MADISON, Wis. — Wisconsin’s Supreme Court reversed itself Tuesday and allowed the governor to take control of public school policy from the state superintendent, a decision that could translate to a major victory for Republicans if they can defeat Democratic Gov. Tony Evers in three years.
The decision won’t have any immediate effect while Evers is in office. Evers, a former superintendent and teacher, appointed current Superintendent Carolyn Taylor to replace him and likely won’t block any of her initiatives. But the ruling would come into play if a Republican defeats Evers in 2022. Thanks to the court’s decision, that governor could block a liberal-leaning superintendent’s initiatives.
The case revolved around the so-called REINS Act, a law Republicans passed in 2017 that requires state agencies to obtain the governor’s permission before writing rules, regulations and policies. The Wisconsin Institute for Law and Liberty, a conservative law firm, filed a lawsuit asking the Supreme Court to decide whether the law applies to the state schools superintendent.
The justices ruled 4-3 in a separate case in 2016 that a nearly identical law requiring agencies to get gubernatorial approval before writing rules, regulations and policies was unconstitutional as applied to the superintendent because the position is an independent constitutional officer elected by the people.
The conservative-leaning court erased that precedent Tuesday, ruling 4-2 along ideological lines that the Wisconsin Constitution only grants the superintendent the power to supervise schools. The position’s rule- and policy-making authority stems from the Legislature, which can change that authority as it sees fit.
“It is of no constitutional concern whether the governor is given equal or greater legislative authority than the (superintendent) in rule-making,” Chief Justice Pat Roggensack wrote in the majority opinion.
She included a footnote justifying how the court could reverse itself. She wrote the 2016 opinion was fractured with two concurrences and failed to establish a “common legal rationale.” As result there was no rationale to analyze, opening the door for another look at the issues.
Justices Ann Walsh Bradley, Shirley Abrahamson and Rebecca Dallet make up the court’s liberal-leaning minority. Abrahamson, who is battling cancer, withdrew from the case. Bradley and Dallet complained in a dissent that WILL brought the lawsuit because it recognized that two justices who ruled the requirement doesn’t apply to the superintendent in 2016, David Prosser and Michael Gableman, have since retired. Prosser’s replacement, conservative Dan Kelly, served on WILL’s advisory panel. Bradley and Dallet chastised the conservatives for disregarding binding precedent.
“Throwing caution to the wind, the majority disregards the principles that fundamentally underlie our legal system,” Bradley wrote.
Lester Pines, an attorney for the state Department of Public Instruction, said it was obvious the court was going to rule in WILL’s favor as soon as it took the case. The court’s conservative majority is clearly inclined to expand Republican legislators’ powers, he said.
“There are few constants in life but it’s nice to know now that we can predict the outcome of cases before the Wisconsin Supreme Court before they’re argued,” he said.
Republicans have been trying for years to limit the superintendent’s powers. The position is officially nonpartisan but liberal-leaning superintendents have controlled the office for nearly two decades. The GOP and its allies intensified their efforts in late 2017 in an attempt to weaken Evers as he prepared to mount a campaign against then-Gov. Scott Walker.
WILL has been pushing to expand the state’s voucher school program. Students in the program can receive state subsidies to offset private school tuition. Evers has been a loud opponent of the program.
Rick Esenberg, president and general counsel for WILL, called the ruling a “huge win for democratic government.”