Eight choice schools Thursday charged that the Department of Public Instruction is violating state law by withholding their funding and threatened to take court action if the money is not released.

The state has no authority to withhold the funding from them this year, they contend.

The attorney for the schools, Gordon P. Giampietro, gave state superintendent John Benson until the end of the business day Tuesday to disburse the money.

If the state fails to release the money by the deadline, the schools and the families they serve will seek a court injunction ordering the release of the funds, Giampietro said in a letter he sent to Benson.

The DPI contends the schools don't meet the requirements for the Milwaukee Parental Choice Program, a voucher program that allows low-income children to attend private schools at taxpayer expense.

The schools said they do.

Deputy State Superintendent Steven Dold said: "We will review the letter we received with our legal counsel and give it appropriate consideration.

"As an alternative to preparing a lawsuit, we'd suggest they invest the time meeting the legal requirements of the program," Dold said.

Giampietro, in an interview, said the DPI already has "all the proof required" from the schools.

Last week, the DPI informed nine choice school applicants they would not get funding unless they could prove by Sept. 28 that they are private schools that meet the required minimum of 875 hours of instruction and provide the required curriculum in six basic subjects.

Three other applicants were told they were ineligible for funding this year because they don't provide the minimum hours of instruction and thus don't meet the definition of a private school.

To participate in choice, a school must be a private school, the state said.

The eight schools represented by Giampietro, who is with the law firm Michael Best & Friedrich, were among the 12 schools denied funding.

The eight schools threatening to take legal steps are Early View Academy, Grace Preparatory School of Excellence, Harbor Cross School, Kindergarten Plus, Lakeshore Montessori School, Sherman Park Preschool, Stepping Stone Learning Center and Zebaoth Learning Center.

The other four schools denied funding are Ceria M. Travis Academy, Gregory B. Flood Christian Academy, Immanuel Christian Academy and Louis Tucker Academy.

"The department's action is in violation of the choice statute and its regulations; made without meaningful notice and opportunity to comment; and made in utter disregard for the children in these schools," Giampietro said in the letter.

Giampietro said in the letter there is nothing in the choice law or regulations "that places a burden on any school to prove to the department that it meets the statutory definition of a 'private school.' "

"But, most importantly, the choice statute and its regulations do not set forth a framework for how or when a school should make such a showing," he said.

"The Department's action here - in the absence of duly promulgated regulations and more than a month into the school year - is simply an arbitrary exercise of presumed power that will not survive judicial scrutiny."

Giampietro said the DPI was attempting to adopt a new, unwritten policy and enforce it after the school year had begun. Changing past practice without providing prior notice and an opportunity to comment on it is a violation of the law, he said.

Officials with the schools said they were surprised by the state's decision, since they had already submitted information to the DPI and classes had been in session for several weeks.

The schools were expecting the first of four installment payments from the state last week. Schools participating in the choice program receive $5,326 per pupil.

There were 114 applicants for the choice program this year. A large majority of schools participating have complied with state regulations.

Wednesday, the non-profit Partners Advancing Values in Education said it would award $500,000 in scholarships to students at the 12 schools so their education would not be disrupted while the schools and the DPI work toward a solution.