Wisconsin Supreme Court Considers Case Questioning the Constitutionality of School Choice

Ending America’s oldest school-choice program may force tens of thousands back to public schools that don’t have capability to taken them all in.

The Wisconsin Supreme Court. Joseph Hanneman/The Epoch Times

In more than six years of serving as president of Catholic Memorial High School (CMHS) in Waukesha, Wisconsin, Donna Bembenek is proud of the fact that she’s never had a student in the Wisconsin Parental Choice Program willingly leave her private school to go to a Wisconsin public school.

But some students at her school and across the state soon may be forced to return to public schools because of a lawsuit challenging the state’s school-choice program.

The Wisconsin Supreme Court is considering whether to hear the case.

A lawsuit has been filed that alleges that Wisconsin’s school-choice program is unconstitutional because of its effects on school funding.

The plaintiffs have argued that their case is so urgent that it should go straight to the state supreme court, rather than follow the normal course of passing through the lower courts.

Funding the lawsuit is Minocqua Brewing Company Super PAC, a politically left-wing beer company.

The plaintiffs say school choice hurts the state’s public schools.

If the lawsuit shuts down school choice in Wisconsin, 105 of Ms. Bembenek’s 580 students likely will have to return to public schools, she said. That has left parents “devastated and terrified,” she said.

In 1989, Wisconsin created America’s first taxpayer-funded voucher-based school system that allows families to send their children to charter schools or private schools. Eligibility for participation in the Wisconsin Parental Choice Program eligibility is based on income.

A family of three making up to $50,666 can participate, according to the state website. For every additional family member, the maximum income allowed rises by $10,384.

According to the lawsuit, wrinkles in how the funding system works hurt public schools.

Donna Bembenek, the president of Catholic Memorial High School in Waukesha, Wis. Courtesy of Catholic Memorial High School

“The legislature intended to use [charter schools] to destroy Wisconsin’s traditional public school system and privatize everything,” the plaintiffs’ attorney, Frederick Melms, told The Epoch Times.

If the legal challenge brings an end to Wisconsin’s school-choice program, it will force tens of thousands of children to move back to public schools.

School choice generally works like this: If parents don’t like their children’s public school options, they can choose to move them to charter schools or private schools.

When students move, the government funding set aside to pay for their education moves with them. In school-choice circles, that’s known as having the money follow the child. It’s a specific dollar amount per student per school year, and it varies depending on the jurisdiction.

Charter schools operate independently from the public school system, but are publicly funded and free to attend.

Parents also can take advantage of so-called vouchers, allowing them to move their children to private schools, and have the tuition paid by the state.

And that’s the heart of the lawsuit in Wisconsin.

“This case is important because, over the last 30 years, Wisconsin has built this program with the voucher schools and the independent charters in an unconstitutional manner and a destructive manner as well,” Mr. Melms said.

Defendants named in the case are Wisconsin House Speaker Rep. Robin Vos (R), Wisconsin Superintendent of Public Instruction Jill Underly, and Wisconsin Department of Administration Secretary Kathy Blumenfeld.

Florida Gov. Ron DeSantis at the signing of the state's universal school-choice bill at Christopher Columbus High School in Miami on March 27, 2023. Courtesy of the Florida Governor's Office.

The Epoch Times reached out for comment to the defendants and to the state attorney general’s office. None responded.

In the case of Ms. Underly, The Epoch Times was directed to a statement published online by the Wisconsin Department of Public Instruction.

In it, Ms. Underly wrote: “Education represents an incredible opportunity to learn, grow, and strengthen our state, but public education represents even more than that. Public education is a constitutional right.”

She added that she supports “effectively, equitably, and robustly [funding] our public education system.”

For the state supreme court to hear the case would be “entirely inappropriate,” Rick Esenberg, president and general counsel of the Wisconsin Institue for Law and Liberty (WILL), wrote in an online statement. The organization asserted that view in an amicus brief submitted to the court.

“On behalf of our clients and about 65,000 students who benefit from Wisconsin’s choice programs, WILL stands ready to defend the rule of law and the educational freedoms afforded to students and families alike,” Mr. Esenberg wrote.

The Epoch Times contacted Mr. Esenberg and WILL for comment but did not receive a response.

Lawsuit Accusations

For every student who leaves for charter schools or private schools, the Wisconsin state government takes a disproportionate amount of funding away from local public schools, Mr. Melms said.

The result is “destructive,” he said, and has put Wisconsin schools in a “death spiral.”

The lawsuit alleges that the Racine Unified School District (RUSD) loses $8,593.75 in state aid for each student who leaves to attend another school using a voucher.

Yet schools receive only $7,764.97 for each public school student they enroll, according to the lawsuit.

The more public schools are underfunded, the more students will leave, creating a vicious cycle, the lawsuit alleges.

His lawsuit describes the Wisconsin school-choice system as “unconscionable,” “a Trojan horse,” and “a cancer on Wisconsin’s public schools.”

Wisconsin law creates a “revenue limit” that further hurts public schools, the lawsuit alleges.

The limit, according to the lawsuit, caps “the amount of funds local school districts can raise from property taxes to pay for their own local public education.”

Such a system infringes on local control of schools, Mr. Melms said.

“The school is not able to determine its own funding.”

Nebraska Gov. Jim Pillen poses with children holding up signs promoting school choice at the state's capitol building on May 30, 2023. Courtesy of the Nebraska Office of the Governor

The plaintiffs filed the lawsuit after the Wisconsin Supreme Court added Judge Janet Protasiewicz, a Democrat.

Judge Protasiewicz’s presence on the court swings its balance to four Democrats and three Republicans.

The Democratic Party platform opposes school vouchers. The party traditionally has been heavily supported by teachers’ unions, who oppose school choice vehemently.

The Republican Party traditionally has supported school choice.

An Opposing Perspective

The lawsuit against school choice is wrong in many ways, starting with the aim to start in the state’s supreme court, WILL attorneys argue in their amicus brief.

“The petition is replete with basic errors,” the WILL brief reads. “Petitioners’ claims, if they are to be heard, should first be heard in the circuit court, which is designed to sort through such allegations.”

The lawsuit presents the idea of revenue limits incorrectly, the brief alleges. Under state law, schools can increase taxes to increase revenue by holding a voter referendum, WILL attorneys wrote.

And the lawsuit gets key figures on school financing wrong, they wrote.

Their brief alleges that RUSD loses $7,526.04 for each student who leaves a public school to attend a charter school, but receives $12,377.55 for each public school student enrolled.

“Therefore, RUSD receives far more in state aid for each public-school student than RUSD loses in aid when a student transfers to a choice school,” WILL’s brief alleges.

Moreover, accounting for inflation, public school funding has increased since school choice began in Wisconsin, the WILL brief argues.

“Petitioners may desire to simplify the facts, but they cite wrong numbers and, as a result, even on their novel legal theories, come to wrong conclusions,” the WILL brief alleges.

Destiny Charter Middle School students participate in a rally to support charter schools in Olympia, Washington, on May 17, 2018. Ted S. Warren/AP Photo

Although public schools receive less funding when students leave them for charter or private schools, the schools also no longer have to educate those students, WILL’s brief points out.

And shifting money to charter or private schools doesn’t take education dollars out of the district, the WILL brief argues. Instead, the money serves its intended purpose by educating children in the district.

“In some instances, [public schools] may be left with more revenue per pupil than if these students remained,” WILL attorneys argue.

If the lawsuit successfully ends school choice in Wisconsin, that would return more than 65,000 primarily low-income students to a public school system lacking the resources to educate them, a research report on WILL’s website asserts.

Public schools would be inundated with students.

Milwaukee’s public schools, for example, would likely have to add 17,522 new school seats, 17 new buildings, and 2,398 new teachers, according to the WILL report.

The report warns, “An end to school choice in Wisconsin would not be as simple as flipping a switch and returning the state to a pre-1990 world where only the wealthy could choose their preferred school.”

In the case of families who chose to move their children to CMHS, they had very specific reasons, Ms. Bembenek said.

Her school has smaller class sizes, higher test scores, and its students collectively earn up to $2o million in college scholarships yearly, she said.

The school, she said, also offers abundant extracurricular activities, better curricula, a focus on teaching moral values, and is safer.

“Many of the families who come to Catholic Memorial would not be able to afford to attend without the support” of the state’s voucher system that pays their tuition, she said.

Since hearing about the court case that seeks to have school choice ruled unconstitutional, parents have bombarded CMHS with concerns, Ms. Bembenek said.

Parents tell her they’re worried their children could lose the education that gives them a chance at a better life, she added.

“We’ve gotten letter after letter from families about how impactful their ability to choose Catholic Memorial is,” she said.

“Many of them came from public schools that were not performing for their children, and they’re terrified that they’re going to be forced back into a situation for their children that didn’t work.”