Rick Esenberg and C.J. Szafir

On March 29, 2013, the Wisconsin Institute for Law and Liberty (WILL) filed open records requests with the City of Milwaukee in an attempt to find out what, if anything, the City and Milwaukee Public Schools are doing about the appalling problem of the many unused school buildings that have sat idle for years.

Unfortunately, the City’s response to our request raises more questions than answers.

The City refuses to use its power to directly name and sell unused school buildings. Two years ago, the Governor signed into law Act 17 which gives the City the ability to directly sell or lease unused and underutilized school buildings. Previously, the selling of unused schools required approval by the MPS Board.

But, despite lobbying hard for Act 17, according to City policy, the City will not sell any unused buildings without the consent of MPS. In other words, it has returned its newly obtained authority right back to the entity whose foot dragging caused the legislative change in the first place.

Allowing the fox to guard the hens might not be so bad, if MPS allowed the City to sell all the empty buildings. It doesn’t. When Act 17 took effect, MPS had an estimated 25 to 35 unused and substantially underutilized buildings. Yet, in 2012, MPS allowed the City to sell just 4 of the 21 vacant buildings (which the City called “an extremely short list”).

City policy prohibits the selling of unused school buildings to many private and charter schools. Even for those few buildings that MPS is willing to sell, the City has refused to sell them to the most likely buyers. According to express City policy, private schools in the choice program and select charter schools are not allowed to buy unused school buildings. Selling empty school buildings to these schools would immediately turn blighted buildings into fully-functional educational institutions.

It is as if the City and MPS had opened a children’s clothing store and barred families from entering. But, once again, it gets worse. The City isn’t satisfied by simply not selling to private schools – it places a permanent deed restriction on the buildings to prevent future buyers from selling to private schools. Even if a buyer can be found, this makes financing difficult – if not impossible – to obtain.

In addition to it being a poor business practice, the deed restriction raises several legal and constitutional questions - similar deed restrictions against charter and choice schools were found to be illegal by the Ohio Supreme Court.

The City is using the children of Milwaukee as a political football. City policy also shows that choice and select charter schools cannot buy unused buildings until the school funding formula is fixed. The City and MPS have reiterated this position in emails to private schools who unsuccessfully attempted to buy empty school buildings.

But whatever one thinks of fixing the funding formula, the City and MPS are holding their own taxpayers – and the families of choice students who also reside in Milwaukee and pay taxes to MPS and the City – hostage to a political objective.

High performing private schools are being turned away. Tragically, the City is depriving thousands of children of having access to – not only a nearby school – but also a high quality education. In October 2012, for example, St. Marcus Lutheran School, which has a 95 percent graduation rate, inquired about buying three empty school buildings that were located within a few blocks of its main campus. The City’s response: “MPCP (choice) schools are not eligible to purchase vacant MPS property” and St. Marcus should “join the City of Milwaukee in lobbying vigorously for repair of the formula.”

All in all, the City owes its taxpayers – and children – an explanation. Choice and charter schools have been ready to buy and lease unused schools that have been vacant for years. However, the City willingly allows MPS to block this from occurring.

WILL also filed an open records request with MPS. It was received on April 1, and no records have yet been produced.


Rick Esenberg is president and general counsel of WILL and adjunct professor of Law at Marquette Law School.
C.J. Szafir is associate counsel and education policy director at WILL, a Milwaukee-based nonprofit legal organization that advances free markets, individual liberty, limited government and a robust civil society.