THE LEGAL BEAT:
Virtual Legality

By Josh Dunn and Martha Derthick

Unions and Home Schoolers Attack Internet Education

In the past, schools have tried to bring technology to the student in the classroom. Now technology makes it possible to take the student out of the classroom and even the building. In virtual public schools, students learn at home under parental supervision while a certified teacher monitors progress and assigns grades. Schools typically provide textbooks, a computer, a printer, and sometimes an Internet connection.

Not surprisingly, this new form of school is leading to new legal questions. Lawsuits brought against virtual schools have ended with victories for the defendants in Pennsylvania in 2003 and in Minnesota in 2005. Two recent cases in Wisconsin have had the same result.

Wisconsin has been hospitable to educational choice. State law authorizes charter schools as well as enrollment outside of a student’s district of residence, provisions that together have made virtual schools possible. First to open was the Wisconsin Connections Academy (WCA), established in 2002 under a partnership between the Appleton Area School District and Sylvan Learning Systems. Two years later, the Northern Ozaukee School District started the Wisconsin Virtual Academy (WIVA), which adopted a package developed by K12 Inc., a company founded by former U.S. education secretary William J. Bennett to provide products for virtual schools. Students can come from anywhere in the state, and the sending district reimburses the receiving district.

The state’s largest teachers union brought suit against both schools. In both cases the union claimed that the sponsoring districts had violated charter law by enrolling students who were not physically attending their schools. The union also claimed violations of open-enrollment law. In the first case, filed in Dane County circuit court, the complaint was that the more than $5,000 per pupil reimbursement to the Appleton district was excessive because it was based on the cost of a traditional rather than a virtual school. In the second case, filed in Ozaukee County’s circuit court, the union complained that the open-enrollment law, like the charter law, permitted only actual attendance in the physical facilities of the receiving district. Both judges dismissed these claims. In the Dane case, an appeal failed.

In the Ozaukee case, which was decided in March of 2006, the union also advanced a wholly new claim: that parents, who play a large part in supervising instruction in virtual schools, are not licensed teachers, as required by Wisconsin law. On this issue as well, the judge ruled against the union. Although the state department of education was a defendant in the case, it sided with the union on this issue.

Union concerns presumably go beyond the legal arguments. The student-teacher ratio for virtual schools is much higher than the ratio for “brick and mortar” schools, so virtual schools threaten to reduce employment. Also, teachers, like the students, can work from their own homes instead of school buildings, which might tend to weaken the solidarity of the unionized work force.

In addition to teachers unions, the Home School Legal Defense Association (HSLDA) has opposed virtual schools. The HSLDA calls virtual schools a “Trojan horse” and an “attempt by the government to create small public schools in our homes.” Many home-schooling parents apparently do not agree. They like the idea that they can get a return on their tax dollars while still shaping their own child’s education. For the HSLDA, however, this can mean that parents no longer have an incentive to join their organization. In 2006, approximately 50 percent of WIVA students came from home-schooling backgrounds.

Enrollment in virtual schools remains small—in Wisconsin, a mere 1,460 students in 2004–05. But the numbers are increasing, and we know of no state in which a court decision has gone against virtual schools. As traditional schools increasingly allow students to supplement coursework with online classes, they erode the basis for opposition to virtual schools. If a virtual class works, why not a virtual school? If a student can learn Latin “virtually,” why not English, science, and history?

Josh Dunn is a professor at the University of Colorado–Colorado Springs. Martha Derthick is professor emeritus at the University of Virginia.