By Benjamin Yount for The Center Square

Wisconsin’s state superintendent of schools is not a governor, and the Department of Public Instruction is not its own independent entity. 

The Wisconsin Supreme Court on Tuesday ruled that the state superintendent and DPI must get permission from the governor before changing or setting new education policies in the state. 

“The [state superintendent] is exercising legislative power that comes not from the constitution but the legislature,” the court’s majority wrote in its opinion. “Stated otherwise, the legislature delegates part of its constitutional power to legislate to the [state superintendent], DPI, and many other agencies in the form of rulemaking power. That the [superintendent] also has the executive constitutional function to supervise public instruction does not transform the [superintendent’s] legislatively delegated rulemaking power into a constitutional supervisory function.”

The question at the heart of the case goes back to when Tony Evers was state superintendent and Scott Walker was governor. 

The ruling overturns a 2016 decision that said the state superintendent did not need the governor’s permission to chart their own course. 

The Wisconsin Institute for Law and Liberty sued to challenge the lower court’s decision. WILL’s Rick Esenberg says the ruling will rein in another piece of the bureaucracy in Madison. 

“[This is] a huge win for democratic government, the separation of powers, and public accountability,” Esenberg said in a statement. “Given that the DPI has generally been a captive of the educational establishment and hostile to school choice, this decision is a huge victory for Wisconsin’s kids.”

Wisconsin’s current state superintendent, Carolyn Stanford Taylor, is downplaying the ruling. 

“The Wisconsin Supreme Court’s decision does not affect the constitutional independence of the Office of the State Superintendent,” Stanford Taylor said.  “It is limited to rulemaking. While I am disappointed, we remain committed to Wisconsin schools and students and will continue our work to ensure each student is college and career ready.”

But Esenberg says she’s missing the point.

“The Wisconsin Supreme Court held that the State Superintendent of Public Instruction does not have the constitutional right to make laws. While the legislature can delegate the limited authority to make rules, today’s decision makes clear that it can also limit and control this rulemaking,” Esenberg said. “It may ask the governor to exercise accountability by approving proposed rules.”

Supreme Court Justice Rebecca Bradley took that argument a step further in her addition to the majority opinion.  

“The concentration of power within an administrative leviathan clashes with the constitutional allocation of power among the elected and accountable branches of government at the expense of individual liberty,” Bradley wrote.  “Although this case does not involve a challenge to the constitutionality of legislative delegations of power to administrative agencies, I encourage the court to be mindful of the structural separation of powers and the safeguards it employs to preserve the rule of law.”

She went on to write that the United States and Wisconsin constitutions allow for three branches of government, not four. 

“The philosophical roots of rule by bureaucratic overlords are antithetical to the Founders’ vision of our constitutional Republic, in which supreme power is held by the people through their elected representatives,” Bradley wrote. “Transferring to administrative agencies the core legislative duty of making laws abnegates powers the people gave their elected representatives.”

Benjamin Yount reports on Illinois and Wisconsin statewide issues for The Center Square. Reposted with permission.