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State AG won’t represent Department of Public Instruction in Catholic school case

By   /   June 3, 2016  /   News  /   No Comments

Attorney General Brad Schimel’s office announced it will not be representing state Superintendent for Public Instruction Tony Evers or the department in a lawsuit challenging the state’s authority to decide whether a school is Catholic.

The suit was filed by St. Augustine School in Richfield and two sets of parents of students in the Friess Lake School District. The school and the parents are suing because the students are being denied bus transportation.

In an emailed statement, the state Department of Justice said “DOJ is no longer representing DPI in this case. We believe different representation was appropriate based on our legal analysis of DPI’s position.”

Photo by Wisconsin Attorney General's office

FIND YOUR OWN LAWYER: Wisconsin Attorney General Brad Schimel will not be representing school Superintendent Tony Evers in a First Amendment case.

The DOJ and the attorney general declined to comment further.

At stake is whether Evers and the Friess Lake School District get to decide if a school is Catholic or not. Schools with the same religious affiliation within a school district must divide the district into non-overlapping attendance areas and students are not entitled to publicly funded transportation from one attendance area to another.

The Friess Lake School district claims that St. Augustine is a Catholic school and so must split the district with another Catholic school. Evers and DPI concurred when the decision was appealed.

St. Augustine School says it is an independent private school that is not affiliated with the Milwaukee Archdiocese. The school teaches Catholic doctrine but it has its own board of directors and is incorporated separately.

Lawyers for the school and parents say the case has First Amendment implications because DPI is determining what is and what isn’t a Catholic school. The lawsuit has been removed from state court to federal court. 

SEE RELATED: Can a school district decide how Catholic a school is?

“From day one we felt like we had a very strong case. We have a client, St. Augustine, who we believe, has had their constitutional rights violated,” CJ Szafir of the Wisconsin Institute for Law & Liberty, the attorney representing the parents, said in an interview.

“What the school district and Superintendent Tony Evers have done was violate their First Amendment rights and directly contradicted a state Supreme Court case from about 25 years ago,” Szafir said. “We’re plowing ahead and going forward. From our side of things it doesn’t matter who represents DPI.”

DPI has not responded to requests for a statement regarding Schimel’s decision.


James Wigderson is a Wisconsin-based reporter for Watchdog. He is also an online contributor to MacIver Institute and RightWisconsin, blogs at the Wigderson Library and Pub, and was formerly an award-winning local columnist for the Waukesha Freeman. James is a member of Investigative Reporters and Editors. He lives in Waukesha, WI, with his wife Doreen and their children.