Attorneys representing parents and private schools at a court hearing argued they should be allowed to intervene in a lawsuit challenging the state’s school funding system because the case threatens private school voucher programs.

Also at Tuesday’s hearing, Eau Claire County Judge Sarah Harless said she knows two of the plaintiffs in the case and is willing to recuse if requested. 

The lawsuit seeks an order declaring Wisconsin’s school finance system unconstitutional, arguing it fails to adequately fund students’ education. A split Supreme Court in 2000 upheld the constitutionality of the state’s school finance system.

Part of the lawsuit argues that the nearly $700 million the state put into private school vouchers in the 2025-26 school year violates a state Supreme Court ruling that the choice program is permitted only so long as “the State is already meeting its obligations to provide for public schools.”

Wisconsin Institute for Law & Liberty Deputy Counsel Lucas Vebber is representing parents, private schools and School Choice Wisconsin Action, who are seeking to intervene in the case.

He said the lawsuit claims a lack of funding is to blame for “alleged failings” in the state’s education system, in part due to funding being sent to private schools. 

“The relief sought is not some specific thing only limited to the public school system. Rather, they want this court to declare the entire school finance system to be unconstitutional. That absolutely would include the very programs on which my clients support, rely on and participate in,” Vebber said, calling the litigation “a frontal assault on their very existence and the choice system that tens of thousands of Wisconsin families rely on.” 

EdChoice attorney Melinda Hudson represents a single mom and a couple with children who have received vouchers and are also seeking to intervene in the case.

She said the lawsuit puts at risk the private school vouchers her clients benefit from. 

Law Forward attorney Rachel Snyder, representing the education stakeholders who filed the suit, said the voucher system was mentioned in the complaint to “ensure that the court has the full picture of the education funding landscape” but that the case is “entirely focused on public school funding and the Legislature’s obligation in that regard.” She argued the parties should not be allowed to intervene. 

“There’s nothing here that requires the court to do anything or to reach any conclusions with respect to choice schools. This would bring a different claim and redirect the lawsuit in a way that plaintiffs do not desire and do not intend to push for,” Snyder said. 

Also at the hearing, Harless disclosed that she knows Oriana and Josh Miller of Eau Claire, two of the plaintiffs, noting one of her children is a student in the Eau Claire Area School District. Harless said she sees the family from time to time at school events and activities.

“If this were something that made any party uncomfortable such that they believe it’s an appearance of impropriety or such that they do not believe I could be neutral on the case, I would certainly remove myself from the case,” Harless said. 

Harless did not immediately issue a decision on whether to allow the groups to intervene in the case following the hearing, scheduling a June 17 meeting to issue an oral ruling. 

She also said parties should be prepared to advise her during that meeting if they want to seek her recusal. 

None of the parties indicated concrete plans to seek a recusal at this point. Attorney Kevin LeRoy, who is representing the Legislature, said he would have to confer with his clients on whether they would seek a recusal.