Teachers Union, Superintendent Demand Court Close Virtual School

Published January 1, 2008

I represent students and parents who are defendants in Johnson v. Burmaster, an ongoing, bellwether case, filed in 2004, that will determine whether nineteenth-century concepts of teacher certification will stifle twenty first-century individualized instruction.

The plaintiff is the 98,000-member Wisconsin Education Association Council (WEAC). In addition, Elizabeth Burmaster, superintendent of the Wisconsin Department of Public Instruction (DPI), is asking courts to close Wisconsin Virtual Academy (WIVA), a virtual charter school created by the Northern Ozaukee School District (NOSD) in 2003.

NOSD employs WIVA administrators and state-certified teachers and provides curricula and virtual technology through a contract with K-12, Inc., the nation’s largest provider of virtual education.

WIVA enrolls more than 700 students statewide. Parents provide or monitor most instruction at home. WIVA teachers structure individualized programs and provide instruction directly to students through monthly virtual classes and periodic group activities. They also evaluate and supervise student progress through twice-monthly parent conferences, on-call e-mail and telephone access, and routine assessments.

Parent satisfaction and student achievement are high.

But on December 5, the Wisconsin Court of Appeals ruled the state may not make transfer payments to WIVA students–meaning the case will now head to the state supreme court. This is exactly what foes of educational freedom want to see happen, for political reasons.

Getting Parents Out

WEAC claims WIVA violates Wisconsin’s open-enrollment and charter school laws. Most important, it claims WIVA parents teaching their own children violate a state law requiring people “seeking to teach” in public schools be state certified.

WEAC does not complain that WIVA teachers teach too little, only that parents should not be allowed to participate in teaching their children.

WIVA parents assumed Burmaster would defend their rights, but in 2005 she “flipped,” filing a motion for judgment on the certification issue against herself! First Freedoms then intervened on behalf of state Rep. Mark Gundrum (R-New Berlin) and eight other WIVA families.

Despite claiming it represented the interests of “all Wisconsin schoolchildren,” WEAC argued they and their families had no legal interest in deciding whether their own school remained open.

In the trial court, WEAC and DPI argued WIVA teachers provided direct “synchronous instruction” to students less than 10 percent of the school day, compared with more than 90 percent by parents. I argued their point was irrelevant since it can’t possibly be illegal for parents to teach their own children too much.

Creating Issues

Instead, I argued, teacher certification should be a floor defining what teachers must do, not a ceiling defining what parents may not.

Any other view is absurd. Assistant State Superintendent Tony Evers admitted Wisconsin has no standard school day. Evers also admitted Wisconsin has no standards for synchronous instruction.

DPI has no data on synchronous instruction in conventional schools, has never performed or commissioned studies on the issue, and doesn’t know of anyone who has. The only information about synchronous instruction Evers could think of came from newspaper articles complaining there isn’t enough of it.

In fact, since the superintendent’s office was created in 1848, synchronous instruction was apparently of no concern at all until 2004, when WEAC and DPI decided it would be a useful argument for shutting down WIVA.

Redefining Teaching

WEAC and DPI proposed a broad definition of “teaching” so they could argue virtually anything WIVA parents do is “uncertified.”

Evers admitted under that definition most instruction in conventional schools isn’t written or delivered by certified teachers, either. Students learn directly from textbooks, workbooks, learning programs, computer-based instruction, educational films and videos, science experiments, independent projects, group learning, school-to-work employers, and the Internet–all without “synchronous instruction” by a certified teacher.

In fact, Evers acknowledged much of a conventional teacher’s day is just managing and processing large classes–not “teaching” at all.

Maintaining Employment, Control

Since the certification statute predated the Internet and is ambiguous at best when applied to virtual schools, we argued school boards should have discretion in the matter. The trial court agreed.

WEAC and DPI appealed. They now claim instruction by “uncertified persons” is OK in conventional schools because it’s delivered under the supervision of certified teachers. Yet Evers admitted certified teachers could provide “virtual” supervision, and the actual time WIVA teachers spend working directly with parents and individual students is greater than in conventional schools.

During oral argument in the court of appeals, WEAC and DPI acknowledged WIVA students are performing satisfactorily, but said student achievement isn’t relevant. Instead, they claimed WIVA operates illegally because “untrained, unqualified, and inexperienced” parents can’t recognize “teachable moments.” They then asked the court of appeals to reverse the trial court and order it to shut WIVA down.

This case isn’t about education at all–it’s about union employment and control. Burmaster appointed an expert study committee, which included experts from her own department. It recommended guidelines under which WIVA’s operation would be perfectly acceptable. But over the past four years Burmaster has refused to submit the committee’s recommendation to the legislative rules process. Instead she continues asking the courts to write regulations more to WEAC’s liking.

Delaying Decisions

At the beginning of the appellate process, the court of appeals certified the case to the Wisconsin Supreme Court because it presents a novel question with statewide impact. WEAC opposed certification, arguing this “is not simply a case where the facts make it a hard case to apply the law; it is a situation where the law was never intended to be applied.”

So why are WEAC and DPI asking the courts to apply the certification statute, which even WEAC agrees provides no guidance? The answer is: They don’t want guidance from the courts, they want delay. As WEAC brazenly argued, “the Supreme Court might be able to avoid making a decision in a politically charged matter and for which there may be no ‘right’ or ‘wrong’ legal answers.”

The state supreme court can’t possibly hear the case and issue a decision before the 2008 elections, when WEAC believes it can bring the legislature under Democratic control–which they believe will give the superintendent and WEAC the administrative rules they want instead of those the expert committee recommended.

Michael Dean ([email protected]) is general counsel of First Freedoms Foundation, Inc., a law firm in Waukesha, Wisconsin.