The state Supreme Court heard arguments Tuesday on a case that could change the balance of power between the governor and the head of the state’s school system.
The high court is charged with determining whether Gov. Scott Walker can usurp some of Department of Public Instruction Superintendent Tony Evers’ administrative powers under a law, Act 21, signed in 2011.
A coalition of parents and activists challenged Act 21 on behalf of Evers, and a Dane County judge ruled in their favor in 2012. Dane County Circuit Court Judge Amy Smith cited a 1996 decision by the state Supreme Court that says no state official can take charge of roles delegated to the school superintendent.
"Because Act 21 allows the governor to bar the superintendent from proposing rules or from even beginning the process of rulemaking 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," Smith wrote in her decision.
An appeals court in Madison upheld the decision in February and state Attorney General Brad Schimel appealed to the state Supreme Court.
Justices asked probing questions of both lawyers. Some members argued the lawmaking process cannot be usurped except in rare instances.
“Whose power is superior?” said Justice Michael Gableman. “In our representative democracy it is the will of the people represented through the Legislature which enjoys privacy unless those actions are demonstrated beyond a reasonable doubt to be unconstitutional.”
Evers attended the hearing, which ran for roughly two and a half hours. In a statement released afterward, he said he expected the court to affirm the previous decisions and that “now is not the time for activist court rulings that overturn long-standing constitutional precedence.”
“The framers of the Wisconsin Constitution intended that the state’s public education system be overseen by the state superintendent of public instruction, an independent, nonpartisan constitutional officer directly elected by the people,” Evers said in the statement. “This case simply seeks to preserve this arrangement by ensuring the state superintendent and Legislature determine rules and policies that guide the education of our children.”
A ruling is not expected until this summer.