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Scott Walker Tony Evers mashup

Gov. Scott Walker and State Superintendent Tony Evers are at odds over who should represent Evers in a legal case.

Wisconsin's Supreme Court has denied Gov. Scott Walker oversight over the state superintendent in a 4-3 decision, representing a split in the high court's conservative wing.

The decision ultimately overturns a provision in a law signed by Walker in 2011 that would have allowed him to veto administrative rules developed by the state superintendent. That elected position serves as head of the Department of Public Instruction, the agency charged with implementing and developing policy for the state's public schools, including curriculum, academic standards and testing.

A state appeals court ruled that provision unconstitutional in February, upholding the decision of a Dane County judge in 2012. 

Three conservatives — Chief Justice Patience Roggensack and Justices Rebecca Bradley and Annette Ziegler dissented. 

The opinion was authored by Justice Michael Gableman. Fellow conservative Justice David Prosser concurred in a separate writing and the two women of the court's liberal wing, Justices Shirley Abrahamson and Ann Walsh Bradley concurred in another separate writing. 

Here's a breakdown of what happened and what it means. 

What was the court's rationale for striking down Walker's law?

The court ruled that Walker's 2011 law (Act 21) violated the state constitution because it gave Walker the final authority over the administrative rules the superintendent of public instruction developed, with no recourse for the agency if it got pushback on rules from the governor's administration. 

Here's what Gableman wrote:

"Because Act 21 does not provide a way for the SPI and DPI to proceed with rulemaking if the Governor or Secretary of Administration withholds approval, Act 21 gives the Governor and the Secretary of Administration the power to 'manage, direct, or oversee' the primary means by which the SPI and DPI are required to carry out their supervisory duties.

"Thus, Act 21 unconstitutionally vests the supervision of public instruction in officers who are not officers of supervision of public instruction in violation of Article X, § 1. Consequently, Act 21 is void as applied to the SPI and his subordinates."

What does Walker say about the Supreme Court's decision?

In a statement through his spokesman Tuesday, Walker said:

"We will continue to advocate for policies that prioritize student success. Beginning with the Act 10 reforms in 2011, Governor Walker is dedicated to challenging the status quo when it impedes the ability of parents, school boards, and students to get the best educational outcomes."

Is Walker in favor of pursuing a constitutional amendment to change the superintendent’s authority? Is that something he will push?

"Governor Walker has a good working relationship with (current state superintendent) Dr. (Tony) Evers. That’s not on our radar," said Walker spokesman Tom Evenson.

What's the history of DPI and the Walker administration's relationship?

In terms of policy, Evers has opposed much of what Walker and Republican lawmakers have tried to do for schools statewide. They are at odds on expansion of the voucher system, as Evers has opposed efforts to further expand it. He rallied against more than 20 educational policy measures in the last budget, asking Walker to veto them

Last year, Evers said there was an "ongoing assault" on public education in the state, according to the Wisconsin State Journal.

What does the state superintendent do? 

The superintendent is the state's chief schools officer and head of the Department of Public Instruction. Evers has been in the position since 2009 and he guides the state's agenda for education policy. Only 13 other states elect their state superintendents. 

What does the state Constitution say about the state superintendent?

The state Constitution states the the state superintendent will be chosen by voters, just like the state Supreme Court, and shall hold office for four year terms. 

"The supervision of public instruction shall be vested in a state superintendent and such other officers as the legislature shall direct; and their qualifications, powers, duties and compensation shall be prescribed by law. The state superintendent shall be chosen by the qualified electors of the state at the same time and in the same manner as members of the supreme court, and shall hold office for 4 years from the succeeding first Monday in July. The term of office, time and manner of electing or appointing all other officers of supervision of public instruction shall be fixed by law."

What would have to be done to change the Constitution?

The Legislature would have to pass a bill outlining the constitutional change twice. The measure would then have to be ratified by voters in a statewide referendum.

Last year, Rep. Joe Sanfelippo, R-West Allis, authored a bill proposing a constitutional amendment to make the state superintendent a position appointed by the governor rather than elected by voters.

Under current law, the head of the Department of Public Instruction is elected by voters to a four-year term. Tony Evers has held the position since 2009.

Which advocacy groups argued in opposition to Walker's oversight of the superintendent?

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The Wisconsin Education Association, Wisconsin Association of School Boards and School Administrators Alliance.

Which groups argued in support?

Wisconsin Institute for Law & Liberty, based in Milwaukee, argued on behalf of Wisconsin Manufacturers & Commerce, Metropolitan Milwaukee Association of Commerce, School Choice of Wisconsin. 

Have there been other attempts to realign authority at the Department of Public Instruction? 

Yes. Former Gov. Tommy Thompson tried a maneuver to gain oversight powers of the state superintendent in 1996. He was also denied by the state's high court. In Thompson v. Benson, the court said  that Thompson's attempt in the 1995 budget bill to create an alternate education agency and subordinate chief to supplant the authority of Department of Public Instruction and state superintendent was unconstitutional.

Thompson wanted to create a state Education Commission, a state Department of Education and state secretary of education appointed by the governor to run the agency. The superintendent of Public Instruction would have been made the chair and a member of the new Education Commission, which would not have had power to remove Thompson's secretary of education.

The Wisconsin Courts System website characterized it as a "famous case" and said that it illustrates the authority of the Constitution by the restrictions it places on consolidating power in one branch of government, along with showing how the checks and balances should work in a three-branch system of government. 

"Here, the Wisconsin Supreme Court stopped an attempt to take powers away from the elected state superintendent of schools and give them to gubernatorial appointees. In an opinion authored by Chief Justice Roland B. Day, the Supreme Court voided the education provisions of 1995 Wis. Act 27." 

In a concurring opinion,  Justice Jon Wilcox, considered a member of the conservative wing, argued that the Supreme Court's decision at that time   "reduced the Legislature’s flexibility to administer future changes to Wisconsin’s educational system."

Why change oversight at Department of Public Instruction?

Proponents of gubernatorial oversight and appointment say the move would make for a more cohesive state government and allow the legislature to more easily pass school reforms bills. 

Does the ruling provide a legal avenue for the Legislature to potentially have more say in education policy?

It appears so. In his opinion, Gableman essentially lays out a road map, noting that the Legislature could pass a law changing the duties of the Superintendent to exclude rulemaking:

"The Legislature may give, may not give, and may take away the powers and duties of the SPI and the other officers of supervision of public instruction. This statement assumes that the Legislature continues to require the SPI and DPI to promulgate rules. If the Legislature does not believe the SPI should engage in rulemaking, it is free to change the statutory scheme so that the SPI and DPI can carry out the duties with which they are tasked through other means and are not required to promulgate rules. Moreover, it could change the duties with which they are tasked, or it could provide all of the definitions, standards, requirements, thresholds, and terms or conditions of any licenses issued by the SPI and DPI by statute."

Prosser similarly noted in his writing: "...the governor has the power to affect the superintendent's budget and to propose eliminating or transferring part of the superintendent's statutory authority."

Katelyn Ferral is The Cap Times' public affairs and investigative reporter. She joined the paper in 2015 and previously covered the energy industry for the Pittsburgh Tribune Review. She's also covered state politics and government in North Carolina.