 hours of instruction and for grades 7-12 at least 1,137 hours of instruction.

Traditionally, days of instruction lost because of winter weather have been tacked on to the end of the school year. As Milton Friedman might have observed, there is no such thing as a free snow day. However, school districts have been creative in reducing the number of hours they have to make up, from shrinking lunch periods to slightly extending the regularly scheduled school days. Allowing public schools to use online instruction will make it easier for those schools to making up the lost time.

Adam Kirsch, the principal of Milwaukee Lutheran High School, would like that option for his students. “Our schools have been experimenting with a new system to deliver high quality learning content digitally to all students,” Kirsch said. “This system could give us flexibility to deal with the harsh Wisconsin winters instead of canceling class. Sadly we were told by DPI that, unlike public schools, we cannot count our online learning towards the instructional hour requirements.”

The lawsuit contends that DPI does not have the authority to make the decision to allow online education to be used for public schools, but not private schools, to make up lost instruction hours without going through the rule-making process for state agencies complete with legislative review.

“The legislature changed the process for all state agencies in setting rules and regulations that carry the weight of law,” said Terry Brown, the chairman of School Choice Wisconsin Action. “The Department of Public Instruction needs to be held accountable under the new law.”

DPI says that they do have the authority under state law to allow public schools the option of using online education to make up for the lost classroom instruction time, but the agency’s hands are tied when it comes to private schools in the parental choice programs.

“When it comes to crediting hours of virtual instruction provided to make up time lost due to weather, the DPI has legal authority to credit these hours for public schools, but not Choice schools,” said Benson Gardner, DPI communications officer, in response to an email from RightWisconsin. “The authority to do so for public schools comes from Wisconsin Administrative Code section PI 8.01(2)(f), which is explicitly limited to public schools. There is no law or rule giving us the same authority for Choice schools, so absent a change in law, the DPI may only credit virtual instruction for public schools.”

However, Sobic disagreed with the interpretation from DPI.

“There is no state law that gives DPI the authority to deny choice schools the ability to credit hours of virtual instruction,” Sobic said. “If DPI wishes to prevent choice schools from utilizing virtual instruction, they have to write a regulation and go through the rule-making process which includes legislative oversight. They didn’t do that.”

The administrative code in question states:

(f) Hours of instruction. Each school district board shall annually schedule and hold at least 437 hours of direct pupil instruction in kindergarten, at least 1,050 hours of direct pupil instruction in grades 1 through 6, and at least 1,137 hours of direct pupil instruction in grades 7 through 12. The school hours are computed as the period from the start to the close of the school’s daily instructional schedule. Scheduled hours under this subdivision include recess and time for pupils to transfer between classes but do not include the lunch period. No more than 30 minutes per day may be counted for recess. Scheduled hours may also include the hours of instructional programming offered through innovative instructional designs that apply to the entire school or grade level. In computing the minimum number of instructional hours under this subdivision, schools may not count days and parts of days on which parent and teacher conferences are held, staff development or inservice programs are held, schools are closed for inclement weather and no compensatory instruction is offered virtually, and when no direct instruction is provided.