State Supreme Court hears case over education powers

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By SCOTT BAUER
Associated Press

MADISON, Wis. (AP) — The Wisconsin Supreme Court heard arguments Tuesday in a case that could result in giving Gov. Scott Walker more control over how state education policy is implemented by limiting the powers of the state superintendent.

While the current fight is over a 2011 law, the Supreme Court is being asked by Republican Attorney General Brad Schimel to overturn its unanimous ruling from 19 years ago that solidified the state superintendent’s independence as head of the Department of Public Instruction.

The case is about preserving the state superintendent’s role as a nonpartisan constitutional officer in charge of implementing and overseeing education policy, said superintendent Tony Evers, who has held the office since 2009 and attended Tuesday’s arguments.

“Now is not the time for activist court rulings that overturn long-standing constitutional precedence,” Evers said in a statement.

The Supreme Court took the case after Evers won twice at the lower-court level.

Justices peppered attorneys with questions over 2½ hours of arguments, focused largely on whether the Legislature giving the governor veto power over administrative rules pursued by the state superintendent amounts to a violation of its 1996 ruling.

“What has changed in 20 years to cause us to overrule a unanimous decision?” asked Justice Ann Walsh Bradley, who was on the court along with Justice Shirley Abrahamson in 1996. They now comprise the two-justice liberal minority on the seven-member court.

State Department of Justice attorney David Meany argued that if the ruling prohibits the Legislature from making such a change, then it should be overturned.

The 2011 law signed by Walker requires all state agencies, including the Department of Public Instruction, to get approval from the governor before drafting new administrative rules — the legal language that enacts agency policies and laws passed by the Legislature. Under previous law, the rules were written by state agencies and reviewed by the Legislature, but not the governor, before taking effect.

Parents and members of the teacher union, with backing from organizations representing school administrators and school boards, filed a lawsuit in 2011 challenging the portion of the law giving the governor the ability to block rules at DPI. They argue the law gives the governor more power than the independently elected state superintendent, and that is contrary to the court’s 1996 ruling.

The 1996 ruling came in a case challenging then-Gov. Tommy Thompson’s attempt to transfer powers from DPI into a new Department of Education under the control of the governor. At the time, the court said unanimously that the state superintendent is in charge of education policy in Wisconsin and the governor and Legislature can’t give “equal or superior authority” to anyone else.

“This places the governor in a superior position,” said Susan Crawford, attorney for the parents and union members, of the 2011 law.

Meany argued for the 2011 law’s constitutionality, saying if the state superintendent is unhappy with the governor’s decision, he can always go back to the Legislature to get it reversed.

Those opposing Evers include School Choice Wisconsin, a group that advocates for taxpayer-funded vouchers to attend private schools, and the state chamber of commerce. Their attorney, Rick Esenberg, said the 1996 ruling is “unjust and unworkable” because it gives sole and absolute power to the state superintendent.

The court’s ruling will be released before next summer.