Appeals court: Portion of law giving Walker power to block education rules is unconstitutional

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MADISON, Wisconsin — A portion of a Republican-written law that gives the governor the power to block new education rules is unconstitutional, a state appeals court ruled Thursday.

The law essentially gives the governor veto authority over anything the elected state schools superintendent proposes, interfering with the superintendent's constitutional powers to supervise public education, the 4th District Court of Appeals said in a unanimous decision.

"In our view, rulemaking is one tool the (superintendent) uses to actively promote uniformity and put educational plans into action," wrote appellate Judge Gary Sherman, a former Democratic legislator. "(The law) gives the governor the power to decide that there will be no rule or rule change on a particular subject, irrespective of the judgment of the (superintendent)."

The state Department of Justice, which is defending the law, said it was considering asking the state Supreme Court to take the case. The high court is controlled by a majority of conservative-leaning justices.

Department of Public Instruction spokesman John Johnson said in an email to The Associated Press that the ruling validates that the state superintendent is a constitutional officer responsible for leading Wisconsin's schools.

The case centers on a law Republican Gov. Scott Walker signed in 2011 that requires state agencies to get gubernatorial approval before drafting new administrative rules, legal language that enacts statutes and agency policies.

Opponents criticized the law as a blatant power grab. A group of parents and teachers, including Mary Bell, then president of the Wisconsin Education Council, the state's teachers union, filed a lawsuit alleging the law was unconstitutional as applied to the state Department of Public Instruction. They argued the law gives other state officers more power than the elected DPI superintendent.

Dane County Circuit Judge Amy Smith ruled for the plaintiffs in 2012, saying the law gives the governor more power over schools than the superintendent. The ruling restored Superintendent Tony Evers' ability to design policies affecting topics from teacher licensing requirements to voucher schools without going through Walker's office.

DOJ attorneys raised several arguments on appeal, including that the teachers and parents lacked standing. They also said the law doesn't give anyone else supervisory powers over state schools, arguing the superintendent remains the only officer who can determine the content and scope of an education rule.

The appellate court rejected all those contentions. It said the plaintiffs have standing because they're taxpayers. The argument that the governor has no power to fashion an education rule "is a premise that ignores reality" because the law gives the governor veto powers over proposed rules, enabling him to shape regulations to his liking, the court said.

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