Vos, Evers administration: High court should reject school choice lawsuit

It’s rare that the administration of Gov. Tony Evers and Assembly speaker Robin Vos join forces, but somehow Kirk Bangstad has managed to unite them, with both parties aligning against Bangstad’s bid to have the Supreme Court bypass lower courts and directly take up his challenge to the state’s school choice programs.

Backed by Bangstad’s Minocqua Brewing Company Super PAC, seven plaintiffs have filed a petition to have the high court directly take up their lawsuit against the voucher programs, but Vos and the state Department of Justice, representing Kathy Blumenfeld, secretary of the Department of Administration, are opposing the move, saying the case should be heard in circuit court first.

The other named defendant in the case, Jill Underly, the state superintendent of education, says that agency is neutral on the question.

Both Vos’s attorney and the Department of Justice (DOJ) argue that the Supreme Court is only allowed to take original jurisdiction of a case in exceptional circumstances and that no such circumstances exist.

Specifically, the lawsuit alleges that the state’s school voucher statutes spend more for students in private schools than for those in public schools; violate the state constitution’s uniformity clause; fail to provide adequate oversight of private schools in the voucher programs; and fail to require that private schools provide “essential” services to children with disabilities.

The DOJ said its response did not address the ultimate merits of those claims but simply explained why they would be more appropriately heard in the circuit court first. For one thing, the DOJ argues, the petitioners’ claims will require complex factual determinations beyond the scope of the high court.

“Even a casual reading of the petition reveals its factually intense nature: over 40 pages of assertions about school funding, the quality of private schools receiving vouchers, footnotes discussing the groups that sponsored these statutes, studies, and more,” the DOJ brief states. 

And the petition’s claims, if its underlying legal premises have merit, depend on those facts, the brief continues: “This is not the type of matter appropriate for this court’s exercise of its original jurisdiction. These factual questions ‘should be first presented to’ a circuit court.”

Likewise, the DOJ contends, the petitioners seek a judicial remedy that would require factual development and careful planning to navigate the potentially complicated effects on children and school systems — both public and private — throughout the state, which they say is another reason why the case is poorly suited for the court’s original jurisdiction.

“Petitioners ‘recognize that striking down these private school funding programs — which have grown to be very large in size — will impact tens of thousands of children who attend these schools’ and therefore do not bring their claims ‘lightly,’” the DOJ brief states. “But they offer no suggestions for how to mitigate these impacts, and they don’t explain how a huge transfer of private school students to the public school system would work on the ground.”

In essence, the DOJ argues, the requested remedy, especially on the timeline the plaintiffs desire, which is in the fall of 2024, could lead to chaotic and unanticipated outcomes. 

“Of the tens of thousands of students currently participating in the voucher programs, many might not be able to afford to attend their chosen school without funding assistance,” the brief states. “These children would need to be absorbed into the public school system. Additionally, many of the hundreds of charter and private schools in Wisconsin rely ‘heavily’ on voucher funding. If the voucher programs were terminated, it is reasonable to expect that some of these schools would close, and those students would need to be enrolled in the public school system beginning in the fall of 2024.”

Logistically, the DOJ continued, such an unprecedented mass movement of students could lead to staffing, funding, and classroom shortages in public school systems.

“In short, crafting anything like the remedy petitioners want would require a court to carefully examine the facts on the ground and develop a detailed injunction,” the brief states. “Expert input would likely be necessary to develop a process for the complicated transfer of state resources from private to public schools. This court could not do that work through a ‘speedy and authoritative determination.’”

No emergency

Just as important, the DOJ argued, the petition identifies no exigency of the type justifying the court’s exercise of its original jurisdiction. 

“To be sure, petitioners describe what they see as the dire effects of the statutes they challenge, and predict that, over time, public schools may collapse based on the current funding mechanisms,” the DOJ brief states. “But for purposes of the original jurisdiction analysis, the petition needs to cite current, concrete harms and a reason why a wait of two to three years (the time it takes for a case to work its way through the lower courts) would matter. The petition here does not do that.”

Then, too, the DOJ contends, the petitioners’ legal claims require further development and refinement in the lower courts.

“Petitioners’ legal claims depart from current Wisconsin case law,” the DOJ brief states. “Of course, this court can consider such changes, but the petition offers no legal principles or authority to explain how this court would go in the directions petitioners suggest.”

Among other things, the DOJ contends, the petition’s public purpose theories are undeveloped. The petitioners argue that the voucher statutes violate the public purpose doctrine, which is that, under current law, the legislature decides what constitutes a public purpose and whether a particular expenditure serves such a purpose, and the legislative determination of those questions is generally binding on the courts, the DOJ explained.

But, the DOJ further asserts, the petition doesn’t explain how the current standards are deficient under those principles, or whether those principles should remain in effect, or elaborate on what the constitutional minimum should be. 

“These allegations also need to be developed and refined in the lower courts,” the DOJ asserted.

Likewise, the DOJ argued, the petitioners’ uniformity clause claims are novel ones that are undeveloped, arguing on the one hand that the voucher statutes cause local governments to end up taxing too much, while on the other hand contending that the revenue limit statutes are unconstitutional because they don’t let local governments tax enough.

“The petition doesn’t offer legal reasoning or authority to support either theory,” the brief states.

Similarly, the brief states, petitioners’ theory does not develop a limiting principle, that is, it would seem to invalidate the state equalization aid program, which allocates state resources based on the wealth of a particular community, because “resources are allocated on the basis of ability to raise revenue from the districts’ property tax base.”

Finally, the DOJ brief asserts, the plaintiffs assert that the voucher statutes violate the state constitution that requires that “[t]he supervision of public instruction shall be vested in a state superintendent” because the statutes do not afford the Superintendent for Public Instruction adequate supervision authority over participating private schools.

That theory is also undeveloped, the DOJ asserted.

“[The constitution] confers the state superintendent with supervisory authority over ‘public instruction,’ and the petition does not offer an interpretative theory as to why the voucher statutes are ‘public instruction’ under that provision,” the brief states. “If the constitution does cover private schools receiving vouchers, petitioners would also need to develop legal principles about the amount of supervision that would be constitutionally inadequate. The petition does not do that.”

Simply put, the DOJ contends, the petition does not meet the court’s criteria for exercising its discretion to accept jurisdiction of an original action.

Vos’s brief

Vos’s brief laid out similar arguments as those of the DOJ, with some variations on the same theme, asserting that there is no exigency that would justify the court granting the petition and short-circuiting the ordinary judicial process; that numerous important disputes of fact preclude the court from granting the petition; and that Wisconsin’s school choice programs are constitutional.

With respect to the first claim, Vos’s brief observed that the high court has previously rejected an original action challenging the state’s various school choice programs. 

“Specifically, before the case that became Davis, plaintiffs first sought leave to commence an original action challenging the constitutionality of the MPCP [the Milwaukee choice program] just one month after that program was enacted,” Vos’s brief states. “This court denied the request, with chief justice Heffernan noting that although ‘there is an exigency of time associated with the implementation of the statutory educational program,’ the circuit courts were fully equipped to handle that exigency and to ‘assure that priority is given to [the case’s] disposition.’”

“This court should take the same approach as it did in Davis and deny the petition here, leaving petitioners free to raise their constitutional challenges in the ordinary course of litigation, if they choose to do so — first in the circuit court, then to the Court of Appeals, and then to this court, through the court’s petition-for-review jurisdiction,” Vos’s brief states.

As the Department of Justice did in its brief, Vos’s brief asserts that petitioners bring four claims, each of which rests on critical disputes of fact and each of which justifies the court’s denial of hearing the claims in the first instance in its original-action jurisdiction.

Among other things, Vos’s brief states, the petitioners misrepresent how the state’s school funding scheme and the equalization aid formulas work, the operation of which are central components of their claim. 

“Wisconsin’s school choice programs only affect the amount of equalization aid and revenue allotted to public schools,” Vos’s brief states. “The programs do not affect categorical aid, numerous grants, or federal aid awarded to traditional public schools, including the supplemental aid, high poverty aid, and special adjustment aid available only to public schools.”

The bottom line is, Vos argues, adjudicating the petitioners’ claim requires an examination of the entire school funding scheme, yet the petitioners omit the necessary data on those additional types of aid and how they offset the school choice program reductions. 

“Petitioners here, for example, claim that the school choice programs leave the public schools insufficiently funded, yet — in additional to fatally misunderstanding how the equalization aid formula works — they do not mention at all that the state provides categorical funding to public schools but not to the private schools in the choice programs,” Vos’s brief states. “This categorical aid alone vastly outweighs the entire cost of the school choice programs, but petitioners do not even attempt to explain how this affects their theory or calculus.”

Next, the brief continued, the petitioners make general assertions about how the school choice programs affect certain school districts but fail to include much of the factual detail necessary for the court to assess those arguments.

“Finally, petitioners omit several key features of certain of the school choice programs that weaken their argument here, making it impossible for a court to render a decision without additional fact finding,” the brief states. “As an initial matter, they challenge the charter school program in Count I (and their other counts), but charter schools are public schools — a point that petitioners do not seem to recognize.”

All of which was to say that the case was far from developed enough for the Supreme Court to adjudicate.

“Based on the foregoing, this court would particularly benefit from the sharpening and narrowing of the disputed points of fact and law that occur in litigation through the circuit court and Court of Appeals, particularly with respect to the operation of the statutory funding formulas, which formulas petitioners themselves concede are ‘incredibly complicated,’” the brief stated.

School choice is constitutional

Vos’s brief flatly states that school choice programs satisfy the public-purpose requirement and are constitutional.

“Education is a valid public purpose — indeed, ‘[e]ducation ranks at the apex of a state’s function’ — so a state program that does no more than provide educational opportunities to students on a neutral basis, like the four programs at issue here, satisfies the public-purpose doctrine, so long as the program provides adequate ‘governmental control,’” the brief states.

In addition, the brief asserts, the petitioner’s claim that the school choice programs violate the uniformity clause were similarly without merit. 

“Petitioners allege that the school choice programs violate the requirement that taxation be ‘uniform’ across the state because, when a student enrolls in a school choice program, the state reduces the amount of funding it provides to the public school district that the student would otherwise have attended, which forces that district to have to raise property taxes to recoup the difference,” the brief observes.

But under the uniformity clause, a taxing entity, such as a local subdivision, must levy property taxes in a uniform manner with respect to the individuals subject to that particular tax. 

“The programs do not violate this requirement because even if public school districts choose to raise property taxes as a result of receiving reduced state aid, there is no evidence or even an allegation that the districts do so in a non-uniform manner with respect to all property owners within the district, which is all the uniformity clause prohibits,” the brief asserts.

Although the school choice programs “allow eligible students to attend private schools outside of their district,” Vos’s brief continues, that does not divert property taxes generated in the student’s home district to a different district, as the petitioners claim. 

“Indeed, nothing about the school choice programs compels or even permits a school district to allocate tax revenue for out-of-district purposes,” the brief states.

Finally, Vos argues, the claim that the school choice programs do not provide the state superintendent with sufficient supervisory control over participating private schools is equally meritless.

”In the school choice programs, the Legislature has already granted the superintendent powerful oversight authority with respect to the participating private schools,” the brief states. “For example, schools must submit to an annual financial audit, and the superintendent can eliminate a school from a program for noncompliance with program requirements. Further, participating private schools are subject to statutory requirements governing instruction, curriculum, and attendance. Indeed, the Legislature has provided even more state-superintendent oversight over these programs than at the time this court concluded, in Davis and Jackson, that the government exercised sufficient ‘control’ over participating private schools to satisfy the public-purpose requirement.”

As the Department of Justice concluded, Vos’s brief asserted that the “court should deny the petition for original jurisdiction.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.