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During tonight’s debate between Wisconsin Supreme Court candidates Judge Annette Ziegler and Attorney Linda Clifford, one of the panelists, I believe it was Greg Borkowski of the Journal Sentinel, asked which areas of the law the candidates needed clarification or enjoyed studying. During her answer, Linda Clifford said one area she believed of interest was “the First Amendment, for instance the financing of public schools in Wisconsin and school choice and vouchers.” As soon as the debate is up on Channel 1111 of Time Warner Cable I will get the exact question and quote.

This answer should deeply trouble Wisconsin voters in two very distinct respects.

School Choice

In Jackson v. Benson (1998), the Wisconsin Supreme Court held that the Milwaukee School Choice Program was constitutional on a variety of levels. From Justice Steinmetz’s Majority Opinion:

(1) Does the amended Milwaukee Parental Choice Program (amended MPCP) violate the Establishment Clause of the First Amendment to the United [***5] States Constitution? Neither the court of appeals nor the circuit court reached this issue. We conclude that it does not.

(2) Does the amended MPCP violate the religious establishment provisions of Wisconsin Constitution art. I, § 18? In a divided opinion, the court of appeals held that it does. We conclude that it does not.

(3) Is the amended MPCP a private or local bill enacted in violation of the procedural requirements mandated by Wis. Const. art. IV, § 18? The court of appeals did not reach this question, and the circuit court held it is. We conclude that it is not.

(4) Does the amended MPCP violate the uniformity provision of Wis. Const. art. X, § 3? The court of appeals did not reach this issue, and the circuit court [*845] concluded that the amended MPCP does not violate the uniformity clause. We also conclude that it does not.

(5) Does the amended MPCP violate Wisconsin’s public purpose doctrine, which requires that public funds be spent only for public purposes? The court of appeals did not reach this issue, and the circuit court concluded that the amended MPCP does violate the public purpose doctrine. We conclude that it does not.

(6) Should children who were eligible for the amended MPCP when this court’s injunction issued on August 25, 1995, and who subsequently enrolled in private schools, be eligible for the program if the injunction is lifted? Neither court below addressed this issue. We conclude that they should.

If the case came up again, and one can imagine ways it could arise, with Linda Clifford on the Court, it is possible that Jackson could get reversed - on any one of the six questions Steinmetz presented - and the School Choice program could be ruled unconstitutional under the Wisconsin Constitution (thus rendering what the US Supreme Court in Zelman meaningless).

A Judge Imposed School Tax
Don’t think it is such a crazy idea. Judicial taxation is legal under the US Supreme Court’s decision in Missouri v. Jenkins, and it happens in the education context. According to a 2003 book review by a Dartmoth professor, “Since 1971, at least seventeen state supreme courts have found that their states’ school-funding systems are constitutionally deficient. (The “at least” is required because a few decisions are not easily classified.) These decisions have been a major, if not the major, source of change in school funding in the United States in the last three decades. In almost all of the court cases in which the plaintiff has prevailed, the state legislature has responded by reducing per-pupil expenditure differences among districts, increasing legislative control over funding, and reducing overall reliance on local property taxes, which were once the mainstay of American school finance. Centralization and equalization are the hallmarks of this movement.”

One Kansas judge issued a ruling saying that state’s school funding system was too low by $1 billion, a decision later mostly upheld by that state’s Supreme Court. As Phyllis Schalfly points out in a 2004 column:

Yet, many schools claim they are broke and, unwilling to streamline their bloated bureaucracy, they demand tax increases or bond initiatives to jack up the money flow. When taxpayers resist these raids on their pocketbooks, public schools look for easier ways to raise more money.

Where can free-spending liberals go? They run to lawyers and activist judges to get more money to spend, even though policy and spending decisions and especially tax increases should originate with the legislature. …

On August 25, the Spokane Public School Board voted unanimously to demand court-ordered funding increases by joining a planned lawsuit with many other Washington State school districts. …

In New York State, 17 school districts have expressed interest in joining the lawsuit of the Utica City School District, filed on July 23, to demand that a judge order increased funding. A Utica official said that, without additional funding, 190 jobs would be eliminated….

The judicial supremacists in Massachusetts continue to try to run the public school system. On April 26 this year, a Massachusetts superior court judge issued a 300-page advisory ruling to dictate the future of education and said that the court would retain jurisdiction to make sure its orders are obeyed.

On May 11 this year, a state district judge ordered Kansas to close all its public schools until the state obeys the court’s demand to change the way the taxpayers’ money is spent on education. This ruling is now on appeal….

In 2001, Idaho superior court Judge Deborah Bail had held that the funding for public schools was inadequate and unconstitutional. Liberal state legislators then passed an unusual statute authorizing judges to raise taxes for schools, an innovative device to enable the legislators to avoid the political consequences of voting to raise taxes. …

If an activist judge is one with an agenda, then I fear a Justice Clifford is out to overturn our state’s education funding system, perhaps demanding a tax increase, and even threatening school choice.

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