Nearly three weeks after a landmark school-choice lawsuit was filed in Wisconsin, the state supreme court has agreed to let all concerned parties in the case voice their opinions on why it should take up the lawsuit.
The court’s seven justices asked both sides to present briefs up until Tuesday, after which the court will decide whether to hear the case.
The Wisconsin Institute for Law and Liberty (WILL), which would play a role in the case if it moves forward, says the move is standard procedure and that the request to present briefs does not indicate whether the court will accept the case.
A progressive interest group filed a lawsuit with the Wisconsin Supreme Court in mid-October, claiming the laws that fund the state’s private school-choice programs are unconstitutional.
The Minocqua Brewing Company Super PAC — a group run and funded by activist Kirk Bangstad, who is backing the legal effort — alleges the Milwaukee, Racine, and Wisconsin Parental Choice Programs, Special Needs Scholarship Program, and Independent Charter School Program are defunding public schools by diverting local and state funds toward private use. Those actions, considered to be in violation of the Wisconsin constitution’s public purpose requirement and uniform taxation clause, could be examined by the state’s highest court depending on whether it takes the case.
The plaintiffs — constituted of concerned citizens, parents, and taxpayers — also seek to challenge whether the legislatively created revenue limit, which caps the amount of funding that school districts can raise from property taxes to pay for public education, is unconstitutional.
The five scrutinized programs, which cover more than 52,000 participating students, cost Wisconsin taxpayers $568.5 million last school year, with $444.4 million incurred by the Milwaukee and statewide vouchers. The programs focused on independent charter schools and disabled students cost $96.4 million and $27.7 million, respectively.
According to the lawsuit, the main party at fault is the state legislature, which has supported and strengthened school-choice funding in the past three decades, accused of doing so at the expense of public schools. Republican Wisconsin State Assembly speaker Robin Vos, State Superintendent of Public Instruction Jill Underly, and Secretary of the Department of Administration Kathy Blumenfeld are all being sued for allowing the school-choice programs to continue operating under their nonuniform-funding practices.
“Rather than simply allowing students to choose to go to private school — and to have the State of Wisconsin pay for it — the Legislature has adopted laws that actually penalize public schools and their students when other students from their district go to private school and obtain funding from the state,” the complaint reads.
The same paragraph notes the state funding, as opposed to local district funds, allocated toward one independent-charter student in Madison, Wis., could be used to help five public-school students in the city’s school district. In other words, one public-school student receives $1,636, or about 17 percent of the $9,264 that one independent-charter student gets.
The Racine Unified School District, as another example, saw a reduction of nearly $30.5 million in state general aid last school year — funding that went to private schools in the area instead. It was projected that the district would lose over 230 students at the time.
The examples provided don’t account for the split between state and local funding.
The lawsuit alleges that, in addition to facilitating aid reduction, Wisconsin choice schools are “moving local funds out of local districts.” WILL says this is not the case, saying that school choice is funded solely by state aid and thus does not take away any local tax dollars.
The conservative law firm argues school vouchers receive less money on average per pupil than those enrolled in the district. “According to [Department of Public Instruction] data, the average district in Wisconsin now receives $14,863 in state and local funds. The K-8 voucher amount for the 2023-24 school year is 64 [percent] of that total, and the 9-12 voucher is 81 [percent] of that figure,” WILL states.
“Their ‘facts’ in their complaint are incomplete, misleading, misinformed, and their legal arguments border on nonsense,” WILL president and general counsel Rick Esenberg said in a public statement. “WILL stands ready to oppose their efforts and mount a staunch defense of the program in court.”
The lawsuit also claims the defendants have violated the Wisconsin constitution’s superintendent supervision clause, arguing the school-choice programs stand in the way of allowing the state superintendent to hold “sufficient supervisory control” over private schools.
Underly, who oversees the quality of Wisconsin’s public education in that role, responded to the suit:
“Public education is a constitutional right. It says it right there in Article X, Section 3 of the Wisconsin Constitution,” she said in support of the lawsuit. “And as a right guaranteed to our children, and as an opportunity for our state to put our money where our priorities should be, Wisconsin needs to fulfill its responsibility to effectively, equitably, and robustly fund our public education system. I welcome any opportunity to move Wisconsin in that direction.”
Former dean of the UW-Madison School of Education Julie Underwood, who acts as one of the plaintiffs in the case, told National Review that the state should not be “spending taxpayer money for unregulated, unsupervised schools that don’t accept all children and serve all children’s needs.”
“This parasitic funding system is pushing public school districts into an ever-worsening financial crisis, which is leading to what can only be described as a funding death spiral for public education,” added Brian Potts, one of the attorneys attached to the case.
Both Potts and co-counsel Frederick Melms filed the complaint on October 12 on behalf of Bangstad and the seven plaintiffs.
School-choice proponents see the effort as a precursor to similar challenges in other states.
Although its claims are solely confined to Wisconsin, the lawsuit could prompt similar litigation in other states that have comparable constitutional provisions. Esenberg, who promises to fight the case if it moves forward, told National Review the suit would have no precedential value outside the state but noted it could possibly be persuasive to others.
Esenberg said plaintiffs brought the legal complaint forward last month because the state supreme court now has an ideologically liberal 4–3 majority, increasing the chances for its justices to take the case. The court flipped after liberal judge Janet Protasiewicz won the judicial election in April.
“Clearly, the petitioners brought a case to challenge a 30-plus-year-old program that was held to be constitutional in the 1990s because they think they have a more favorable court,” Esenberg said, referring to the court’s upholding of Milwaukee’s school-choice program in 1992. “The law shouldn’t change because judges do. To be sure, sometimes precedent can be re-examined and overturned, but there is a body of law governing when and how that should be done.”
Potts rejected the notion that the advantageous timing was one of the factors in filing the lawsuit, asserting the plaintiffs’ decision “had nothing to do with the court’s ideological flip” this year.
“We filed directly with the Wisconsin Supreme Court rather than the state circuit court because public school children are being irreparably harmed by these parasitic laws and filing with the circuit court would have delayed resolution of the case by at least another year or two,” Potts told National Review. “We’re asking the Supreme Court to take the case directly because our clients believe that these unconstitutional laws need to be stricken from the statutes as quickly as possible to protect public school children.”
If the case moves forward and the Wisconsin supreme court rules in favor of the plaintiffs, it is unlikely the defense could appeal the decision to the U.S. Supreme Court. Whether the state’s highest court accepts the case remains to be determined.