WILL Wins at Supreme Court of Wisconsin

Victory for reining in the administrative state, limited government, and school choice

The News: Today, the Wisconsin Supreme Court issued a 4-2 decision in Koschkee v. Taylor, a WILL case brought on original action, that holds the State Superintendent of Public Instruction (SPI) does not have the constitutional power to make laws.

The majority opinion states, “Rulemaking is a legislative power that does not fall within the SPI’s supervisory constitutional authority under Article X, Section 1. Rulemaking is a legislative delegation to the SPI; therefore, it may be limited or taken away, as the legislature chooses.

Why It Matters: While, under our system of government, the legislature makes the laws, the legislature has increasingly delegated authority to agencies to make rules that implement these laws. In doing so, it is important to limit agency discretion so as not to create a runaway administrative state. This is particularly so for the State Superintendent of Public Instruction and the Department of Public Instruction (DPI). The Superintendent and DPI have historically been dominated by an education establishment hostile to school choice and K-12 education reform. By requiring gubernatorial approval of the rules they make, the legislature sought to increase accountability by having the state’s most prominent elected official take ownership of those rules. This decision provides the executive and legislative branches with critical oversight authority over DPI rulemaking to ensure that laws are made in the interests of all Wisconsin children.

Background: The case, Koschkee v. Taylor, is the result of a long dispute over the constitutional powers of the State Superintendent of Public Instruction in relation to the legislature and the governor. In 2016, a divided State Supreme Court held in Coyne v. Walker that a law requiring the DPI to obtain gubernatorial approval for regulations was an unconstitutional violation of the State Superintendent’s constitutional right to supervise public instruction. Coyne produced a decision, but did not produce a majority for a legal rule or rationale.

The issue came up again in 2017. Then-State Superintendent Tony Evers ignored requirements of a new state law (REINS Act) that provided more oversight on all agencies’ rulemaking by the governor and the Department of Administration. Evers cited Coyne as the basis for his authority to exempt DPI from some of these requirements.

WILL asked the State Supreme Court to hear the case directly, bypassing the lower courts, so that the public could get clarity as soon as possible about what “supervision of public instruction” means. This is rare. The Court does this only in cases of the utmost statewide importance. The Court granted WILL’s request leading to today’s decision.

Quotes: WILL President and General Counsel Rick Esenberg said, “Today, the Wisconsin Supreme Court held that the State Superintendent of Public Instruction does not have the constitutional right to make laws. While the legislature can delegate the limited authority to make rules, today’s decision makes clear that it can also limit and control this rulemaking. It may ask the governor to exercise accountability by approving proposed rules.

“Given that the DPI has generally been a captive of the educational establishment and hostile to school choice, this decision is a huge victory for Wisconsin’s kids. It is also a huge win for democratic government, the separation of powers, and public accountability.”

WILL client Kristi Koschkee said, “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.”

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