The Wisconsin Supreme Court on Wednesday preserved the powers of the state’s schools superintendent, finding unconstitutional a law Republicans passed in 2011 that requires state agencies to seek approval from the governor before creating new administrative rules to carry out policies, regulations and laws according to the Wisconsin State Journal and the Milwaukee Journal-Sentinel.
In a narrow 4-3 ruling, the court’s conservative majority split in upholding a 1996 ruling to reach a decision that gives the state’s superintendent autonomy in adopting policies that govern the state’s schools and to rule that a 2011 law cannot be applied to the Department of Public Instruction (DPI), a state agency the state superintendent oversees.
Conservative Justice Michael Gableman wrote the lead concurring opinion, joined by liberal justices Shirley Abrahamson, Ann Walsh Bradley and fellow conservative David Prosser. In dissent were three conservatives — Chief Justice Patience Roggensack and Justices Rebecca Bradley and Annette Ziegler.
Gableman, in his opinion, wrote that to diminish the superintendent’s authority would require a constitutional amendment.
Soon after taking office, Gov. Scott Walker signed a law giving his administration a greater say in the administrative rule process, used to implement state laws. Administrative rules include more specifics than state statutes and carry the force of law. Previously, the rules were written by state agencies and reviewed only by the Legislature before they could take effect.
The 2011 change effectively gave the governor the power to sign off on — or block — all administrative rules early in the process, even for agencies that are supposed to be independent. It also gave him a second chance to veto the rules before they were finalized.
Along with the School Administrators Alliance (SAA), the WASB submitted a friend of the court brief supporting the present system of an elected state superintendent to supervise public schools. This position is consistent with WASB Resolution 5.20 adopted by the Delegate Assembly.