WILL Press Release | WILL Asks Wisconsin Supreme Court to Limit Constitutional Power of Superintendent of Public Instruction

Explains that 2011 Act 21 should be reinstated and Thompson v. Craney overturned

September 15, 2015, Milwaukee, WI – Today, on behalf of a broad coalition of business groups, education reform advocates, and former legislators, the Wisconsin Institute for Law & Liberty filed an amicus brief with the Wisconsin Supreme Court in Coyne v. Walker in support of the governor and legislature’s right to change regulatory and rule-making authority of state agencies, including the Superintendent of Public Instruction. The brief was filed on behalf of the Wisconsin Manufacturers & Commerce (WMC), Metropolitan Milwaukee Association of Commerce (MMAC), School Choice Wisconsin, former Speaker of the Wisconsin State Assembly Scott Jensen, and former Democrat lawmaker Jason Fields.

2011 Act 21 allows the Governor to veto proposed rules from state agencies. But, shortly after Act 21 was enacted, a group of teachers sued Governor Walker alleging the law was unconstitutional because it violated the constitutional power of the Superintendent of Public Instruction to supervise public education. The Dane County Circuit Court ruled in the teachers’ favor and that ruling was subsequently affirmed by the Wisconsin Court of Appeals (District IV) in February.

Former Assembly Speaker Scott Jensen explained, “The Court of Appeals decision undermines the constitutional authority of the legislature to craft education policy. If it stands, future education reform legislation will be in serious jeopardy.”

WILL President Rick Esenberg noted: “The text of the Wisconsin Constitution is very clear. The superintendent’s duties and powers are entirely up to the discretion of the state legislature. Because an earlier court case, Thompson v. Craney, came to a different conclusion, it should be overruled.”

WILL’s brief explains that throughout the state’s history, the legislature has given and taken away various powers and duties of the superintendent. Teacher licensing in 1848, for example, was the exclusive power of town superintendents. It was only in 1939 that the legislature decided to give this duty to the Superintendent. 2011 Act 21 should not be treated differently.

Esenberg continued, “The Superintendent has no inherent constitutional authority to make public policy. We are asking the Wisconsin Supreme Court to reverse the Court of Appeals and to say, once and for all, that the legislature is the sole policymaking branch of state government.”

The stakes could not be higher.

Under the Court of Appeals decision and its interpretation of Thompson, the state legislature may not be able to, as some have already indicated, create a board to close failing schools unless the Superintendent controlled it. The legislature could take away the Superintendent’s power to accredit teachers, but could not grant that power to anyone else (as it has in the past). The Superintendent could even claim – as Evers already has – that he has the authority to unilaterally adopt Common Core standards without the state legislature’s authority.

The brief can be accessed here and is available upon request.

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