By Scott Bauer
MADISON, Wis. (AP) — A divided Wisconsin Supreme Court dealt Gov. Scott Walker a defeat on Wednesday, upholding a ruling that preserves the independence of the state’s elected education secretary and denies the governor veto power he sought over the office.
The court’s conservative majority was split on whether to overturn its unanimous ruling from 20 years ago that solidified the state superintendent’s independence as head of the Department of Public Instruction. The high court’s 4-3 decision rejects arguments made by Republican Attorney General Brad Schimel and upholds two lower court rulings.
The state constitution “requires the Legislature to keep the supervision of public instruction in the hands of officers of supervision of public instruction,” Justice Michael Gableman wrote for the majority. “To do otherwise would require a constitutional amendment.”
Superintendent Tony Evers has opposed overturning the law, saying the case was about preserving the office’s role as a nonpartisan constitutional officer in charge of implementing and overseeing education policy. While officially nonpartisan, Evers is generally backed by Democrats and teachers unions who have fought with Walker on this and a myriad of other issues.
Evers hailed the ruling, calling it a “victory for public education and the future of our state.”
“More than anything else, this ruling provides much needed stability for our schools and the students they serve,” Evers said in a statement. “I hope we can now get back to focusing on what works best for our kids.”
Walker spokesman Tom Evenson did not address the court’s ruling directly in his reaction. Instead, he noted the 2011 law that effectively ended collective bargaining for teachers and other public employees and said Walker would “continue to advocate for policies that prioritize student success.”
“Gov. Walker is dedicated to challenging the status quo when it impedes the ability of parents, school boards, and students to get the best educational outcomes,” Evenson said.
The case focused on a 2011 law proposed by Walker and passed by the Republican-controlled Legislature that required all state agencies to get approval from the governor before drafting new administrative rules. Those are 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.
That law raised questions about whether it was a violation of the 1996 state Supreme Court ruling that the Department of Public Instruction was independent of the governor’s control. Parents and members of the teachers’ union, with backing from organizations representing school administrators and school boards, filed the lawsuit.
The 1996 ruling arose from 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 unanimously ruled that the state superintendent is in charge of education policy in Wisconsin and that the governor and Legislature can’t give “equal or superior authority” to anyone else.
The state Justice Department, in defending the 2011 law, argued that if the court’s 1996 ruling prohibits the Legislature from making a change to administrative rules, then the decision should be overturned.
The three dissenting justices argued that the Legislature has the power to limit the superintendent’s authority over administrative rules. They said that power is given through state laws and not the constitution.
Schimel said in a statement that while the ruling was disappointing, it is “heartening” that justices determined the Legislature could limit powers of the superintendent. But he said there still remains “some doubt and unnecessary confusion” about exactly how the Legislature may do that.
Rick Esenberg, attorney for groups supporting the law, echoed Schimel’s comments in saying that portion of the ruling was positive. Esenberg represented the state chamber of commerce and School Choice Wisconsin, which advocates for the private-school voucher program.
Gableman was joined in the majority ruling by fellow conservative Justice David Prosser and the two liberal members of the court — Anne Walsh Bradley and Shirley Abrahamson. Those dissenting were Chief Justice Pat Roggensack and justices Annette Ziegler and Rebecca Bradley.