Cori O’Connor Petersen and Libby Sobic:

This is shocking and should send chills down the spines of state lawmakers in Madison. Republicans in Madison have worked tirelessly to roll back the administrative state. Yet, as DPI indicates, at least one state agency is finding a way to work around state law by relying on federal law. This raises significant federalism concerns.

If the education agency can get away with reporting to the federal government, what will prevent other agencies such as the Department of Natural Resources or the Department of Transportation from circumventing Wisconsin state law?

The Wisconsin agency also overstepped the rulemaking process in other ways. The guidelines for promulgating a rule require the agency to compare its rule to similar ones in its four neighboring states. Instead, DPI simply provided a paragraph explaining state requirements to comply with federal law.

A plain language analysis of what the rule-change means is another requirement. Presumably, this requirement is meant to provide curious legislators and voters with an understanding of the rule, and the tasks their tax dollars go to support. But in place of the analysis, DPI only provides a one-sentence explanation on the changes to the current administrative rule.

DPI is the agency responsible for overseeing K-12 education in Wisconsin. Everything from educator licensing to school lunches and programs such as English learners and school choice are in the agency’s wheelhouse. The agency holds vast responsibility and in a democratic government, responsibility must come with checks and balances, which the rule-making process is designed to ensure.

So why does DPI think it can exercise this authority? Perhaps it’s that DPI is directed by a state superintendent who is elected every four years in an off election year in the spring. And this has produced superintendents, such as Tony Evers, who has a track record of being hostile to education reform and the rule of law. All other agencies are led by governor-appointed officials. But a difference in agency leadership doesn’t excuse DPI from the rule-making process to which other agencies adhere very closely. Like other agencies, DPI is subject to laws passed by the state legislature.