Nothing prevents state legislature from asserting its constitutional “legislative power”
January 9, 2017 – Milwaukee, WI – Last week, WILL attorneys CJ Szafir and Libby Sobic released a memo explaining how new federal law, Every Student Succeeds Act (ESSA), impacts K-12 education in Wisconsin. The memo mentions how Superintendent of Public Instruction Tony Evers is planning to unilaterally make decisions on education law and policy issues such as report cards, academic standards, and intervention plans for low-performing schools.
In a Watchdog story, Superintendent Evers and DPI responded to this by claiming that “[i]n Wisconsin, the constitutionally-elected State Superintendent of Public Instruction is ultimately responsible for submitting the ESSA plan.”
We repeat: There is nothing in the Wisconsin Constitution, federal law, or state law that prevents the state legislature from passing a bill that would have them play a role in the approval – or development – of the state plan. Superintendent Evers must send the plan to the U.S. Department of Education in September, but that does not mean he gets to unilaterally make policy decisions.
ESSA does not prohibit state legislative and gubernatorial involvement in the development of the state plan. We know this because it is currently happening in other states. For example, in Kentucky, legislation was drafted that would require the Commissioner of Education to submit to the legislature what legal changes have to be made in order to comply with ESSA. In Alabama, Hawaii, and Louisiana, the Governor is in charge of creating the ESSA task force for the state plan. The Colorado legislature has convened a committee of legislators to study ESSA compliance. The Colorado Education Commissioner has even conceded that to do certain things under ESSA, it would require a change in state law by the legislature.
Furthermore, federal law sets a floor – a bare minimum – of what DPI must do. DPI must have “meaningful consultation with the Governor and state legislature” in the development of the state plan. It is unclear, if not unlikely at this point, that DPI has met this legal threshold.
DPI has convened an Equity Council – with 5 of the 30 members coming from the Governor and legislature – but the Council has no voting or agenda-setting power. Decision-making power is all with Superintendent Evers. DPI claimed that it has “consistently briefed legislative leaders on ESSA.” But the chairman of the Assembly Education Committee, State Rep. Jeremy Thiesfeldt, said that he has not been consulted by DPI about ESSA or the state plan.
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