The Unions Tried to Kill School Choice in the Fine Print. The Judge Called It Settled Law.
In February, Wisconsin’s teachers’ unions and their allies filed a 97-page lawsuit that, on its face, was about how the state funds public schools. Buried inside was something else: an argument that the roughly $700 million Wisconsin spends on private-school vouchers is unconstitutional.
When voucher families and their lawyers moved to defend the programs, the unions changed their story and swore the case had nothing to do with vouchers at all.
On June 17, an Eau Claire judge took them at their word — and in doing so put on the record that school choice in Wisconsin is “settled law.” The sneaky attack backfired.
- $700Mvoucherstaxpayer cost of Wisconsin's four school-choice programs in 2025-26 — Wisconsin Watch / DPI
- 60,000studentsenrolled across the Milwaukee, Racine, statewide, and Special Needs choice programs
- 1990yearMilwaukee launched the nation's first modern voucher program — repeatedly upheld since
On February 23, 2026, the progressive law firm Law Forward filed Wisconsin PTA v. Wisconsin State Assembly in Eau Claire County Circuit Court. The named plaintiffs are the Wisconsin PTA and the Wisconsin Public Education Network, joined by a coalition of school districts, teachers’ unions, parents, educators, and students. The stated claim: the Republican-controlled Legislature has failed its constitutional duty to provide a “sound basic education,” and the state’s school-funding formula should be declared unconstitutional.
That much was public and loud. The plaintiffs held press conferences, argued that two decades of declining reading and math scores trace to underfunding, and lined up Democratic lawmakers in support. The suit names the Assembly, the Senate, and the Joint Finance Committee as defendants — a direct constitutional challenge to how the state pays for schools.
The teachers’ unions have wanted this fight for years. In 2023, the Minocqua Brewing Company’s political action committee — bankrolled by liberal brewery owner Kirk Bangstad and cheered on by the Wisconsin Education Association Council (WEAC) — asked the Wisconsin Supreme Court to strike down the voucher programs outright. The Court declined to take the case in December 2023. The frontal assault failed. What came next was quieter.
Read past the funding-formula headline and the vouchers appear. The complaint singles out Wisconsin’s four parental-choice programs — the Milwaukee Parental Choice Program, the Racine Parental Choice Program, the statewide Wisconsin Parental Choice Program, and the Special Needs Scholarship Program — and argues that the money flowing to them is part of what starves public schools.
The specific legal theory is narrow but sharp. The plaintiffs contend that the nearly $700 million the state directed to vouchers in the 2025-26 school year violates a condition set by prior Wisconsin Supreme Court rulings — that the choice programs are permissible only “so long as the State is already meeting its obligations to provide for public schools.” If a court agreed the state was failing public schools, the argument runs, the voucher spending would fall with it. WEAC has made no secret of the goal: the union says vouchers “don’t outperform” public schools and siphon more than $500 million a year from local districts.
Public dollars belong in public schools. I have consistently opposed expanding private-school vouchers, and I vetoed the bill that would have opted Wisconsin into a new federal voucher tax credit.
The politics were friendly to the effort. Gov. Tony Evers (D), a former state superintendent who has built his career on public-education spending, vetoed a Republican bill in March 2026 that would have opted Wisconsin into a federal school-choice tax credit, saying public funds should go to public schools. Legislative Democrats formally backed the funding lawsuit in April. The plaintiffs were not litigating from the fringe — they had a governor and a party behind the premise.
The families did not stay quiet. EdChoice Legal Advocates, a national firm that defends school-choice programs in court, moved to enter the case on behalf of two voucher families — Olivia Jimenez and Anthony and Gina Ellis — whose children are, in the filing’s words, “direct and intended beneficiaries” of the Wisconsin and Racine choice programs. Separately, the Wisconsin Institute for Law & Liberty (WILL) and School Choice Wisconsin Action moved to intervene on behalf of taxpayers, parents, and participating private schools.
WILL President and General Counsel Rick Esenberg did not treat the suit as a routine funding dispute. He called it “an assault on democracy, seeking to install rule by judges rather than by the governor and legislature,” and argued the plaintiffs were blaming choice programs and charter schools for their own failures.
“Parental choice has been instrumental in providing better academic outcomes to tens of thousands of Wisconsin families. It has survived legal challenges before and will do so again.”
Rick Esenberg, President & General Counsel, Wisconsin Institute for Law & Liberty · February 2026
This lawsuit would bankrupt the state and end school choice for the families who need it most. WILL exists to defend parents, taxpayers, and students from reckless lawsuits like this — and we are ready to defend Wisconsin's choice programs again.
Here is where the strategy came apart. Confronted with families and lawyers who intended to stand up and defend the vouchers on the record, the plaintiffs reversed field. To keep the choice groups out of the case, they told the court the lawsuit was not really about vouchers at all — that the choice families had no stake worth protecting because the programs were not under attack.
On June 17, 2026, Eau Claire County Circuit Court Judge Sarah Harless issued an oral ruling denying the school-choice groups’ motions to intervene. But she denied them for a reason that handed the choice movement exactly what it wanted: the case, she said, “ultimately is not about school choice, but about public schools and public school funding.” As the Washington Examiner summarized the court’s conclusion, this was “not a lawsuit about the constitutionality of school choice. That is settled law.”
“This is not a lawsuit about the constitutionality of school choice. That is settled law.”
Eau Claire County Circuit Court, June 17, 2026 · as reported by the Washington Examiner
The unions won the intervention motion and lost the war. To keep the voucher families out of the courtroom, they had to disclaim the very attack the complaint was built around — and a judge memorialized that disclaimer in a ruling. Whatever survives of Wisconsin PTA v. Wisconsin State Assembly, it can no longer be a vehicle to knock down the choice programs. The fine-print gambit is now on the record as abandoned.
The teachers' unions tried to sneak an attack on Wisconsin school choice into a funding lawsuit. When voucher families showed up to fight, the unions pretended they weren't attacking vouchers at all — and the judge put it in writing that school choice is settled law. It backfired spectacularly.
The programs the unions tried to unwind are not a pilot project. In 2025-26, taxpayers are spending more than $700 million to help roughly 60,000 students attend private schools across the four choice programs, according to Wisconsin Watch’s analysis of Department of Public Instruction data. Nearly half of all private-school students in the state now attend on a voucher.
29,949 students enrolled at 136 participating private schools, per the Wisconsin Department of Public Instruction.
Voucher amounts: $10,877 per student for grades K-8 and $13,371 for grades 9-12.
Estimated program cost for the year: $336,279,640 — roughly one line item inside the larger $700 million the plaintiffs put in their crosshairs.
The Milwaukee program is the oldest of its kind in the country. It was created in 1990 through the work of Annette “Polly” Williams, a Black Democratic state representative from Milwaukee’s north side who wanted low-income families to have the school options wealthier families already had. Its constitutionality has been litigated and upheld repeatedly — the Wisconsin Supreme Court sustained the original program in Davis v. Grover (1992) and its expansion to religious schools in Jackson v. Benson (1998), and the U.S. Supreme Court declined to disturb that result. That is the “settled law” Judge Harless referred to.
Plaintiffs: Wisconsin PTA, Wisconsin Public Education Network, allied school districts, teachers’ unions, parents, and students — represented by Law Forward. Backed by legislative Democrats and Gov. Tony Evers (D).
Defending choice: EdChoice Legal Advocates (for parents Olivia Jimenez and Anthony & Gina Ellis); the Wisconsin Institute for Law & Liberty and School Choice Wisconsin Action (for taxpayers and private schools).
Moving to dismiss: Assembly Speaker Robin Vos (R), Senate Majority Leader Devin LeMahieu (R), and the Joint Finance Committee, who called the suit “meritless.”
Judge: Sarah Harless, Eau Claire County Circuit Court.
Wisconsin Republicans moved to throw the case out entirely. Speaker Robin Vos (R), Senate Majority Leader Devin LeMahieu (R), and the Joint Finance Committee argued in an April filing that most of the questions the plaintiffs raise were already answered by the Wisconsin Supreme Court in cases like Vincent v. Voight (2000), the decision that defined the state’s “sound basic education” duty in the first place. Their brief called the lawsuit “meritless.”
The broader fight is national. The teachers’ unions have filed parallel suits challenging voucher and choice programs in multiple states, treating Wisconsin — the birthplace of modern school choice — as a proving ground. That is precisely why the outcome stings. The one place the movement most wanted a scalp, it instead produced a judge’s finding that the programs rest on settled constitutional ground.
Wisconsin’s teachers’ unions spent years trying to end school choice for 60,000 families. This time they tried to do it quietly, folded into a funding lawsuit. When the families fought back, the unions blinked — and the record now says, in a judge’s own framing, that school choice in Wisconsin is settled law.
