A divided Wisconsin Supreme Court dealt Gov. Scott Walker a loss yesterday in upholding a ruling that preserves the independence of the state’s elected education secretary and denies the governor power of veto over the Department of Public Instruction.
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.
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’s spokesman Tom Evenson did not address the court’s ruling directly in his reaction. Instead, he said Walker would “continue to advocate for policies that prioritize student success.”
“Governor 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.
Justice Department spokesman Johnny Koremenos said the agency is reviewing the decision and has no immediate comment.
The case focused on a 2011 law passed by the Republican-controlled Legislature and signed by Walker that gave the governor veto power over administrative rules pursued by the state superintendent. That raised questions about whether the law amounted to a violation of the 1996 state Supreme Court ruling that the office was independent of the governor’s control.
The state Justice Department 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 department’s attorney argued that if the state superintendent is unhappy with the governor’s decision relative to rules, he can always go back to the Legislature and try to get it reversed.
The law is unconstitutional because it does not allow DPI and the secretary “to proceed with their duties of supervision without the Governor’s, and in some circumstances the Secretary of Administration’s approval,” Gableman wrote.
The 2011 law required all state agencies 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 teachers’ union, with backing from organizations representing school administrators and school boards, filed a lawsuit in 2011 challenging the portion of the law that gives the governor the ability to block rules at DPI. They argued that the law gives the governor more power than the independently elected state superintendent, contrary to the court’s 1996 ruling.
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.
Those supporting the governor’s position and opposing Evers include School Choice Wisconsin, a group that advocates for taxpayer-funded vouchers to attend private schools, and the state chamber of commerce.
Gableman was joined in the majority ruling by Justices David Prosser, Anne Walsh Bradley and Shirley Abrahamson. Those dissenting were Chief Justice Pat Roggensack and justices Annette Ziegler and Rebecca Bradley.
The dissenting justices argued that those challenging the law had not proven that it was unconstitutional.