New lawsuit challenges constitutionality of state’s school choice programs

A group of Wisconsin citizens, backed financially by the liberal Minocqua Brewing Company Super PAC, filed a lawsuit earlier this month challenging the constitutionality of Wisconsin’s school choice programs, asking the state Supreme Court to take original jurisdiction.

The lawsuit takes a multi-pronged approach to the constitutional issues, among other things alleging that choice programs violate the “superintendent supervision” clause that vests supervision of public instruction in a state superintendent, with choice schools representing a dual system of instruction outside that supervisory scheme, and that they also violate the uniform taxation clause because school choice programs redistribute property tax burdens so that local taxes are no longer being used locally.

The Kirk Bangstad-backed lawsuit is the latest in a spate of lawsuits filed by progressive groups after justice Janet Protasiewicz took her seat on the court this past summer, giving liberals a Supreme Court majority. Progressives hope to judicially overturn a number of laws ranging from abortion to redistricting to school choice to voter ID.

This lawsuit targets five major education programs — the Milwaukee Parental Choice Program, the Wisconsin Parental Choice Program, the Racine Parental Choice Program, the Special Needs Scholarship Program, and the Independent Charter School Program.

Attorneys Brian Potts and Frederick Melms filed the lawsuit on behalf of Charles Uphoff, a former member of the Oregon School Board and now a town council member; Angela Rappl, a special-education liaison in the Milwaukee public schools system; Julie Underwood, former dean of the University of Wisconsin-Madison School of Education; Scott Walker, a physician with a child enrolled in the Prairie du Chien school district; and others. 

The petition asks the state Supreme Court to bypass lower courts and to take the case directly. The court has not rendered a decision as of this writing.

According to the lawsuit, the programs cost taxpayers approximately $568.5 million over the past school year.

“The Legislature has been attacking Wisconsin’s public schools under the guise of providing school choice for over a decade,” the lawsuit states. “But instead of creating a choice, the Legislature has created a cancer. And that cancer is growing rapidly, decimating Wisconsin’s public schools.”

The plaintiffs argue that the legislature’s current school financing system should be abhorrent to anyone who supports education of any type. 

“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 petition states. “For example, every time one student from the Madison school district obtains funding to go to a private school, the state takes away the entire state aid provided to that school district for five public school students.”

Calling it a predatory scheme, the petitioners say the “obvious implication” is that as the number of private school students funded in a school district increases, the average amount of funding per public school student in that district decreases — until it eventually hits zero.

“These private school funding mechanisms are quite literally draining some school districts’ entire pool of money allocated from the state for public education down to zero, and then shipping that money to private schools throughout the state,” the petition states.

Meanwhile, the petition continues, the Legislature has imposed a statewide cap on how much revenue each school district can raise from its local taxpayers to pay for public education. 

“This means even if the Madison or Appleton (or any other) school district wants to increase their own property taxes to spend more on educating their own students, the legislature has banned them from doing so,” the petition alleges.

Skewed funding

The petitioners assert that private school students are getting allocated more dollars per student out of each public school district’s budget than virtually all of those public school districts get allocated by the state to spend on each of their own students. 

“In other words, the Legislature has mandated that school districts must spend more to educate a student in a private school than the district gets to spend from the state on its own students,” the petition states. “More specifically, the statutes force well over 90 percent of the school districts to subtract a larger amount from their annual state allocation for each private school student from their district than they get allocated for each of those students (and every other student) by the state.”

That means every time an eligible student either switches from public school to a private school or just applies for funding for a private school without ever wanting to go to public school, the public school district’s state education funding goes down by a disproportionate amount, leaving less per pupil aid for the remaining public district school students, the petitioners claim.

“The result of this parasitic funding scheme is that substantial growth in state-funded private school enrollment will force public school districts into a funding death spiral,” the petition states. “And a death spiral is exactly what is happening today.”

In 1992, Milwaukee’s first experimental program cost state taxpayers a total of $2.5 million per year, the petition asserts, but the costs have ballooned. 

“Last school year, the voucher programs cost state taxpayers approximately $444.4 million, and the SN (special needs) program and the independent charter school programs cost state taxpayers an additional $27.7 million and $96.4 million, respectively,” the petition states. “The total cost of these programs last year was therefore $568.5 million — meaning the cost of these private school funding programs has skyrocketed by over 22,500 percent … since 1992.”

Broken down, by their calculations, the petitioners say a private school generally receives between $9,893 to $12,387 from the state per pupil, depending on grade level, which is then deducted from the resident school district’s state-provided education aid in full, the plaintiffs argue. 

“Meanwhile, that same public school district typically receives anywhere from $0 to $8,000 from the state for each of its other student,” the petition states. “The specific funding amounts per pupil change per district based on property values and per pupil spending.”

The petitioners emphasized that they were not making a blanket assertion that the state could not fund private schools in Wisconsin. 

“The petitioners are also not challenging any statute on equal protection grounds or on U.S. constitutional grounds,” the petition states. “Instead, the petitioners are asserting that these private school funding laws, as currently written, are unconstitutional under various Wisconsin-specific provisions in the Wisconsin Constitution.”

Finally, the petitioners said they recognized that striking down private school funding programs would impact tens of thousands of children who attend those schools. 

“They therefore do not make these claims lightly,” the petition states. “In the end, however, the petitioners feel that the interests of the hundreds of thousands of Wisconsin’s public school children who have been—and continue to be—negatively impacted by these parasitic funding programs outweighs the negative impacts to the children currently benefiting from these programs. This court should therefore strike down these private school funding programs forthwith.”

WILL, IRG respond

After the petition was filed, several conservative organizations responded, saying the lawsuit makes “extraordinary” claims that don’t add up.

The Institute for Reforming Government (IRG), whose CEO is CJ Szafir, pounced on those claims in its blog, saying the assertions were eyebrow-raising but meritless.

For instance, IRG focused on the petition’s claim that voucher schools receive more state aid than district schools, saying the lawsuit selectively manipulated state funding data.

“It does so by excluding hundreds of millions of dollars in categorical aid (like special needs) that are unaffected by the revenue limit and have no ceiling,” IRG stated. “This aid specifically flows to districts with expensive students.”

IRG also says the petition ignores that Wisconsin ranks 23rd nationally in public school spending per student by most recent data, 19th when adjusted for cost of living. 

“In fact, staffing levels are higher per student today than they were before Act 10,” the blog states. “The writers even forgot to update their complaint that voucher schools have no requirements regarding their curriculum, given that Act 20 will prohibit all voucher schools from ‘3-cueing’ in their literacy curricula as Wisconsin moves to the science of reading.”

Three-cueing is a model for teaching reading that involves prompting students to draw on context and sentence structure, as well as letters, to identify words, but it was always controversial and has increasingly fallen out of favor.

In short, IRG stated, the lawsuit was little more than an exercise in vaingloriousness.

“Ultimately, this lawsuit is a vanity project that would hurt low-income and working-class families,” the blog stated. “Milwaukee voucher and charter schools make up 6 of the top 10 high-poverty schools in reading proficiency (using the most recent data), 8 of the top 10 predominantly Hispanic schools, and 8 of the top 10 predominantly Black schools.”

Voucher and charter schools are Catholic, Lutheran, secular, and Islamic, all working together with school districts to serve children’s academic and cultural needs, IRG asserted. 

“A man from Minocqua, which has 0 voucher or [independent] charter schools in its district or even its county, would throw them all onto the street,” the blog stated, referring to MBC owner Kirk Bangstad.

The conservative Wisconsin Institute for Law & Liberty (WILL) also said it stood ready to defend Wisconsin’s Choice Program in court, representing parents, students, teachers, and choice schools across Wisconsin. WILL officials said they were preparing to file a motion to intervene in the case. 

WILL president and general counsel Rick Esenberg said the choice programs play a vital role in Wisconsin’s education system. 

“Unfortunately, far-left interest groups are uniting behind a Super PAC to take education options away from low- and middle-income kids and families across the state,” Esenberg said. “If successful, their efforts would destroy a popular program that serves thousands of Wisconsin families. The arguments that it makes would call into question Wisconsin’s entire education system, throwing us all into chaos. Their ‘facts’ in their complaint are incomplete, misleading, misinformed, and their legal arguments border on nonsense. WILL stands ready to oppose their efforts and mount a staunch defense of the program in court.”

In particular, WILL says the lawsuit’s “facts” don’t add up. Far from taking dollars from public schools, WILL says, the funding disparity that continues to exist is in favor of public schools and not schools in the choice program.

“Under current funding, Wisconsin school vouchers are still significantly less than the funding per pupil in the average district,” WILL states. “According to DPI 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.”

Then, too, WILL states, Wisconsin choice schools are not “moving local funds out of local districts,” as the petition proclaims: “School choice is funded entirely by the state, and local taxes solely fund local school districts,” WILL states.

In addition, WILL states, data consistently shows that as a group choice schools serve primarily minority and low-income families and outperform public school districts on a variety of education metrics. 

“The attempt to deny this opportunity to families that choose to participate is shameful,” WILL stated.

Other reaction

School Choice Wisconsin president Nicholas Kelly said the lawsuit, if successful, would kick tens of thousands of low-income students out of Wisconsin’s parental choice programs.

“Efforts to kill school choice will hurt thousands of low-income families throughout the state,” Kelly said. “In Milwaukee and Racine, where four out of five choice students are Black and Hispanic, this would fall most heavily on families desperate for educational options.”

Just last week, School Choice Wisconsin said new data from the Department of Public Instruction showed that students in Wisconsin’s parental choice programs outperformed public school students across a range of test results: On average, private school choice students from low-income and working class families outscored public school students from all income levels, the group stated, while private school students from working class Milwaukee and Racine families outscored public school students from all income levels in Milwaukee and Racine, and, in the statewide program outside of Milwaukee and Racine, low-income private school choice students outscored low-income public school students and had similar scores when compared to all public school students.

IRG also looked at the data and found choice schools outperforming many public schools.

“Most of Milwaukee’s high fliers remain choice schools,” IRG points out on its website. “Of high-poverty schools, the top 10 for reading include 5 voucher, 3 charter, and 2 district.”

On the other side of the equation, though, many more public schools aren’t making the grade, IRG states.

“Statewide reading proficiency is just 39 percent, and mathematics is 41 percent,” IRG states. “This rose from 2022, but is still -2 percent below 2019 levels. In other words, 6,000 students may permanently have been knocked off of a college track.”

The bottom line, IRG states, “10,000 more children fell behind grade level, pulling them closer to future poverty, sporadic employment, and unhappiness. Extending pandemic policies pushed struggling families into lasting jeopardy.”

School Choice Wisconsin cited a study for the Annenberg Institute at Brown University that found that “[a]s of 2018, [Milwaukee choice] students have spent more total years in a four-year college than their MPS peers. The MPCP students in the grade three through eight sample attained college degrees at rates that are statistically significantly higher than those of their matched MPS peers,” the study stated. 

What’s more, Szafir said, these dismal results came after schools were allocated $1 billion in federal COVID relief.

Nicholas Kelly, president of School Choice Wisconsin, said the state’s investment in choice was paying big dividends.

“Private schools that participate in Wisconsin’s parental choice programs provide the options parents want,” Kelly said. “This also shows that the recent bipartisan legislation for increased funding was a sound investment in our state’s future.”

Indeed, Kelly said last week, participation in Wisconsin’s parental school choice programs continues to grow, with nearly 55,000 students in one of Wisconsin’s four parental choice programs — an increase of 2,760 from last year — attending one of 383 schools. Both marks represent record participation. 

“School choice is growing because it works,” Kelly said. “All parents deserve the right to find the best education for their children, and students deserve the opportunity to attend a school where they are safe and will learn the tools needed to succeed in the classroom and in life.” 

Both supporters and opponents of school choice lined up to offer their reaction after the lawsuit was filed.

Americans for Prosperity-Wisconsin called on the Supreme Court to dismiss the case and called the move by the MBC Super PAC a political stunt.

“At its core, this lawsuit is simply trying to remove tens of thousands of Wisconsin students from the school that best fits their needs,” AFP-Wisconsin director Megan Novak said. “Not only are choice and charter schools constitutional, but these schools give kids a chance and parents a choice. This lawsuit is an asinine political stunt, and the court would be wise to dismiss these far-fetched claims and protect education freedom in Wisconsin.”

But state superintendent Jill Underly said she welcomed the lawsuit because every child has a constitutional right to public education.

“It says it right there in Article X, Section 3 of the Wisconsin Constitution,” Underly said. “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.”

The state’s school choice program came into being in 1989 with the enactment of the Milwaukee Parental Choice Program (MPCP) and has withstood multiple lawsuits trying to dismantle it.