Gov. Scott Walker has denied a request from the Department of Public Instruction to hire outside defense attorneys after the Department of Justice declined to represent DPI in a case over school busing.
In the lawsuit, a Washington County family and St. Augustine School allege Superintendent Tony Evers overstepped limits on how the state can determine the religious affiliation of a school in deciding to deny public busing to a student.
Wisconsin state law guarantees free transportation for all public, and most private, school students. But, districts only have to provide bussing for students to one private school per operator in an attendance area. If an organization like the Archdiocese of Milwaukee operates multiple private Catholic schools with overlapping attendance areas, only one school has to get bussing.
The family and school argue the Freiss Lake School District should provide bussing to Catholic schools with overlapping attendance areas because they are run by separate bodies. In the lawsuit, they argue Evers violated the separation of church and state by researching the school’s denomination independently instead of relying on its incorporation documents.
A governor’s spokesman said the justice department found DPI’s position legally indefensible and the governor’s decision was based on that conclusion.
But Evers said his department still doesn’t know how that conclusion was reached.
“It was based on a legal analysis that we’ve never seen and the it completely lacked in any kind of transparency and then the governor’s office kind of went along with that analysis,” he said.
Evers said in his tenure as deputy superintendent and superintendent, this is the first time the DOJ has declined to represent DPI and added a previous Republican attorney general worked with the district even when it was politically inconvenient
In a written statement sent Thursday evening, Attorney General Brad Schimel said the decision not to represent DPI was not based on any political calculations, but instead opened the door for Evers’ department to defend its position in court.
“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 wrote. “DOJ could have simply settled the case without necessarily having the approval of DPI. Rather, DOJ offered DPI the opportunity to seek other representation.”
Another concern for Evers though is how he and his employees learned of the DOJ’s and governor’s decisions — from reporters at Watchdog.org and The Wisconsin State Journal.
“The fact that they haven’t shared that with us gives me pause.” he said. “We litigate lots of stuff regularly and we need to know whether the Department of Justice is going to be helpful.”
Attorneys within the Department of Public Instruction have been granted permission to represent the department in the federal court where the case will be heard, something they don’t normally do.