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Lawsuit: DPI broke law, skewed testing data

Empower Wisconsin | Nov. 7, 2019

MADISON — The Wisconsin Department of Public Instruction broke state law when it selectively released certain school choice test score data in September, according to a lawsuit filed Wednesday against DPI.

In its complaint, the Wisconsin Institute for Law & Liberty (WILL) alleges DPI released incomplete data on the school choice program to members of the media. (Full disclosure: Empower Wisconsin Executive Director Matt Kittle is named as a plaintiff in the lawsuit.)

Will Flanders, research director for the public interest law firm and the other plaintiff in the suit, was locked out from participating on the Sept. 11 press call. 

The lawsuit alleges DPI did not release testing data “all at the same time” in a “uniform” and “complete” way, required under state law. 

“Researchers depend on complete, accurate, and timely information to make critical evaluations about the success or failure of public policy,” Flanders said. “It is deeply frustrating that DPI continues to make our task more difficult, ultimately harming the debate and public discourse in our state.”

More so, DPI grouped the test scores of all Wisconsin choice students together in its press release, failing to factor in the differences in Wisconsin’s three parental choice programs, the lawsuit notes. Parental choice programs in Racine and Milwaukee enroll students at higher poverty levels than the statewide choice program, which has a disproportionate impact on achievement. 

“Grouping Milwaukee, Racine, and Wisconsin together is misleading, and an unfair characterization of the choice program,” WILL said in a statement. Doing so, according to the lawsuit, violated the state “uniform” and “complete” requirements. 

A DPI spokesman defended the practice of releasing testing data to a select group of reporters on an embargoed basis. 

“The department provided complex assessment data to the news media one day earlier simply to allow them lead-time to write their stories, including in-depth print articles,” DPI spokesman Benson Garner said in a statement. 

What has not been reported is that DPI officials had no intention of releasing the “in-depth” information in advance. The agency did so only after reporters and editors on the conference call complained. 

Regardless, state law clearly states that certain types of data on Wisconsin’s school choice programs must be released in a timely, uniform and complete fashion. 

The lawsuit, filed in Jefferson County Circuit Court, seeks to stop DPI from releasing data early “in a piecemeal manner” and skewing the data in an attempt to denigrate the school choice program, a competitor of the public school system. 

“State agencies are supposed to act in an objective, predictable and unbiased manner when applying the law. Unfortunately, the DPI has knowingly released public data with an ideological finger on the scale,” said Jim Bender, president of School Choice Wisconsin. 

The executive branch under Gov. Tony Evers has been criticized for its transparency failings. WILL has filed three separate lawsuits this year against state Superintendent Carolyn Stanford-Tayor, Evers’ hand-picked successor at DPI. 

“DPI’s selective release of key data makes it difficult for all journalists to do their jobs, and the agency’s failure to provide timely information marks the latest example of less-than-open government in the executive branch,” Kittle said.  

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