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The following program is a PBS Wisconsin original production.

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65,000 Wisconsin students are threatened by a lawsuit that would rip them from their schools.

Frederica Freyberg:

An ad campaign to keep private school choice highlights the high stakes of a case that could come before the Wisconsin Supreme Court. And Wisconsin’s false electors admit their attempt to overturn the 2020 presidential election.

I’m Frederica Freyberg. Tonight on “Here & Now,” the UW reaches a deal with the Republican Legislature over pay raises and funding. Republicans admit to their role in the fake elector scheme. Then, a Wisconsin Supreme Court case could throw the K-12 school choice system into chaos. We speak with attorneys from both sides. The next in our series of interviews with legislative leaders and the critical shortage of school therapists. It’s “Here & Now” for December 8.

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

Frederica Freyberg:

A bombshell court settlement this week involving the 10 Wisconsin Republican fake electors in the 2020 presidential election. These are photos of the electors gathered in secret and under armed guard at the state Capitol in 2020 to fraudulently sign certification documents casting their vote for Donald Trump. As part of the settlement, the false electors had to make public this statement, “On December 14, 2020, in compliance with requests received from the Trump campaign and the Republican Party of Wisconsin, we met at the Wisconsin State Capitol and executed a document titled ‘Certificate of the Votes of the 2020 Electors from Wisconsin.’ That document stated, in part, that we were the duly elected and qualified electors for president and vice president of the United States of America from the state of Wisconsin. The elector defendants took the foregoing action because they were told that it was necessary to preserve their electoral votes in the event a court challenge may later change the outcome of the election in Wisconsin. That document was then used as part of an attempt to improperly overturn the 2020 presidential election results.” Under the settlement, the false electors all agreed to withdraw documents executed that day, acknowledged Joe Biden won the election and agreed not to serve as presidential electors in 2024 or any election with Donald Trump on the ballot. The Republican elector defendants also promised to help the U.S. Department of Justice in its investigation. The false electors include current Wisconsin Elections Commissioner Bob Spindell and former state Republican Party chair Andrew Hitt. The lawsuit was brought by Madison firm Law Forward which says about the settlement, “Wisconsin voters have been awaiting accountability for three years and it is beyond time to hold those who perpetrated this scheme responsible for their actions.” The suit continues against two attorneys who assisted the false electors.

Petitioners in a lawsuit challenging Wisconsin’s private school choice program await word from the state Supreme Court whether it will take their case. They want the court to end the program, arguing it violates the state constitution, saying the Legislature has created a cancer that’s killing public schools. Tonight, we hear both sides of this case, starting with a lawyer who filed the school choice lawsuit, Frederick Melms. He joins us from Minocqua. Thanks very much for being here.

Frederick Melms:

Thank you.

Frederica Freyberg:

So why are you asking the Supreme Court to take this as an original action rather than taking your lawsuit to circuit court first?

Frederick Melms:

Well, there are a number of reasons. The primary reason we’re taking our petition directly to the Supreme Court is efficiency. Ultimately, this case winds up there anyway. If we start in the circuit court, we win, we lose, we appeal to the appellate courts. We win, we lose, we appeal, the other side appeals, and we’re in the Supreme Court. So ultimately this just saves two and half to three years of litigation for everyone. A lot of what we are arguing has not been decided upon before by the Supreme Court. These are matters of first impression. So they are also — they’re the most appropriate court to be ruling on these — on our issues as well.

Frederica Freyberg:

How disappointed were you that the Evers administration joined Robin Vos in saying it should, in fact, not start in the high court?

Frederick Melms:

Umm, you know, we were certainly disappointed, but, you know, the Evers administration and Miss Blumenfeld have their own agenda that they need to fulfill.

Frederica Freyberg:

So your lawsuit says that school voucher programs were, “designed to destructively defund public schools.” But isn’t that true? Weren’t they designed and started in the early ’90s in Milwaukee to offer private school choice to low income students and their families?

Frederick Melms:

So the programs we have now outside of Milwaukee are significantly different than that Milwaukee program, and what they do is, for every student who takes a voucher outside of Milwaukee, the state deducts the entire value of that voucher, which is, for a high school student, almost $13,000, from their local school district state aid. And in a lot of these districts, the state, they’re only getting about $2,000 per student. So for every voucher (intelligible) so for every voucher student you lose to a voucher school, you’re losing, you know, six or seven students’ worth of state aid in many districts. And then you either have to make that up through the local tax levy or your students don’t have the resources they’re supposed to have. And this has been felt particularly hard in Racine, where something like one out of every three dollars of their local property taxes is used effectively just to backfill the money taken in state aid to fund the voucher program for Racine students. It’s close to $45 million that the Racine property taxpayers are being asked to put up to make up for the aid reduction from the voucher program.

Frederica Freyberg:

So, in fact, in the last school year, the private school choice program costs nearly 450 million state dollars. What would you say that is doing to the public school system?

Frederick Melms:

Well, that’s money being directly removed from the public schools. That’s money the public schools are supposed to have. The state options when they chose how to fund this program and they chose the one that was most destructive to the traditional public school districts, and it’s our contention that this was intentional and it was an intentional effort to defund and ultimately damage public education in Wisconsin.

Frederica Freyberg:

You say the private voucher schools don’t have adequate oversight or educational standards, which their advocates dispute in their filings and other ways, but why would parents then choose these schools?

Frederick Melms:

So I mean, I think there’s some pretty solid marketing efforts on behalf of these schools to suggest that they are a better choice, and while they may be a better choice for some students, it’s certainly not the majority of students. I think if you look to the most recent testing data we saw across the state that voucher students scored significantly worse on average than public school students. So in most cases, these are not public schools — or these are not quality schools, and if you look back, you know, throughout the history of this program, something like 40% of them had closed their doors already. It’s only a 30-year-old program. We’re seeing a 40% failure rate and then they leave these kids stranded who then have to find a public school. This has not been a good program.

Frederica Freyberg:

All right. We need to leave it there. Mr. Melms, thanks very much, we’ll be watching this case as it progresses.

Frederick Melms:

Thank you.

Frederica Freyberg:

Supporters of Wisconsin’s taxpayer-funded school choice and independent charter school programs want the state Supreme Court to reject the lawsuit, saying ending the program would create chaos for tens of thousands of families with students currently enrolled. Wisconsin Institute for Law and Liberty attorney Rick Esenberg is on the case for school choice advocates. He joins us from Milwaukee. Thanks very much for being here.

Rick Esenberg:

Thank you for having me.

Frederica Freyberg:

What would happen if petitioners won their case and the choice program folded, transferring private school students back?

Rick Esenberg:

Well, it’d be chaos for children in the program. First of all, they would be denied an educational opportunity that they and their parents have chosen. There would be a massive influx of students into public schools who are not currently set up to receive them, and the legal principles that would be established by a decision against the program in this case would have ramifications for how we finance our schools. It would call into question equalization aid. It would call into question a whole variety of non-educational public programs. It would be really a disaster for the state of Wisconsin, and it’s something that I don’t believe our court’s going to do.

Frederica Freyberg:

So in your court filing, you took great exception to the claim that choice programs were intended to hurt and are hurting public schools. Why?

Rick Esenberg:

Well, you know, we live in a very polarized time right now, and I think a lot of people don’t remember that, when school choice was initially enacted about 30 years ago, it was a bipartisan program. Both Democrats and Republicans realized, first in Milwaukee, that schools were not serving all students well, and that equity and educational effectiveness would be served by letting lower income families have the same choice that wealthier families have. And so this really was an effort to help kids. We often hear about, you know, school choice somehow being a profit — profit-making enterprise, and it’s really not. These are nonprofit institutions. Most of them are religiously based, and nobody’s making money. This really is, I think, intended to give kids an opportunity that they otherwise wouldn’t have. It’s not to destroy the public schools. Choice advocates realize most kids are going to continue to go to public schools. This isn’t about sector wars. It’s just a recognition that human beings are diverse, human beings are different, and some people, some kids will benefit from the opportunities that choice provides for them.

Frederica Freyberg:

Still, public tax dollars are increasingly being diverted from public schools to private schools. How does that not hurt the publics?

Rick Esenberg:

Well, they’re not being diverted. The purpose of public tax dollars is not to benefit public schools as an institution; it’s to educate children. And there are lots of social services that the government provides that may sometimes be provided by government employees and may sometimes be provided by, you know, private vendors, hospitals, adoption agencies. There’s a whole host of them. And so what happens is when a school, when a kid who is being educated at public expense, we’re all in favor of that, goes to a private school, the tax money that is used to educate her goes with her, and so there’s no diversion. There’s just choice.

Frederica Freyberg:

So with less than a half a minute left, how buoyed were you that Governor Evers’ administration agreed with Robin Vos that this case should start not in the high court but in circuit court?

Rick Esenberg:

You know, I give Governor Evers and General Kaul credit for this. I know that they’re not proponents of the choice program but they did the right thing legally. This is an inappropriate case for an original action and they made the right call.

Frederica Freyberg:

Alright. We need to leave it there. Rick Esenberg, thanks very much.

Rick Esenberg:

Thank you.

Frederica Freyberg:

Wisconsin Republican Legislative leaders have reached an agreement with the UW over releasing budget-approved pay raises, $32 million in cuts over DEI programs and funding of a new engineering building at UW-Madison. A note, PBS Wisconsin is part of UW-Madison. The deal includes enacting the 4% salary increases for 35,000 UW staff. The release of 32 million state dollars held back over diversity programs, and funding for a new UW-Madison engineering building. In return, the university agrees to a freeze in the number of DEI positions, with a third of those jobs to focus on academic success and the creation of an endowed chair position to focus on conservative political thought.

Jay Rothman:

Today’s agreement reflects what we believe to be in the best interests of the Universities of Wisconsin and all Wisconsinites to find a path forward on the issue the speaker has raised in a way that enables all of our universities to better serve students and the public under the current circumstances.

Frederica Freyberg:

In another win for abortion advocates, a Wisconsin judge ruled this week that a 175-year-old law on Wisconsin’s books does not ban consensual abortions. The ruling from Dane County Circuit Court Judge Diane Schlipper was a declaratory judgment solidifying her interpretation of the law. Sheboygan County District Attorney Joel Urmanski, a Republican and a defendant in the case, says he plans to appeal.

In other news, as part of our end-of-year interviews with legislative leaders, senior political reporter Zac Schultz talked with Republican Senate Majority Leader Devin LeMahieu about 2023 and the year to come.

Zac Schultz:

Give me your perspective on the last year starting with the budget, that was the big bill of the year. How do you think that everything’s unfolded for you?

Devin LeMahieu:

I think we got a lot of good things done this last year in 2023. The shared revenue bill for local levels of government, school funding, school choice expansion, a budget that could have been better if the governor wouldn’t have issued a couple of vetoes, but — and then this fall, passing — you know, keeping the Brewers around for another 20 years and we got a lot of good bills done.

Zac Schultz:

A year ago, there was a lot of talk about a reset with the governor. There have been some good moments with the governor we just talked about. There have been some other moments where the Senate has rejected some of his appointments. There have been some other controversies. How do you feel your relationship is with the administration right now?

Devin LeMahieu:

Since the budget, we haven’t communicated a whole lot, unfortunately, but I guess worked somewhat with the governor’s office on the Brewers bill to make sure that he was comfortable with it and obviously he really wanted to get it done as well, but it’s just unfortunate he keeps vetoing tax cuts when we have such a large surplus that we’re sitting on taxpayer money when we could be giving it back to them.

Zac Schultz:

Speaking of the tax cuts that have been passed and vetoed twice now, you have been able to work with the governor on other issues. Is there any room to sit down at the table and find compromise on what he might be willing to sign?

Devin LeMahieu:

I don’t know — I mean, if it’s some wish list of his, like things that don’t make sense, it’s not worth doing a tax cut but he was for reducing that tax bracket in the — before he ran for re-election, and used that as part of his re-election tactics, but now apparently it’s not — it’s a wealthy tax cut, which starts at 24,000 when you file individually, that tax rate, and 36,000 married filing jointly. So it’s really unfortunate that he sort of flipped his idea of that being a good way to reduce taxes in the state of Wisconsin.

Zac Schultz:

When you look ahead to the next year, what bills are a priority for you?

Devin LeMahieu:

I think there’s two bills that hopefully we can get done yet. First is the right of first refusal to allow Wisconsin companies the right to build new transmission lines first. Keep that work done here in Wisconsin. It’s going to save rate payers money, so hopefully we can get that done. And there’s electric vehicle charging bill that was just introduced. I think that bill will be vital to expand charging stations around the state of Wisconsin as there are more and more electric vehicles.

Zac Schultz:

In terms of election bills, are there any bills out there that you think the governor will sign specifically some of the early counting bills that have been proposed in the past?

Devin LeMahieu:

Well, there was a time when I actually authored that bill a couple of sessions ago, but I’m not sure where that bill is at in the Senate right now. I don’t know if it will move or not, but you know, it’s important to make sure that some of the bigger cities actually get their votes counted on time.

Zac Schultz:

One of the other big things that happened this year, obviously, was the Supreme Court election and a shift in the balance and the power there. How much does that weigh on your caucus when it comes to either the bills that you’re proposing or obviously looking ahead to possible new maps next year?

Devin LeMahieu:

I think there’s a lot of concern in our caucus, and amongst myself that, you know, everything that we’ve done over, for me, for eight years and for other people who’ve been around even longer, for the last decade, 12 years, all of the reforms that we’ve passed could be undone by, depending on how activist this court actually becomes, and, you know, it’s early on, but you can tell the first thing that they did was challenge our maps, that she was sworn into office, so that’s — it’s really unfortunate that it seems like with the governor’s lawsuit trying to — suing us, our joint committees, that we have two branches of government trying to box out the legislative branch right now. We are a coequal branch of government and we’re going to keep operating like that and look forward to getting good bills done.

Zac Schultz:

One of the big things for Republicans next year is the convention coming to Milwaukee. What do you think that impact will be for the rest of the state all the way in the fall?

Devin LeMahieu:

You know, I think it will be good — it would have been great if we had the DNC convention here in 2020, just to highlight Milwaukee and the great state that we are. It will be exciting to have all of the cameras on on the city of Milwaukee and highlight the good state of Wisconsin.

Zac Schultz:

But as far as an electoral boost, you think that can change minds in Milwaukee, the suburbs, or anywhere else in the state?

Devin LeMahieu:

I’m not sure if that will happen. It’s going to be up to whoever the nominee is to do that. We’ll be working hard at the grassroots level in the Senate. I think we’ve been very successful finding — this last session, we had a lot of open seats that were close and we found good candidates and — who connected with their districts and that’s how we picked up a seat and got to a two-thirds majority. It will be my job to help find good, qualified candidates if we have new maps or if some of our members decide not to run again. But I think a lot, if things — just the even Senate districts are up, I think a lot of those senators will probably run again. But we’ll see.

Zac Schultz:

Do you hope that Donald Trump is the Republican nominee?

Devin LeMahieu:

I’ll let the voters decide on that. I’m a big fan of Nikki Haley. I think she would be a nice contrast to President Biden, but that’s for the voters to decide.

Zac Schultz:

Senate majority leader, thanks for your time today.

Devin LeMahieu:

Thank you.

Frederica Freyberg:

In education, a critical shortage of school therapists is plaguing districts across the country as mental health challenges for students surge. Seeing the need, educators and students in Wisconsin are finding ways to bridge the gap. Steven Potter has more.

Andy Farley:

I think every school principal would love to have more mental health professionals.

Steven Potter:

Despite having a handful of counselors, a school psychologist and a social worker on staff, Andy Farley, principal of Brookfield East High School, says they still have trouble meeting the mental health needs of their 1,400 students.

Andy Farley:

It’s never going to be enough.

Steven Potter:

Farley knows firsthand how devastating student mental health problems can become. A few years back, a number of students at Brookfield East High School died from suicide.

Andy Farley:

Incredibly difficult. Incredibly difficult at our school level, incredibly difficult at our community level. We all knew we had to do something.

Steven Potter:

They created a local chapter of the national, student-led mental health support network called the Hope Squad.

Student:

Does anyone want to share out about some of the positives?

Steven Potter:

On a weekly basis, the school’s 60 student members discuss new strategies to help their classmates stay mentally healthy, from the importance of getting enough sleep and social/emotional learning techniques to recognizing suicide warning signs. Brookfield East sophomore Ledra Ashenbrenner is a Hope Squad member.

Ledra Ashenbrenner:

From a student standpoint, we are the eyes and ears of the school. We bridge the gap between students and counselors and teachers because research has shown that students are more likely to go to their peers if they’re having, like, an issue that they need help with.

Katie Eklund:

20% of kids have some type of behavioral or social/emotional concern.

Steven Potter:

Katie Eklund is a professor of school psychology at UW-Madison.

Katie Eklund:

But we know out of that group, only 20% of those kids actually receive that support.

Steven Potter:

Eklund works to find solutions to the increasing rates of young children suffering from anxiety and depression, including those harming themselves or considering suicide.

Katie Eklund:

Unmet mental health concerns we see often by the time kids get to high school. We see kids not coming to school. We see lower grades. We see higher incidents in the juvenile justice system and just lower, poor psychosocial outcomes throughout life.

Steven Potter:

Eklund says that children aren’t getting the help they need because of a shortage of mental health professionals, such as therapists, counselors and school psychologists. According to the National Center for Education Statistics, 70% of public schools say more students are seeking mental health services but 87% of those schools say they can’t provide such services to all of the students in need. Eklund and her colleagues, however, have a plan and new resources to address this shortage with a $10 million grant from the U.S. Department of Education.

Katie Eklund:

It’s designed to increase the pipeline of school psychologists, school social workers and school counselors who are working in K-12 schools around the country.

Steven Potter:

She says the need speaks for itself.

Katie Eklund:

In 2018, we had 60 to 70 unfilled positions across the state of school psychologists. We anticipate that school social workers and counselors are experiencing similar shortages, both here in the state and across the country and that those shortages have only increased over the last five years.

Steven Potter:

While everyone from school administrators to the students themselves agree that more mental health professionals are needed in schools, they would still need to be paid, and that’s where the state legislature could come in. Democratic State Representative Robyn Vining has introduced a package of bills aimed at increasing funding for K-12 mental health services. She says we’re well past the time for action.

Robyn Vining:

We know there’s a mental healthcare crisis. We know that. And so we cannot look away. I don’t believe that we can move forward right now without acting on mental healthcare.

Steven Potter:

One of Representative Vining’s bills would increase spending on mental healthcare services in the state’s school system by $100 million per year.

Robyn Vining:

We’re talking about children who are experiencing anxiety, depression, suicidality, and we’re trying to get professionals to be available to work with them, to help them survive this very difficult stage of life.

Steven Potter:

And so, at the local, state and national level, Wisconsin is working to respond to the growing mental health needs of its youngest populations. Reporting for “Here & Now” from Brookfield, I’m Steven Potter.

Frederica Freyberg:

If you or someone you know needs mental health resources, dial 988 for the Wisconsin Suicide and Crisis Lifeline. 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 Fund for Journalism and Friends of PBS Wisconsin.