Ruth Conniff, Wisconsin Examiner
October 16, 2023
A lawsuit filed last week with the Wisconsin Supreme Court challenging the constitutionality of taxpayer-funded private schools does not mince words.
Wisconsin’s parental choice programs are “affirmatively designed to undermine Wisconsin’s public education system by robbing it blind, forcing local districts into financial death spirals,” the petition for original action by the Supreme Court states.
By using taxpayer dollars to fund private schools, the state is violating the clause of the state constitution that says public funds must be used for a “public purpose,” the lawsuit argues.
The call-to-arms language has all the earmarks of the lawsuit’s financial backer, the pugnacious progressive founder of the Minoqua Brewing Company, Kirk Bangstad, whose SuperPAC has gone to bat for marriage equality and abortion rights as well as various Democratic candidates. Bangstad is bankrolling the anti-voucher lawsuit, which he calls “the most important legal challenge to Wisconsin’s education financing system in decades.”
His tone marks a sharp contrast with Gov. Tony Evers, the former state schools superintendent who has been viewed by public school advocates as an ally and has fought, with limited success, for increased funding for public schools. Evers has avoided direct criticism of Wisconisn’s more than 30-year-old school voucher experiment, striking a deal with Republicans and the state’s powerful school privatization lobby this year that resulted in the largest increase in funding for school vouchers in state history.
Public school advocates were outraged by the deal, especially since public schools are facing yet another austerity budget.
Evers did not appear at the Wisconsin Public Education Network’s annual summit of public school advocates from around the state this summer. State schools superintendent Jill Underly did appear, delivering a conciliatory message. After the voucher lawsuit was filed last week, Underly released a carefully worded statement that did not directly support the suit in which she is named, in her official capacity, as a defendant. But the supportive implications are clear:
“Public education is a constitutional right. It says it right there in Article X, Section 3 of the Wisconsin Constitution. 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,” Underly said in the statement. “I welcome any opportunity to move Wisconsin in that direction.”
Evers’ office declined the Examiner’s request, through a spokesperson, to comment on the suit on Friday.
The Wisconsin Public Education Network released a statement applauding the lawsuit. “Advocates and watchdogs have long been shining a light on the negative impacts of privatization on our students and our communities, and the number one question we hear is: ‘how is this legal?’ “ the group’s executive director, Heather DuBois Bourenane said in a statement. “It’s long past time to hold the state accountable for meeting its constitutional obligation to students attending public schools.”
WPEN board member Julie Underwood, former dean of the University of Wisconsin School of Education, is the lawsuit’s lead plaintiff.
She got involved, she told me Friday, after appearing a couple of times on Bangstad’s radio show to talk about public education issues. While she is a nationally recognized expert on school law, her standing in the case is simply as a taxpayer “because all of these claims hinge on not just the harm to children, but also the misuse of public funds,” she explains. Not only does the lawsuit argue that giving money to private schools — which do not have the same sort of public oversight as public schools — is a violation of the Wisconsin Constitution’s “public purpose” clause, Underwood also points to case law that holds it’s illegal to seize tax money from taxpayers in one school district and use it to support schools outside that district — which Wisconsin’s school choice program also does.
School districts in small towns up north are the hardest hit by having their tax dollars redistributed to pay for private schools elsewhere in the state, Underwood points out, since many are particularly financially fragile.
As for the hot language in the petition, Underwood makes no apology for it.
“I think that it represents the plight of the schools that we’ve seen,” she says. “And to try to get anybody’s attention, being honest about it is important. Because it is a death spiral.”
“I can’t pretend like vouchers aren’t killing the public schools,” Underwood adds.
Milwaukee school board member Bob Peterson, a longtime public school advocate, agrees. “I think it’s great that people are contesting this program that’s been a destructive force against public schools for many years,” he says. “I think it will increase public awareness of what’s really going on and hopefully that will also increase resistance.”
The Milwaukee schools, which serve many more students with disabilities than voucher schools, have been left with fewer resources to meet those students’ needs because of the drain of the voucher program, Peterson says. He points to recent news reports about conservative Christian voucher schools with overtly discriminatory policies against disabled and LGBTQ kids. “I think it’s outrageous that we, the taxpayers, are paying hundreds of millions of dollars to support schools that discriminate against LGBTQ students,” he says.
Nor does Peterson have much patience for the idea that it’s unrealistic to try to get rid of Wisconsin’s first-in-the-nation school voucher system, which by now has become a well established part of the landscape. Or that it makes more sense to try to bring traditional public schools and voucher schools together to fight for a larger state education budget.
“The notion that this system inherently is going to stay forever, you could have said that about all kinds of bad things in our nation’s history,” Peterson says.
“Bottom line: they are an attack on democracy, not only because they are an attack on how public schools are run, with oversight from a democratically elected school board, but also in terms of allowing discrimination, which is antidemocratic.”
Meanwhile, Wisconsin’s choice programs continue to grow. From the 341 students in Milwaukee who first received private school vouchers in 1990, they have expanded to 52,000 students now attending publicly funded private schools throughout the state. Most of those kids are in religious schools.
Under the deal struck by Evers and Republican legislators for the current state budget, K-8 voucher school payments will go up from $8,400 per student to $9,500 per student. Funding for private choice high schools will go from $9,045 to $12,000 per student.
The school choice lobby is so powerful and Wisconsin school voucher programs are so entrenched — despite three decades of test results that show they have not done a better job than public schools in boosting Wisconsin children’s academic achievement — it seems daunting to take them on directly. But there is something cheering about the brave group of outsiders who went to the Wisconsin Supreme Court last week with their anti-voucher lawsuit.
If something doesn’t shift now, we won’t have much of a public school system left.
“In three years, all the caps will be off. And at that point the large sucking sound of money is gonna just drain the public school system,” says Underwood. “And we’re going to be left with incredibly underresourced schools, because they are very underresourced now.”