DPI asks Wisconsin Supreme Court to release literacy funds

NORTHEAST WIS. – Local schools complying with a literacy mandate might wonder what happened to the funds earmarked to reimburse them for curriculum purchases.

The $50 million for Act 20’s literacy program got caught in a political battle in Madison, and the Wisconsin Supreme Court is deciding how to resolve it as it deliberates the Wisconsin State Legislature v Department of Public Instruction case.

In the process, the court could revolutionize the way Wisconsin does budgeting by deciding the Joint Finance Committee’s hijacking of earmarked funds is unlawful. This would likely please the executive branch but not legislators who have used the supplemental fund for political reasons.

Act 20, which pledged to create an Office of Literacy and a Council on Early Literacy Curricula to improve reading achievement, among other new initiatives, should have provided local school districts with reimbursement for curricula, but Gov. Tony Evers’ partial veto prompted a dispute over whether the partial veto was proper and what to do with the literacy funds.

During the oral argument, attorney Charlotte Gibson, who represented Gov. Tony Evers and the Department of Public Instruction, said the funds should be used for their intended purpose, while attorney Ryan Walsh, representing the state legislature, said the funds should be returned to the treasury because of procedural errors.

A roll-call vote needed to be taken for bills containing appropriations, but it wasn’t, Walsh said at one point in the hourlong proceeding. At another point, he acknowledged generally the funds would follow the legislation’s intended purpose.

Gibson asked the high court to order the funds earmarked for literacy education to be released to the Department of Public Instruction so the money could be deployed to improve reading outcomes, including to local schools that purchased literacy curriculum and would like to be reimbursed. The funds are being held in a supplemental fund authorized through Act 19, she said.

Justice Janet Protasiewicz clarified three different statutes, Act 19, Act 20 and Act 100, were involved in launching the literacy program, and she asked, “Is it common to split up programs like this in three different bills?”

In her argument, Gibson said funding is often contained in a separate bill from the bill containing the programs.

Here’s how it happened: Act 19 was the 2023-25 Biennial Budget bill that included a request for early literacy and reading improvement. It included DPI’s request for $10 million in fiscal 2024 and $10 million in fiscal 2025 to improve reading outcomes through two programs, one focused on kindergarten through grade 12 and another focused on early reading transitions from preschool to kindergarten and from kindergarten to first grade.

It also included Evers’ proposal for about $9 million for training for literacy coaches and educators to improve early literacy and reading outcomes and about $805,000 annually to reimburse participating school districts and independent charter schools.

Act 19 referenced 2023 Act 20, which created an Office of Literacy, a statewide literacy coaching program, new reading instruction and curriculum, and student assessments for reading and intervention. Act 20 also stipulated that teacher education programs leading to licensure must include science-based reading instruction and not instruction based on 3-cueing, or a model based primarily on visual cues or memory.

Act 20 was enacted on July 19, 2023, a couple of weeks after Evers signed 2023 Act 19 into law on July 5, 2023. While Act 19 included appropriations earmarked for K-12 school funding with language about a literacy program, Act 20 does not use the words “with appropriations.”

A third statute, 2023 Wisconsin Act 100, which was enacted Feb. 29, 2024, also is involved in the dispute, as it relates to early literacy programs administered by DPI. It includes two separate accounts, but neither was funded through this bill. Notations on Act 100 indicate it was vetoed in part.

This one-page act included zeros for grant amounts to be allocated for early literacy initiatives and for financial assistance paid to school boards and charter schools for compliance with Act 20. However, these were vetoed.

Whether this partial veto is proper is at the heart of the dispute before the high court.

Justice Rebecca Dallet asked a couple of questions to fully understand why the dispute was before the court. “Is there any enforcement mechanism if the JCF (Joint Committee on Finance) didn’t give the money?” she asked Gibson.

Gibson replied, “There’s no judicial remedy where a school district could come in and say, ‘Hey, we’re not being reimbursed for this curriculum we purchased.’”
Justice Jill Karofsky interjected and said, “That’s why we’re here, isn’t it? I’m not trying to be too cute about this, but that is the answer, I think, to Justice Dallet’s question. The judicial remedy is the one you sought, and it brought you here today.”

Gibson replied, “Correct, we’re here to fix the problem. Instead of crediting those funds to DPI directly, the legislature credited them to a JCF emergency appropriation along with hundreds of millions of other dollars of funds set aside for specific agencies.”

But Walsh contended redress, or a corrective action, wasn’t necessary because the governor erred in his partial veto of Act 100, as it doesn’t include appropriations. “Bills that spend money are subject to partial veto. Bills that don’t spend money are not,” he said.

Walsh said the acts Evers vetoed weren’t appropriations bills because they didn’t include the words, “with appropriations.” The literacy education act was passed by a voice vote, Walsh said. It was properly enacted as an act stipulating literacy education but not as an appropriations bill, he said.

It wasn’t subject to the partial veto, so the act should stand without the funding, he contended. The $50 million should go back to the treasury, Walsh said.

Chief Justice Annette Ziegler took a more generous interpretation of what she thinks Wisconsin’s lawmakers strived to accomplish when they passed the statutes. “As practical matter, this is the law they passed for two programs. The governor made it one program. They thought it changed their ability to fund it and his ability to use partial veto for a non-appropriated act, was wrong.”

Both parties of the legislature participated. “Why wouldn’t it fund what it passed and what it intended to fund?” she asked Walsh. Walsh said that’s how it has worked for years.

The high court is deciding the case for a reason, Justice Ann Walsh Bradley said. “Some want us to take a look at this structure allowing JFC to have this discretion and that not to address it would be a rather name opinion.”

Walsh said the high court didn’t need to decide whether JCF’s supplemental funding account is legal, as the finance committee has operated with a supplemental account for years. “You would revolutionize how budgeting is done in Wisconsin by unnecessarily addressing it,” he said.

In her 10-minute rebuttal, Gibson disagreed. “It’s easy enough to put money the legislature wants for particular programs into appropriate spending authorities’ appropriations in each agency’s budget. This has skyrocketed in the last two budgets. They don’t need to do it this way, and it needs to stop,” she said.

Gibson said the $50 million was critical to DPI “because the literacy program we’re so excited about is expensive, with curriculum, trainers and leadership.”

She said the practice of holding up funds was illegal. “What we’re asking for is to stop this illegal practice that JCF is doing and to confirm the governor’s veto was proper,” Gibson said.