Article
43 Mitchell Hamline L. Rev. Sua Sponte 9 (2017)

Public Stand-Off: The Wisconsin State Legislature v. Milwaukee Public Schools and Takings of Public Property by Public Entities

By
Corey R. Hoze

A virtual stand-off is occurring in the halls of vacant buildings of the Milwaukee Public School system (MPS). On one side stands the Wisconsin State Legislature and its leadership; on the other side stands MPS, its board of directors, and the Milwaukee Common Council. At stake is the education of thousands of Milwaukee children. Anxious observers include the governor, business groups, and teachers’ unions. Everyone wonders how the stand-off will end.

Prior to 2011, although the City of Milwaukee owned all MPS properties, it “could not sell or lease any empty [MPS] building without approval from the Milwaukee Board of School Directors.” After a December 2010 article in the Milwaukee Journal Sentinel reported that MPS was blocking several high-performing charter and voucher schools from purchasing its vacant buildings, “the state legislature passed 2011 Act 17 which [allowed] the Milwaukee Common Council to sell unused or underutilized buildings without MPS approval.”

According to a 2015 report released by the Wisconsin Institute of Law and Liberty, at least seventeen MPS buildings were still vacant in January 2015, costing taxpayers over $1.6 million to maintain over the previous three years. Despite interest from several high- performing private and public charter schools, MPS has allowed its unused buildings to sit empty for an average of seven years.

Several schools with national reputations for successfully educating children in the Milwaukee area have expressed interest in purchasing MPS’s unused buildings, only to see their applications or letters of intent rejected without explanation. In one instance, MPS turned down offers to purchase a vacant facility made by several private schools, stating it would instead enter into an agreement with a developer to turn the school into a residential and community center. At the time, critics accused MPS of quickly conceiving the idea to prevent a competing private school from expanding. The community center never came to fruition, but MPS still had to pay over $500,000 to the developer.

Often, one of the most significant obstacles for expanding schools is finding affordable facilities that meet their needs. In June 2016, the Walton Family Foundation announced that it had committed $250 million for the sole purpose of assisting urban charter schools in gaining access to facilities. In its statement announcing the commitment, the Foundation said that finding suitable spaces for charter schools “is the biggest barrier to creating high-quality educational options for children and families.”

To most observers, the state of affairs for education in Milwaukee is disturbing, particularly for African American students. While 98% of school districts in the state of Wisconsin met or exceeded expectations according to the latest performance data released by the Wisconsin Department of Public Instruction, MPS was the only district that failed to meet expectations. Only thirty schools in MPS met or exceeded expectations, which meant over two-thirds of MPS students attended substandard schools. Although the graduation rate for white students in Wisconsin has risen as high as 93% in recent years, the overall graduation rate for African American students in Wisconsin has hovered around 61%.In fact, Wisconsin has the worst education gap in the country, with African American students far behind the achievement levels of their white classmates.

Under Wisconsin law, “[p]ublic education is a fundamental responsibility of the state,” and the impact of MPS’s poor performance is felt far beyond the city limits of Milwaukee. According to the MacIver Institute, in 2011, high school dropouts burdened Wisconsin taxpayers with an estimated $503 million in additional incarceration, Medicaid, and lost income tax costs— approximately $170 million in incarceration costs, $150 million in increased Medicaid costs, and $183 million in lost income tax. MPS is the state’s largest school district, and over half of MPS’s budget is funded by the state.

In 2015, the Wisconsin legislature passed another law addressing MPS’s unused buildings, which forced Milwaukee to sell unused and underutilized school buildings to public charter schools and private schools. Despite the new law, MPS leadership and the Milwaukee Common Council resisted and delayed placing these properties on the market, arguing that there was a lack of community input and due process in passing the new law.