Wisconsin Supreme Court: State superintendent must seek approval before setting education policy

MADISON - The Wisconsin Supreme Court reversed itself Tuesday by ruling the state schools chief cannot set education policy without permission from the governor, delivering a blow to Democrats who have controlled the state's education agency for decades.

The ruling makes successful an eight-year effort by Republicans to diminish the power of the state schools superintendent, who oversees the Department of Public Instruction — a fight that began with Gov. Tony Evers when he oversaw the agency.

The court's conservative majority ruled 4-2 Tuesday against state schools Superintendent Carolyn Stanford Taylor, Evers' successor, who must now seek approval from the Democratic governor before crafting rules for Wisconsin schools. 

Supreme Court Justice Shirley Abrahamson did not participate in the decision. 

In the ruling, the court's majority wrote while the state constitution vests the state superintendent with powers of supervision over Wisconsin schools, it does not grant the sole authority to write policy.

"The (state superintendent) is exercising legislative power that comes not from the constitution but the legislature," the majority wrote. "Stated otherwise, the legislature delegates part of its constitutional power to legislate to the (state superintendent), DPI and many other agencies in the form of rulemaking power."

Tuesday's decision overturns the court's own ruling three years ago when a split panel of justices said in Coyne v. Walker that Evers could write rules and regulations related to education policy on his own — without permission from then-Gov. Scott Walker and the Legislature — because the state constitution provides him with the power to do so. 

Evers, in a statement, didn't directly comment on the ruling but suggested the conservative majority on the court was ignoring established legal precedence.

"Both conservative and liberal justices agreed then that the constitution prevented the governor from vetoing rules overseeing public schools," Evers said. "The facts didn't change in the last three years and neither did the meaning of the constitution. Only the composition of the court did.”

The 2016 ruling was considered a blow to Republicans, who have sought influence over the DPI, which has been in recent years led by Democrats. The state schools superintendent is  elected every four years in spring elections.

It's unclear how overruling Coyne v. Walker will affect the Legislature's power over the Department of Public Instruction. The decision made clear the Legislature could not take certain powers away from the state superintendent. 

Stanford Taylor in a statement said Tuesday's ruling doesn't affect the "constitutional independence" of her office.

"While I am disappointed, we remain committed to Wisconsin schools and students and will continue our work to ensure each student is college and career ready," she said.

Republican lawmakers tangled with Evers for years over his opposition to the expansion of the state's private school voucher system and his 2010 adoption of the Common Core academic standards. 

But in 2017, Republican lawmakers passed a new law requiring state agencies to seek approval from the governor and the Department of Administration before crafting new policies. 

The conservative Wisconsin Institute for Law & Liberty filed a lawsuit that year as Evers emerged as the leading challenger against Walker, arguing the new law applied to Evers despite its similarity to a 2011 law the Supreme Court had just decided did not apply.

Rick Esenberg, president and chief counsel at WILL, said the decision makes clear the Legislature can limit and control the state superintendent's policymaking. 

"It may ask the governor to exercise accountability by approving proposed rules," he said.  

In her dissent, Justice Ann Walsh Bradley noted the new lawsuit was filed after two members of the court that had previously upheld the state superintendent's authority — Justices Michael Gableman and David Prosser — were no longer on the court. 

"And why are we here again? At oral argument, counsel for the petitioners was asked, 'you wouldn't be here asking a supreme court of the state of Wisconsin to overturn a decision that it just made two years ago if it were the same court, would you?' In response, counsel acknowledged, 'any lawyer has to make strategic decisions about what is likely to be successful.' Indeed," Bradley wrote. "Although nothing in our Constitution has changed since Coyne was decided, what has changed is the membership of the court."

Justice Rebecca Bradley in a separate concurring opinion criticized what she called "the concentration of power within an administrative leviathan."

"The philosophical roots of rule by bureaucratic overlords are antithetical to the Founders' vision of our constitutional Republic, in which supreme power is held by the people through their elected representatives, and ‘the creation of rules of private conduct’ is ‘an irregular and infrequent occurrence,’ ” she wrote.

While Tuesday's ruling isn't likely to change DPI's operations given Evers' alignment with Stanford Taylor on education policy, it will affect the agency when it is led by a Democrat and a Republican is in the governor's office or vice versa. 

“As a public school teacher and taxpayer, I am thrilled that the Wisconsin Supreme Court has recognized that the Superintendent of Public Instruction must follow the law and allowed for greater oversight on the Department of Public Instruction, an agency that is notoriously hostile to K-12 education reform," said petitioner Kristi Koschkee, an English teacher at LakeView Technology Academy in Pleasant Prairie.

Koschkee once appeared in an ad for Walker and recruited members for the Association of American Educators, a group for teachers who do not want to belong to traditional teachers unions that donate money to Democratic candidates. 

Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.