WILL Press Release | WILL Statement and Comment on Coyne v. Walker

Disagrees with decision but sees path for future DPI reform

May 18, 2016 – Milwaukee, WI – WILL President Rick Esenberg, who argued Coyne v. Walker in the Wisconsin Supreme Court:  “We are very disappointed in today’s decision finding Act 21 unconstitutional as applied to the Superintendent of Public Instruction. In our view, it misapprehends the nature of rule-making and the way in which the Department of Public Instruction actually wields its supervisory authority.”  As WILL argued in an amicus brief and during oral argument, the Superintendent’s power to make regulations has ebbed and flowed over time, presumably in a constitutional manner.  Therefore, the Superintendent does not need unchecked rule-making authority to fulfill his/her constitutional duties.   In fact, most of what the Superintendent actually does has nothing to do with rule-making.

Although today’s decision produced no majority opinion and establishes no binding precedent, it does appear that a majority of the Court rejected the expansive view of the Superintendent’s authority that was urged by Superintendent Tony Evers and opponents of educational reform in Wisconsin. “The path to meaningful change may have become clearer today,” Esenberg added.  Justice Michael Gableman’s solo opinion reaffirms the power of the Legislature over the Superintendent: “the constitution gives the Legislature control over what powers the SPI and the other officers of supervision of public instruction possess in order to supervise public instruction. As a result, the Legislature may give, may not give, and may take away the powers and duties of the SPI and the other officers of supervision of public instruction.”  That means that the Superintendent’s powers are not unconstrained and he is subject to legislative control with respect to making education policy for the State.

Chief Justice Pat Roggensack’s dissent, joined by Justices Annette Ziegler and Rebecca Bradley, concludes that “Article X, Section 1 granted the Superintendent only non-specific executive authority with regard to free public schools on a statewide basis.  That is the extent of the Superintendent’s constitutional powers.  I also conclude that Article X, Section 1 granted the legislature authority to legislate which activities (powers) the Superintendent could pursue and which obligations (duties) he was required to meet.”

Justice David Prosser, although concurring in the result, went further. He did not accept the idea that the Superintendent of Public Instruction must have “superiority over all other officers who are or may be vested with supervision of public instruction” and wrote that  the Superintendent’s authority “can never be viewed as off limits to constructive change by the legislature.”

The views of the three dissenters and Justice Prosser are, in particular, consistent with those urged on the Court by the Wisconsin Institute for Law & Liberty in its brief and oral argument. These four justices, buttressed by Justice Gableman’s opinion, make clear that the Superintendent is not the Czar of public education.  There is a path forward for reform.

WILL filed an amicus brief in Coyne v. Walker on behalf of the Wisconsin Manufacturers & Commerce (WMC), School Choice Wisconsin, Metropolitan Milwaukee Association of Commerce (MMAC), former Speaker of the Assembly Scott Jensen, and former Democratic State Representative Jason Fields.

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