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The following program is a PBS Wisconsin original production.

Frederica Freyberg:

Milwaukee’s Common Council passes a 2% sales tax but not without protest.

I’m Frederica Freyberg. Tonight on “Here & Now,” we hear from Milwaukee’s mayor as well as a Common Council alder on the begrudging passage of the sales tax. A law expert explains a recent ruling that flips the script on Wisconsin’s 1849 abortion ban, and a school district tried to ban a trans student from using the girls bathroom. A federal judge said they’re violating her right. It’s “Here & Now” for July 14.

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Funding for “Here & Now” is provided by the Focus Funds for Journalism and Friends of PBS Wisconsin.

Robert Bauman:

And as we’ve all been briefed by the budget office in great detail, the wolf is at the door. We can’t chase the wolf away anymore and we are dealing with some serious challenges which have to be addressed. We did get a solution. The state legislature did enable us to adopt a local option sales tax of 2%, which raises real revenue. I mean, we’re talking $193 billion a year plus and presumably that will grow as the economy grows in years going forward.

Frederica Freyberg:

City of Milwaukee leaders are breathing a sigh of relief after the Common Council there this week voted in favor of an additional 2% sales tax to stave off deep service cuts and layoffs due to mounting pension debt, but as part of the negotiated shared revenue to local government package in the state budget, the Milwaukee sales tax came with policy provisions that deeply divide the city. Things like returning police officers to the city schools, eliminating funding for diversity programs, and requiring minimum police and fire staffing. Milwaukee Mayor Cavalier Johnson said in taking this action, the council has protected Milwaukee and its residents from unimaginable cuts to library and public safety services. Mayor Johnson joins us now. Thanks very much for doing so.

Cavalier Johnson:

Thank you, Frederica.

Frederica Freyberg:

How does it feel to have signed this into law today?

Cavalier Johnson:

It feels great. Really, really does. This is a problem four decades in the making. It eluded mayors and city councils and governors and legislatures in years past, but working together in a collaborative, bipartisan way, we were able to get this done and put the city on a stronger financial footing for now and for the foreseeable future. And I feel very gratified to have been able to deliver this for the citizens of Milwaukee, for our daily commuters, for our visitors, and there are several in town for Bastille Days and Harley-Davidson’s 120th anniversary, and some of the most iconic businesses that call the city of Milwaukee home.

Frederica Freyberg:

Do you feel like there’s room for more collaborative work with the legislature after this?

Cavalier Johnson:

I do, I really, really do. On a whole host of things, but particularly on something that the city’s been challenged with, especially as we entered into and are coming out of the COVID years, and that’s gun violence. I now understand that the legislature is what it is. I’ve always been a political realist as it relates to dealing with the legislature. So there won’t be sweeping legislation, but there must be things on the margins that we’re able to work on, because when I get up and I get phone calls and text messages from the Milwaukee Police Department about people being shot and killed in our city, and including our kids, I think that that probably also troubles legislators as well, including Republican legislators too. And I think that there’s something that all of us can do collectively in order to take on that challenge that affects citizens in this city and in this state.

Frederica Freyberg:

On the 2% sales tax, let’s listen to one of the three council members who voted against the sales tax.

Andrea Pratt:

Throughout this process, I have asked that we prioritize those among us who do not earn a family-sustaining wage and are on fixed incomes, contrary to the narrative that has been fashioned, I love Milwaukee. I’d argue that choosing to remain here knowing all of the statistics only compounds that love. I do not want to see us fail. I also do not want to save a city by sacrificing citizens.

Frederica Freyberg:

What is your message to those who say that this new tax, when added to the existing tax and then potentially a new county tax will amount to a 7.9% sales tax in Milwaukee. Is that a legitimate hardship for low-income residents as some people are suggesting?

Cavalier Johnson:

First, Frederica, let me just say that I don’t doubt that any council member, including those council members that voted “no” on this had any less love or desire for the city of Milwaukee than I do or those council members, their colleagues that voted “yes” on this. But what I will say is that the action that the council took was extraordinarily importantly. Those council members who voted “yes” on this took the position to save services that its citizens, including those citizens who live in challenged neighborhoods, those low-income residents in Milwaukee, depend on. It’s districts like those where people call the police the most. It’s districts like those where fire services and medical services provided by our fire department are depended on the most. It’s districts like those where library services are depended on the most. And so the action by the council, particularly those council members who voted “yes” on the 2% sales tax increase, puts us in a position where we’re able to continue to provide those services to all of those residents, who actually need them in neighborhoods across Milwaukee and including in low-income districts across the city.

Frederica Freyberg:

So the council introduced legislation opposing the policy part of this deal with the legislature, including lawsuits to block provisions like eliminating diversity programs, police officers in schools, etc. Do you support litigation over those things?

Cavalier Johnson:

I believe that there are opportunities for us to work together, to still get the city’s values implemented. For us to still work on implementing diversity, equity and inclusion programs in the city of Milwaukee. I think there are workarounds for us to be able to do that and I intend to do just that. I’m supporting efforts to get our intergovernmental relations team to go back to the legislature to start to work towards the repeal of the policy provisions that were there that, quite frankly, I don’t think had any place being in the bill. They didn’t need to be there. I wish that it were simply an up-and-down vote on the city’s finances which, of course, was not an issue that was specifically related only to the city of Milwaukee. Communities across the entire state of Wisconsin had an issue with funding coming back from the state of Wisconsin. So it’s my desire, again, to continue to make sure that we work to deliver diversity, equity and inclusion programs in Milwaukee and I think there are ways for us to go about it even now.

Frederica Freyberg:

What do you say to people who said that you negotiated a bad deal?

Cavalier Johnson:

I say to those people that they’re wrong. They simply are. Look, this was a big, difficult, complex, but ultimately triumph for the city of Milwaukee. And the Republicans in the legislature, they knew that the only way that they’d be able to see the policies that they wanted to implement in Milwaukee on all of these issues come to fruition was to attach it to something that the city needed. And after four decades of stagnation and revenues coming back to Milwaukee and our fiscal cliff inching closer and closer, the opportunity was ripe for them to do that. So, yes, there are negative things that they attached to the bill that I fought against and have a strong aversion to, but we also have to remember that we were also able to get the Republicans to move considerably from their position, more than 20 years, probably 30 years of not adding a tax for the city of Milwaukee. So there’s compromise on both sides. We got something done that was extraordinary for Milwaukee and sets the city up for success in the future.

Frederica Freyberg:

Mayor Cavalier Johnson, thanks very much.

Cavalier Johnson:

Thank you, Frederica.

Frederica Freyberg:

The alder who called this a bad deal nonetheless voted for the 2% sales tax. Milwaukee Alderman Russell Stamper joins us now. Thanks very much for being here.

Russell Stamper, II:

Of course. Thanks for having me.

Frederica Freyberg:

Why did you call this negotiated shared revenue deal a bad deal for Milwaukee?

Russell Stamper, II:

Yes. Well, mainly because of the provisions that comes along with it. There’s no — make no mistake about it, the city of Milwaukee does need money. We have a huge financial gap of approximately about $183 million and projected to be upwards of $190 million by 2025. But what we were expecting or what we would have appreciated was a clean bill. A bill that just allows us to raise the sales tax to 2% and also receive our fair share of shared revenue. However, I don’t know what happened during the negotiations. I don’t know what those guys at the state level are thinking, but they provided or added all these provisions that are going to hurt Milwaukee, particularly the Black and brown community.

Frederica Freyberg:

So ahead of the vote to that, you compared Wisconsin Act 12, the new shared revenue law, as it affects Milwaukee to Jim Crow laws and red lining.

Russell Stamper, II:

Yes.

Frederica Freyberg:

And further called legislators who wrote and supported the bill Milwaukee’s enemies. Why do you think that?

Russell Stamper, II:

Well, it’s clear that they are not trying to help us. They haven’t been for the last three decades. And when they put this bill together, in order for us to receive the money that we need desperately, they took advantage of that and added provisions that will hurt a city that is the worst, top three worst, in the country for African-Americans. So to me, that was a direct hit to not help us progress and also hurts our ability to govern and hurt our ability to help the people that are most in need. So just historically, laws and codes and different methods have been put in place to keep Black people down, to hurt Black people, to not let them progress. And with these provisions in place, when we were making significant progress with many different positions and programs to help the people that need it the most, which are African-Americans and brown people, they decided, hey, you guys can’t do that anymore. No more equity, opportunity, no more equal opportunity. Hey, you guys have to govern based on what we tell you. And here’s the money, here’s what the money has to be used for. So to me, that’s unfair. To me, that does not show a working relationship.

Frederica Freyberg:

You said that Milwaukee needs to take advantage of what you know you have to do. What do you have to do?

Russell Stamper, II:

Well, we have to come together as aldermen, as county supervisors, as executive branches and leadership, we have to come together and find different ways to support our community. It’s going to be a greater effort. We’re going to need people to come together, particularly Black people to unite and come together and work towards improving our community, our conditions more than we ever have. So we’ve done it in the past. We’ve been resilient in the past. That was what I was referring to and we’re going to have to work a little bit harder, put more effort into the community and get people more on board on what the state is trying to do to us so we can overcome and be successful as a city.

Frederica Freyberg:

What do you say to any of your constituents who say that this will hurt them financially?

Russell Stamper, II:

Yeah. So one of the things that we have in place that I will be fighting for, and this goes back to us working together and trying to find alternative ways to help the people, are — we want to put in stipends for low income and on people that are on fixed incomes. So we have something that we enacted in the past and we’re going to look forward to bringing that forward. I think it’s called a UB1

that a previous alderman at the council had put forth and we’re going to look forward to implementing that. It’s a certain amount of stipend or certain amount of families on an annual basis in the city of Milwaukee. But to the families, we’re going to have to provide more opportunities for them. We have to get them more engaged. Call on and hold the business community accountable. They all came and testified in favor of this 2%. Everyone that I spoke with, even the ones that are in favor in the business community, know about the poison pills and the provisions that were put in place. So everybody is in agreement that these policies will hurt our ability to govern and hurt our ability to help Black and brown people, but they also understand that we are in a financial situation where we seriously need some money. So that’s where I’m coming from and we will continue to help people that need it the most.

Frederica Freyberg:

All right. We leave it there, Alderman Russell Stamper. Thanks very much.

Russell Stamper, II:

I appreciate you.

Frederica Freyberg:

A similar decision is also before the Milwaukee County Board of Supervisors where the law allows increasing the existing sales tax.

Turning to education, a federal judge issued a preliminary injunction against the Mukwonago Area School District this week for a policy that states students can only use the bathroom according to each student’s original sex assigned at birth. The catalyst for the policy arose from an 11-year-old trans girl in the district and a sudden backlash from other parents. Marisa Wojcik has the story.

Jane Doe # 2:

I got a phone call from the school letting me know that there was parents inquiring about my child.

Marisa Wojcik:

This is Jane Doe # 2. Her daughter, Jane Doe # 1.

Jane Doe # 2:

Wanting to know if my child was a boy, wanting to know about the genitalia in my child’s pants, like asking questions that are really inappropriate.

Marisa Wojcik:

The court is using pseudonyms to prevent further harassment. Her child is an 11-year-old girl at the Mukwonago Area School District. Her daughter was also assigned male at birth but started identifying and living as a girl at home since the age of three.

Jane Doe # 2:

It’s just who she is and it’s who she’s been since she was really little and she lived as a girl at home and at school tried really hard to just be who everyone was expecting her to be. And she came home from school one day and said, “I can’t do this anymore. I can’t continue to live my life as this boy. It’s not who I am.”

Marisa Wojcik:

Despite years of her daughter using the girls’ bathroom at school, suddenly it was an issue. A May school board meeting took public comment on the matter.

Jane Doe # 2:

And they moved it from the normal area at the district office to the high school gymnasium. They were expecting a lot of people to show up. They called the police department. Parents came in and they were essentially saying I’m not okay with this. You don’t get to do this What about my kids?

Man:

Difference between a boy and a girl.

Woman:

Our daughter’s rights need to be vehemently protected from this pervasive and false ideology that children can pick their gender.

Another Woman:

I’m here to say that the female sex remains in the female bathrooms and locker rooms and the male sex remains in the male bathrooms and locker rooms.

Jane Doe # 2:

My daughter using that bathroom does not violate your daughter’s rights. Nothing about my daughter being in the bathroom, in the building, nothing violates your child’s rights because my child exists.

Man:

Call this meeting to order.

Marisa Wojcik:

A May school board meeting took public comment on the matter. A June school board meeting passed a policy stating students must use the bathroom according to each student’s original sex assigned at birth.

Jane Doe # 2:

I was at the board meeting and listening to all of these and I just cried. I could not believe that this is what they were doing.

Marisa Wojcik:

She sought support from an attorney who has been through this before. In Whitaker v. Kenosha Unified School District, Alexa Milton represented a trans boy who was prevented from using the boys’ bathroom.

Alexa Milton:

We thought it was important to take action to make sure that that precedent was upheld and that our client could exercise those rights that the court has said she has.

Marisa Wojcik:

The district contends the safety and privacy of the other students using the bathroom justifies their policy.

Alexa Milton:

This abstract idea that somebody else’s privacy is being threatened is not enough to justify that. We all use the bathrooms every day in public places where there are other people in the bathroom and that’s your privacy interest that we have isn’t more or less implicated based on the person in the stall next door being transgender. There hasn’t been any threat to the safety or privacy of other students. The threat has been to the safety and privacy of our client.

Marisa Wojcik:

In a brief, the district argues the mother and daughter have not availed themselves of less drastic solutions to effectively address the present situation. They stated Board Policy 5514 requires a team of district staff to consider exceptions or accommodations to this requirement on a case-by-case basis. The alternative to the student having to use the boys’ bathroom was offering a gender-neutral bathroom.

Alexa Milton:

Offering a gender-neutral alternative if you are requiring the trans student to use it or use a bathroom not corresponding to their gender identity doesn’t make the policy non-discriminatory. You’re still requiring something of that transgender student that you aren’t requiring of any other student.

Jane Doe # 2:

You’re endangering my child every time you try to force her into a different bathroom because you’re singling her out. You’re telling everybody she’s different, and that puts a target on her back.

Marisa Wojcik:

The district also said they vehemently refute any discrimination and strongly disagree with the baseless assertion that the policy will cause her irreparably harm.

Alexa Milton:

Our client has been facing increasing bullying and harassment at school since all of this started this spring.

Jane Doe # 2:

She has this constant worry of who is watching me today. Who is going to follow me today. She’s voiced concern about if kids are going to hurt her in the bathroom. She’s concerned about people pulling her out of a restroom or people, you know, pushing her into the restroom she should be using.

Marisa Wojcik:

On July 11, federal Judge Lynn Adelman ruled in favor of the student and granted an injunction against the school policy. The district declined to be interviewed. In a statement, they wrote, the district will continue to defend our policy and move forward with an appeal of this injunction.

Alexa Milton:

I think it’s important to keep in mind that we’re talking about a kid.

Jane Doe # 2:

She’s an amazing kid. She is funny and she’s silly and she likes to draw. She’s inquisitive and she loves science and she’s really involved in STEM things. She likes doing girly things and glitter and sequins and she’s just like every other 11-year-old kid, every other 11-year-old girl out there.

Marisa Wojcik:

Reporting from Mukwonago, I’m Marisa Wojcik for “Here & Now.”

Frederica Freyberg:

In other news, Wisconsin’s 173-year-old abortion ban outlaws killing fetuses but does not apply to consensual medical abortions. That was the ruling of a Dane County judge allowing a lawsuit challenging the ban to proceed. The judge said the legal language in the ban does not use the term “abortion,” so the law only prohibits attacking a woman in an attempt to kill her unborn child. “There is no such thing as an 1849 abortion ban in Wisconsin,” the judge wrote. Here to unpack the legal language and implications, emeritus professor of political science and affiliate faculty member of the UW Law School, Howard Schweber. Thank you for being here.

Howard Schweber:

My pleasure. Thanks for having me.

Frederica Freyberg:

So what was your reaction to the Circuit Court ruling that said there is, “no such thing as an 1849 abortion ban”?

Howard Schweber:

It’s a very sharp point, and one that I think had been largely overlooked. To back up a little bit, there are longstanding statutes and common law principles that say, for example, if there’s a car accident in which a fetus is destroyed, that can be a crime, even if abortion is legal in that particular state. If someone deliberately attacks a pregnant woman, this is the instance that the judge referred to, with the intention of causing a miscarriage, that’s been a crime both under statute and English common law for a long time because it’s an injury to the woman but has nothing to do with the question of voluntary abortion. So while I think that some viewers, it might seem strange to draw this distinction, actually it’s very deeply rooted in American law, English law. It goes back forever that you can have legal claims having to do with the destruction of a fetus without necessarily having a law that has anything to say about voluntary abortions and that’s the distinction the judge drew, and frankly I think she’s quite right. I think in 1849 in particular, when we were much closer to our common law roots in the way we thought about these categories, it would have been unsurprising to make this distinction between a tortious act or a wrongful act that causes a miscarriage versus an abortion. These are just two very distinct and different things.

Frederica Freyberg:

So to non-lawyers, though, it seems surprising because that’s not the argument the Josh Kaul lawsuit is using to overturn the 1849 law, right?

Howard Schweber:

Right. Which is interesting. As I say, it was a sharp point and it took many people by surprise, partly because we are so unused to thinking in 19th Century legal categories. This is one of the problems with appeals to history, whether it’s a Supreme Court justice talking about originalism or someone talking about a 19th Century law. You have to put yourself in the mind frame and the understanding of that period and legal understandings in particular were just very different back then. So Kaul tried to couch this in purely modern terms. Is it too sweeping? Is it too vague? Was the law effectively overruled by the enactment of a later law? I suspect, to be honest, that in his office, it just didn’t occur to anyone to go back to the common law principle underlying the 1849 law and say what was that principle about. If you want an analogy, it is a crime to punch someone in the nose. It is not a crime to punch yourself in the nose. I know that sounds like a silly analogy, but in those kind of basic legal categorical terms, that’s the kind of distinction we’re drawing here.

Frederica Freyberg:

How does the Kaul case go forward in light of this ruling?

Howard Schweber:

Well, in light of — first of all, this ruling will certainly be appealed, so I think at this point, all the actions is on this ruling and the appeal under its law, but the case will go forward and result, assuming the ruling stands, in a declaratory judgment, which is a statement by the court that, look, this is the rule, just so that everybody knows, that doctors, for example, cannot be prosecuted for performing abortions unless those abortions are in violation of the 1980s law. In other words, unless they’re post-viability. And we would effectively in Wisconsin be restored to the framework that was established in the Supreme Court case called Casey, which is one of the — Casey and Roe are the two big abortion cases. Effectively the Wisconsin statute imposed the Casey framework, and unless and until the legislature changes it, that’s where we would be. So one way to think about this is that the Supreme Court in Dobbs overruled Roe, so there’s no national constitutional right to abortion but they said states can establish rights to abortion as they see fit, and the effect of this ruling is that Wisconsin did in the 1980s – in 1985 – is the law in Wisconsin unless and until someone changes it.

Frederica Freyberg:

What does the timeline look like for this case now in Dane County to get to the Supreme Court where Democrats, of course, want it to land after the August 1st investiture of liberal Janet Protasiewicz? What’s the timeline look like?

Howard Schweber:

Well, so there’s the normal timeline and an expedited timeline. Neither one — under neither situation can I imagine this case reaching the Supreme Court before August 1st.

Frederica Freyberg:

Professor Howard Schweber, thanks for joining us.

Howard Schweber:

My pleasure.

Frederica Freyberg:

For more on this and other issues facing Wisconsin, visit our website at PBSwisconsin.org and then click on the news tab. That’s our program for tonight. I’m Frederica Freyberg. Have a good weekend.

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Funding for “Here & Now” is provided by the Focus Funds for Journalism and Friends of PBS Wisconsin.