Scott Walker, Wisconsin Governor, Cannot Dictate Public Education Policies, Judge Rules Law Unconstitutional

Judge: Scott Walker Control Over Education Department Unconstitutional
Wisconsin Republican Gov. Scott Walker waits in line to vote Tuesday, June 5, 2012, in Wauwatosa, Wis. Walker faces Democratic challenger Tom Barrett in a special recall election. (AP Photo/Morry Gash)
Wisconsin Republican Gov. Scott Walker waits in line to vote Tuesday, June 5, 2012, in Wauwatosa, Wis. Walker faces Democratic challenger Tom Barrett in a special recall election. (AP Photo/Morry Gash)

Statues that give the Wisconsin governor power to approve or block new education policies is unconstitutional, a Madison judge ruled Tuesday.

The decision overturns -- only as it applies to the state's Department of Public Instruction -- a law enacted last May that gives the governor authority to kill rules proposed by state agencies. The legislation was passed as part of a special legislative session on jobs that Republican Gov. Scott Walker called last year.

The state's superintendent of public instruction is unique among state department chiefs, however, in that the responsibilities held by the position are expressly stated in the state constitution. The DPI is currently headed by state schools Superintendent Tony Evers.

"Administrative rule-making is an important way in which a superintendent exercises his or her constitutional authority over the supervision of public instruction," Dane County Circuit Judge Amy Smit wrote in the decision. "Because Act 21 allows the governor to bar the superintendent from proposing rules, or even from beginning the process of rule-making by submitting a scope statement to the Legislature, Act 21 places the governor in a position superior to the superintendent in the supervision of public instruction."

The ruling responds to a lawsuit filed last year by parents and members of teachers unions Wisconsin Education Association Council and Madison Teachers Inc. challenging the law's constitutionality. The state constitution says that "the supervision of public instruction shall be vested in a state superintendent and such other officers as the Legislature shall direct." The plaintiffs cited a 1996 Supreme Court decision ruling that the governor and state lawmakers cannot give "equal or superior authority" over public education to any other official.

To be sure, the law is still in effect for other state agencies, requiring them to submit policy proposals to the governor for approval before handing them off to the state legislature. Previously, lawmakers did not require the governor's pre-approval to enact new agency rules. Democrats quickly labeled the law a power grab by Walker, and Evers had asked the court to block the policy. Evers expressed in a statement Tuesday that he is pleased with the judge's ruling.

"I have been consistent in my opposition to this legislation on constitutional grounds and had proposed remedies during the legislative debate on this law," Evers said. "My concerns are validated by this ruling."

Walker had said the law served to pull back on the broad rule making authority that has expanded to agency bureaucrats over the years, hurting businesses and turning policymaking more opaque. Walker's office has also promised to appeal Smith's ruling.

"We are confident we'll win upon appeal," Walker spokesperson Cullen Werwie told the Wisconsin State Journal.

Walker has held a controversial governorship in education, carrying a tumultuous relationship with labor unions and teachers. The Tuesday decision is just the latest in a series of Walker policies struck down in court, including one that severely limits collective bargaining for teachers and other public employees.

The decision comes as about two-thirds of Wisconsin's school districts see a drop in state funding this year, marking the second of a two-year, $834 million education budget reduction plan signed by Walker last summer.

The 272 districts facing reductions this year yields a slight improvement from last year, when nearly all of the state's 424 school systems saw drops in state funding, according to figures released this week by the state Department of Public Instruction.

Walker's budget was signed in an effort to plug the state's $3 billion shortfall as of last year. The two-year $66 billion plan initially reduced collective bargaining for teachers to much backlash, resulting in a number of cutbacks including scrapped programs and layoffs.

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