Brewer owner’s lawsuit looks to capitalize on Badger State’s new court and attack school choice options

The story: After two court victories in the 1990s, Wisconsin, the national birthplace of modern-era school choice, now faces a court challenge that, if successful, could send more than 60,000 students back to the state’s district schools.

This time, a brewery owner, former congressional candidate and super PAC founder is funding a case that argues the state’s four scholarship programs and independent charter schools, which are authorized by organizations other than school districts, are a “cancer” with a funding method that has put school districts into “a death spiral.” The case, brought on behalf of eight Wisconsin residents, is going straight to the state Supreme Court.

School choice supporters say the lawsuit is an attempt to capitalize on this year’s Wisconsin Supreme Court election, which gave liberals a 4-3 majority for the first time in 15 years. The high court has not announced whether it will hear the case.

Flashback: In 1990, Wisconsin launched the nation’s first K-12 school choice program, empowering low-income parents to remove their children from failing Milwaukee schools and enroll them in the city’s private schools. The scholarship allowed up to 1,000 students to attend a non-sectarian private school of their families’ choice.

The ink on the bill was barely dry before it ended up in a legal challenge that made it to the Wisconsin Supreme Court. Opponents argued that the legislation was a special interest program and that lawmakers approved it improperly. An appeals court struck down the program, but state supreme court upheld it in a 4-3 ruling, saying in the majority opinion that the program’s limited scope “is not an abandonment of the public school system.”

The programs survived a second court challenge in 1998 when the state supreme court ruled that the state’s expansion to let religious schools participate did not violate the federal Establishment Clause. The U.S. Supreme Court declined to hear the appeal.

State of play:  Today, four school choice programs serve Wisconsin families, including three for lower-income families and one for students with special needs. The state also  Wisconsin Institute for Law & Liberty (WILL), a public interest law firm, recently filed a brief outlining why it thinks the court should decline the request to consider the case. The state also offers independent charter schools as another option.

The organization has also filed a motion to represent 22 families as intervenors if the high court agrees to hear the case. WILL attorney Cory Brewer sat down with NextSteps to share some details. Responses have been edited for clarity and brevity.

Q. The state supreme court has already upheld Wisconsin’s school choice programs twice in the 1990s. Why is this happening now?

A. We think this petition is politically motivated based on the recent shift in the makeup of the court.  A primary backer of the case is Kirk Bangstad, who owns the Minocqua Brewing Company and runs the Minocqua Brewing Super PAC. The Super PAC has a history of supporting liberal candidates and has been telegraphing aspects of this case for weeks on Facebook. The state’s educational establishment is lining up to attack choice and charter schools with this case. The state teachers union has expressed support for the case. One of the petitioners is Julie Underwood, the former dean of the School of Education at the University of Wisconsin—Madison.

Q. So, what is the new argument the petitioners are making about the programs’ constitutionality?

A. The lawsuit brings three claims as to why each of those four programs is illegal. Those claims are:

  • the programs violate the Wisconsin Constitution’s “public purpose” doctrine;
  • The way those programs are funded violates the Wisconsin Constitution’s uniform taxation clause
  • Those programs lack sufficient supervision by the superintendent of public instruction.

The fourth claim they raise in the lawsuit challenges “revenue limits” which impose a cap on how much money each school district is allowed to generate per pupil from all sources (this is a way to control property tax expenses, and revenue limits have been in place since the 1990s).

Q. What allows the petitioners to take this directly to the state Supreme and bypass lower courts? 

A. The Wisconsin Constitution provides the Wisconsin Supreme Court with so-called original jurisdiction. This gives the court the power to hear cases that have not first been heard by the lower courts. Sometimes, a quick and definitive answer to a legal question serves the public interest. The court has historically been fairly sparse on original actions over the years, and cases requiring complex and intensive factual development are not appropriate for original action. Normally, when deciding whether to accept a case as an original action, the court errs on the side of caution.

Q. Does the Supreme Court usually agree to hear direct petitions? 

A.  A Marquette professor studied this issue a few years ago. According to him, from the 2003-04 term through the 2020-21 term, there were 103 original action petitions denied and 15 granted, seven of which were in the 2019-20 term. Each year, the court hears about 50 to 60 cases total, so original actions do not constitute a significant part of its workload.

Q. How are the public schools actually doing in Wisconsin? The plaintiffs say in their petition that the scholarship programs have put school districts in a “death spiral” and say that for every scholarship student funded, the district lose the equivalent of funding for five students. What is your response?

A. We don’t believe petitioners’ claims are rational or factually accurate. Public schools continue to receive additional funding every year, and frankly school choice is very popular with the voters of Wisconsin. Also, school districts in Wisconsin are funded through a combination of state and local aid, and the local aid means that public schools get substantially more than the voucher in most every case. Inflation-adjusted spending is far higher today than when school choice began in 1990.

Q. If these petitioners prevail and the programs are shut down, what would that mean for school choice families in Wisconsin? Also, how would it impact district schools that must absorb many of these students? 

A. The stakes could not be higher. Over 60,000 students could see their education options go away if the relief sought by the petitioners were to be granted. We believe this would have a massive negative impact, including on public schools. Not only do public schools benefit from the competition, but we do not believe they have the capacity to absorb all the displaced students. As for practical implications, school choice enrollment (Milwaukee Parental Choice Program, Racine Parental Choice Program, Wisconsin Parental Choice Program and the Special Needs Scholarship Program) is 54,949 for the 2023-24 school year. Independent charters enroll another 10,802 students. Demographically, school choice is disproportionately used by students from minority backgrounds. According to data from the state report card, approximately 32% of participating students are African American, 28% are Hispanic, 32% are white, and the remainder are something else.

Avatar photo

BY Lisa Buie

Lisa Buie is senior reporter for NextSteps. The daughter of a public school superintendent, she spent more than a dozen years as a reporter and bureau chief at the Tampa Bay Times before joining Shriners Hospitals for Children — Tampa, where she served for nearly five years as marketing and communications manager. She lives with her husband and their teenage son, who has benefited from education choice.