State schools Superintendent Tony Evers (right) will have to rely on his staff attorneys to defend him in a federal lawsuit brought by a religious school, after the state Department of Justice withdrew from the case and Gov. Scott Walker barred him from seeking outside counsel. Credit: Journal Sentinel files

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State schools Superintendent Tony Evers will have to rely on his staff attorneys to defend him in a federal lawsuit brought by a religious school after the state Department of Justice withdrew from the case and Gov. Scott Walker barred him from seeking outside counsel.

Walker and Attorney General Brad Schimel through their spokesmen said they acted because the legal position taken by Evers' staff in the case is not defensible.

But Evers suggested the motivation was political, noting that the schools' attorneys — the conservative special interest law firm Wisconsin Institute of Law & Liberty — had sided with Walker and the DOJ in a recent state Supreme Court case decided in the superintendent's favor.

"Frankly, I was surprised and disappointed that the DOJ bailed on this," said Evers, who called the DOJ's action unprecedented. "We never received a legal analysis in writing. And I'm not quite sure yet what caused them to come to this erroneous conclusion" that the Department of Public Instruction's position was not legally sound.

Schimel issued a statement Thursday denying the accusation and saying the DOJ could have unilaterally settled the case, but instead gave Evers the option of seeking outside counsel.

"DOJ made a legal determination with which DPI disagreed," he said. "No action taken by DOJ lessened DPI's ability to assert its position in court, but DOJ is not able under the circumstances to advocate on their behalf."

The federal case stems from a lawsuit, initially filed by WILL in Washington County Circuit Court on behalf of St. Augustine School in Hartford and the parents of three of its students.

The lawsuit accuses Evers and the Friess Lake School District of abridging the family's free exercise of religion by refusing to provide the students free transportation to and from their Catholic school.

State law requires public school districts to provide transportation to private school students who live in their geographic area if they meet certain criteria. However, districts can refuse students if their school's attendance area overlaps with another of the same denomination that is already being served.

Friess Lake and Evers argue that St. Augustine's attendance area overlaps that of St. Gabriel School, which is operated by the Catholic Archdiocese of Milwaukee, and therefore isn't eligible.

WILL counters that the courts have interpreted "denomination" to mean sponsoring organization and, since St. Augustine operates independently of the archdiocese, the restriction should not apply.

"We suspect the reason DOJ is not representing Superintendent Evers is that his actions are so blatantly inconsistent with Supreme Court precedent that establishes a separation of church and state for this dispute," WILL spokesman CJ Szafir said.

Last year, WILL filed a friend-of-the-court brief supporting Walker and Schimel's position in a state Supreme Court case that was decided in Evers' favor in May.

In that decision, the court found unconstitutional a 2011 law passed by Republicans that would have diluted the power of the independently elected state superintendent of schools and given the governor and lawmakers a greater say in education policy.

Evers said it is the first time in his 15 years at the Department of Public Instruction — seven of those as superintendent — that a state attorney general has walked away from a case.

"In the past, with (Republican Attorney General J.B.) Van Hollen, there were lawsuits that he always participated in," Evers said.

"I know some were politically charged. But he always stepped to the plate. It makes you wonder if this is going to be a concern going forward, if this is going to be an ongoing thing."