Chapter 119

119.23(7)(h) (h) Beginning in the 2018-19 school year, each private school participating in the program under this section shall conduct criminal background investigations of its employees and exclude from employment any person not permitted to hold a teaching license as the result of an offense and any person who might reasonably be believed to pose a threat to the safety of others.

119.23(7m) (7m) 

119.23(7m)(a) (a) By May 1 before the first school term that a private school participates in the program under this section or s. 118.60, a private school shall submit to the department one of the following:

119.23(7m)(a)1. 1. A surety bond payable to the state in an amount equal to 25 percent of the total amount of payments the private school expects to receive under this section and s. 118.60 during the first school year the private school participates in the program under this section.

119.23(7m)(a)2. 2. A complete anticipated budget, on a form provided by the department, for the first fiscal period of participation in the program under this section and evidence of financial viability, as prescribed by the department by rule. The private school shall include in the budget the anticipated enrollments for all pupils enrolled in the private school and for pupils enrolled in the private school under this section; estimated revenues and costs; a schedule of anticipated beginning and ending net choice program assets; and a schedule of monthly cash flow requirements. The private school shall include in the budget contingent funding sources the private school will use in the event that actual enrollments are less than expected.

119.23(7m)(b) (b)

119.23(7m)(b)1. 1. If a private school submits a surety bond under par. (a) 1., the private school shall annually provide, by May 1, a surety bond payable to the state until the private school submits all of the following to the department:

119.23(7m)(b)1.a. a. A financial audit prepared in accordance with generally accepted accounting principles with allowable modifications for long-term fixed assets that does not contain any indicators that the private school is not financially viable.

119.23(7m)(b)1.b. b. Evidence of sound fiscal and internal control practices under sub. (7) (am) 2m. b. for the school year in the financial audit submitted under subd. 1. a. and for the subsequent school year, neither of which indicates that the private school is not financially viable.

119.23(7m)(b)2. 2. A private school shall provide a surety bond under this paragraph in an amount equal to 25 percent of the total amount of payments the private school expects to receive under this section and s. 118.60 during the following school year.

119.23(7m)(c) (c) If a private school submits a complete anticipated budget under par. (a) 2., the department shall determine whether the private school is financially viable by August 1. If the department determines that the private school is not financially viable, the private school is not eligible to participate in the program under this section or s. 118.60 in the current school year.

119.23(9) (9) If any accrediting or preaccrediting entity determines during the accrediting or preaccrediting process that a private school does not meet all of the requirements under s. 118.165 (1), it shall report that failure to the department.

119.23(9m) (9m) Beginning in September 2016, and annually thereafter, the governing body of a private school participating in the program under this section that maintains an Internet site for the private school shall, if the private school is included in the most recent accountability report published under s. 115.385, within 30 days after the department publishes the accountability report, prominently link on the home page of that Internet site to the pages in that most recent accountability report concerning the private school.

119.23(10) (10) 

119.23(10)(a) (a) The state superintendent may issue an order barring a private school from participating in the program under this section in the current school year if the state superintendent determines that the private school has done any of the following:

119.23(10)(a)1. 1. Intentionally or negligently misrepresented any information required under this section or any rule promulgated under this section.

119.23(10)(a)2. 2. Failed to provide the notice or pay the fee required under sub. (2) (a) 3., or provide the information required under sub. (7) (am) or (d), by the date or within the period specified.

119.23(10)(a)3. 3. Failed to refund to the state any overpayment made under s. 119.23 (4) (b), 2011 stats., or s. 119.23 (4) (bg), 2011 stats., or under sub. (4) (bg) or (4m) by the date specified by department rule.

119.23(10)(a)5. 5. Failed to provide the information required under sub. (6m) or (6p).

119.23(10)(a)6. 6. Failed to comply with the requirements under sub. (7) (b), (c), or (h) or (7m).

119.23(10)(a)7. 7. Violated sub. (7) (b) 4., 5., or 6.

119.23(10)(a)8. 8. Before the end of a 7-year period beginning on the date of an order issued by the state superintendent under this subsection, retained a disqualified person, for compensation or as a volunteer, as an owner, officer, director, trustee, administrator, person designated by the administrator to assist in processing pupil applications, or person responsible for administrative, financial, or pupil health and safety matters.

119.23(10)(am) (am) If the state superintendent determines that any of the following have occurred, he or she may issue an order barring the private school from participating in the program under this section in the following school year:

119.23(10)(am)1. 1. The private school has not complied with the requirements under sub. (7) (em).

119.23(10)(am)2. 2. The private school’s application for accreditation has been denied by the accrediting entity.

119.23(10)(am)3. 3. The private school has not achieved accreditation within the period allowed under sub. (2) (a) 7.

119.23(10)(am)4. 4. The private school intentionally or negligently misrepresented any information required under this section or any rule promulgated under this section.

119.23(10)(ar) (ar)

119.23(10)(ar)1. 1. If the state superintendent determines that a private school has failed to continuously maintain accreditation as required under sub. (7) (ad), that the governing body of the private school has withdrawn the private school from the accreditation process, or that the private school’s accreditation has been revoked, denied, or terminated by an accrediting agency, the state superintendent shall issue an order barring the private school’s participation in the program under this section at the end of the current school year.

119.23(10)(ar)2. 2. A private school whose participation in the program under this section is barred under subd. 1. may not participate in the program under this section or under s. 118.60 until the governing body of the private school demonstrates to the satisfaction of the department that it has obtained accreditation from an accrediting entity, provided the accreditation is from an entity other than the entity with which the private school failed to continuously maintain accreditation or, if the private school’s accreditation was revoked, denied, or terminated, other than the entity that revoked, denied, or terminated the private school’s accreditation.

119.23(10)(b) (b) The state superintendent may issue an order immediately terminating a private school’s participation in the program under this section if he or she determines that conditions at the private school present an imminent threat to the health or safety of pupils.

119.23(10)(c) (c) Whenever the state superintendent issues an order under par. (a), (am), (ar), or (b), he or she shall immediately notify the parent or guardian of each pupil attending the private school under this section.

119.23(10)(d) (d) The state superintendent may withhold payment from a private school under subs. (4) and (4m) if the private school violates this section or s. 115.383 (3) (b).

119.23(11) (11) The department shall do all of the following:

119.23(11)(a) (a) Promulgate rules to implement and administer this section. The department may not by rule establish standards under sub. (7) (am) that exceed the standards established by the American Institute of Certified Public Accountants.

119.23(11)(b) (b) Notify each private school participating in the program under this section of any proposed changes to the program or to administrative rules governing the program, including changes to application or filing deadlines but not including changes to provisions governing health or safety, prior to the beginning of the school year in which the change takes effect.

119.23(11)(c) (c) Within 10 days after receiving the information submitted as required under sub. (7) (em), notify the participating private school of receipt of accreditation status.

119.23(11)(d) (d) When the department publicly releases data related to enrollment of, standardized test results for, applications submitted by, waiting lists for pupils participating in or seeking to participate in the program under this section, release the data all at the same time, uniformly, and completely.

119.23(12) (12) During the public health emergency declared on March 12, 2020, by executive order 72, if a private school participating in the program under this section is closed for at least 10 school days in a school year by a local health officer, as defined in s. 250.01 (5), or the department of health services, in the school year during which the school is closed and the following school year, the department may not withhold payment from the private school under sub. (10) (d) or bar the private school from participating in the program under sub. (10) (a), (am), or (ar) for failing to comply with a requirement under this section or a rule promulgated under this section if all of the following occur:

119.23(12)(a) (a) The private school submits information to the department that explains how the school closure impacted the private school’s ability to comply with the requirement and any action the private school took to mitigate the consequences of not complying with the requirement.

119.23(12)(b) (b) The department determines that the private school’s failure to comply with the requirement was caused by the closure.

119.23 History History: 1989 a. 336; 1993 a. 16; 1995 a. 27 ss. 4002 to 4009, 9145 (1); 1995 a. 216; 1997 a. 27, 113; 1999 a. 9; 2001 a. 16, 105; 2003 a. 33, 155; 2005 a. 25, 125; 2009 a. 28, 96; 2011 a. 32, 47; 2013 a. 8, 20, 165; 2013 a. 166 s. 77; 2013 a. 237, 256; 2015 a. 55, 195, 212, 297, 338; 2017 a. 36, 59; 2017 a. 364 ss. 48, 49; 2019 a. 55, 185; 2021 a. 30; 2021 a. 238 s. 45; 2021 a. 239 s. 74; 2023 a. 11.

119.23 Cross-reference Cross-reference: See also ch. PI 35, Wis. adm. code.

119.23 Annotation This section is constitutional. Jackson v. Benson, 218 Wis. 2d 835, 578 N.W.2d 602 (1998), 97-0270.

119.23 Annotation Although portions of the plaintiff’s property were located in Milwaukee, the school itself was not when its buildings were not in the city and it was unable to obtain a certificate of occupancy from Milwaukee as required under sub. (7) (d). Without the requisite certificate on file, the plaintiff was ineligible to participate in the choice program under this section. Thomas More High School v. Burmaster, 2005 WI App 204, 287 Wis. 2d 220, 704 N.W.2d 349, 04-2511.

119.23 Annotation The Cleveland, Ohio, school choice program, which provides tuition aid to parents who may use the money to pay tuition to private, religious schools, does not violate the establishment of religion clause of the 1st amendment. When an aid program is neutral with respect to religion and provides assistance to a broad class of citizens who, in turn, direct the aid to religious schools through individual choice, the program is not subject to challenge. Zelman v. Simmons-Harris, 536 U.S. 639, 122 S. Ct. 2460, 153 L. Ed. 2d 604 (2002).

119.23 Annotation Milwaukee Parental Choice Program Upheld. Beard. 75 MLR 673 (1992).

119.23 Annotation Opening the Door to School Choice in Wisconsin. Is Agnosti v. Felton the Key? Kimball. 81 MLR 843 (1998).

119.23 Annotation The Constitutional Implications of School Choice. 1992 WLR 459.

119.235 119.235 Contracts with private schools and agencies.

119.235(1) (1) The board may contract with any nonsectarian private school located in the city or any nonsectarian private agency located in the city to provide educational programs to pupils enrolled in the school district operating under this chapter. The board shall ensure that each private school or agency under contract with the board complies with ss. 118.125 and 118.13, 20 USC 1232g, 20 USC 1681 to 1688, 20 USC 3171 to 3197, 29 USC 794, 42 USC 2000d and 42 USC 6101 to 6107, and all health and safety laws and rules that apply to public schools.

119.235(2) (2) Each private school or agency under contract with the board shall do all of the following:

119.235(2)(a) (a) Offer a full school year educational program.

119.235(2)(b) (b) Participate in the board’s parent information program.

119.235(2)(c) (c) Offer diverse opportunities for parents to participate in the school’s programs.

119.235(2)(d) (d) Meet insurance and financial requirements established by the board.

119.235(2)(e) (e) Develop a pupil recruitment and enrollment plan that incorporates all of the following:

119.235(2)(e)1. 1. A good faith effort to achieve racial balance.

119.235(2)(e)2. 2. A pupil selection process that gives preference to the siblings of enrolled pupils and that gives no other preferences except those approved by the board.

119.235(2)(e)3. 3. A statement describing how the plan will serve the needs of low-academic achievers and pupils from low-income families.

119.235(2)(f) (f) Report to the board any information requested by the board.

119.235(3) (3) Any pupil enrolled in the school district operating under this chapter may attend, at no charge, any private school or agency with which the board has contracted under sub. (1) if space is available in the private school or agency.

119.235(4) (4) The board shall establish appropriate, quantifiable performance standards for pupils at each private school or agency with which it contracts in such areas as attendance, reading achievement, pupil retention, pupil promotion, parent surveys, credits earned and grade point average.

119.235(5) (5) Annually, the board shall monitor the performance of the program under this section. The board may use the results of standardized basic educational skills tests to do so. The board shall include a summary of its findings in its annual report to the state superintendent under s. 119.44.

119.235 History History: 1995 a. 27.

119.24 119.24 Admission of pupils. A pupil may attend a school in an attendance district other than the one in which he or she resides with the written permission of the superintendent of schools. Beginning in the 2000-01 school year, the board shall provide spaces in each school for pupils who reside outside the attendance district for the school, but shall fill any unused spaces with pupils who reside in the attendance district. A pupil who attends a school may continue to attend that school until he or she graduates from the school and each sibling of that pupil shall be given priority over other pupils in the process of admission for that school.

119.24 History History: 1985 a. 29; 1999 a. 9.

119.25 119.25 Expulsion of pupils.

119.25(1) (1) The board may adopt a resolution, which is effective only during the school year in which it is adopted, authorizing any of the following to determine pupil expulsion from school under sub. (2) instead of using the procedure under s. 120.13 (1) (c):

119.25(1)(a) (a) An independent hearing panel appointed by the board.

119.25(1)(b) (b) An independent hearing officer appointed by the board.

119.25(2) (2) 

119.25(2)(a) (a) During any school year in which a resolution adopted under sub. (1) is effective, the independent hearing officer or independent hearing panel appointed by the board:

119.25(2)(a)1. 1. May expel a pupil from school whenever the hearing officer or panel finds that the pupil engaged in conduct that constitutes grounds for expulsion under s. 120.13 (1) (c) 1. or 2.

119.25(2)(a)2. 2. Shall commence proceedings under par. (b) and expel a pupil from school for not less than one year whenever the hearing officer or panel finds that the pupil engaged in conduct that constitutes grounds for expulsion under s. 120.13 (1) (c) 2m.

119.25(2)(b) (b) No administrator may be designated to participate in an expulsion hearing if he or she was involved in the incident that led to the expulsion proceeding. Prior to expelling a pupil, the hearing officer or panel shall hold a hearing. Upon request of the pupil and, if the pupil is a minor, the pupil’s parent or guardian, the hearing shall be closed. The pupil and, if the pupil is a minor, the pupil’s parent or guardian, may be represented at the hearing by counsel. The hearing officer or panel shall keep a full record of the hearing. The hearing officer or panel shall inform each party of the right to a complete record of the proceeding. Upon request, the hearing officer or panel shall direct that a transcript of the record be prepared and that a copy of the transcript be given to the pupil and, if the pupil is a minor, the pupil’s parent or guardian. Upon the ordering by the hearing officer or panel of the expulsion of a pupil, the school district shall mail a copy of the order to the board, the pupil and, if the pupil is a minor, the pupil’s parent or guardian. A school board, hearing officer or panel may disclose the transcript to the parent or guardian of an adult pupil, if the adult pupil is a dependent of his or her parent or guardian under section 152 of the internal revenue code. Within 30 days after the date on which the order is issued, the board shall review the expulsion order and shall, upon review, approve, reverse or modify the order. The order of the hearing officer or panel shall be enforced while the board reviews the order. The expelled pupil or, if the pupil is a minor, the pupil’s parent or guardian may appeal the board’s decision to the state superintendent. If the board’s decision is appealed to the state superintendent, within 60 days after the date on which the state superintendent receives the appeal, the state superintendent shall review the decision and shall, upon review, approve, reverse or modify the decision. The decision of the board shall be enforced while the state superintendent reviews the decision. An appeal from the decision of the state superintendent may be taken within 30 days to the circuit court for the county in which the school is located.

119.25(2)(c) (c) Not less than 5 days’ written notice of the hearing under par. (b) shall be sent to the pupil and, if the pupil is a minor, to the pupil’s parent or guardian. The notice shall include all of the information specified in s. 120.13 (1) (e) 4.

119.25(2)(d) (d)

119.25(2)(d)1. 1. In this paragraph:

119.25(2)(d)1.a. a. “Early reinstatement” means the reinstatement to school of an expelled pupil before the expiration of the term of expulsion specified in the pupil’s expulsion order under par. (b).

119.25(2)(d)1.b. b. “Early reinstatement condition” means a condition that a pupil is required to meet before he or she may be granted early reinstatement or a condition that a pupil is required to meet after his or her early reinstatement but before the expiration of the term of expulsion specified in the pupil’s expulsion order under par. (b).

119.25(2)(d)2. 2. An independent hearing panel or independent hearing officer appointed by the board may specify one or more early reinstatement conditions in the expulsion order under par. (b) if the early reinstatement conditions are related to the reasons for the pupil’s expulsion. Within 15 days after the date on which the expulsion order is issued, the expelled pupil or, if the pupil is a minor, the pupil’s parent or guardian may appeal the determination regarding whether an early reinstatement condition specified in the expulsion order is related to the reasons for the pupil’s expulsion to the board. The decision of the board regarding that determination is final and not subject to appeal.

119.25(2)(d)3. 3. If the superintendent of schools or his or her designee, who shall be someone other than a principal, administrator or teacher in the pupil’s school, determines that a pupil has met the early reinstatement conditions that he or she is required to meet before he or she may be granted early reinstatement, the superintendent of schools or designee may grant the pupil early reinstatement. The determination of the superintendent of schools or designee is final.

119.25(2)(d)4. 4. If a pupil violates an early reinstatement condition that the pupil was required to meet after his or her early reinstatement but before the expiration of the term of expulsion, the superintendent of schools or a principal or teacher designated by the superintendent of schools may revoke the pupil’s early reinstatement as provided in s. 120.13 (1) (h) 4.

119.25(2)(d)5. 5. Except as provided in subd. 6., if the pupil’s early reinstatement is revoked under subd. 4., the pupil’s expulsion shall continue to the expiration of the term specified in the expulsion order unless the pupil or, if the pupil is a minor, the pupil’s parent or guardian and the board, independent hearing panel or independent hearing officer agree, in writing, to modify the expulsion order.

119.25(2)(d)6. 6. Within 5 school days after the revocation of a pupil’s early reinstatement under subd. 4., the pupil or, if the pupil is a minor, the pupil’s parent or guardian may request a conference with the superintendent of schools or his or her designee, who shall be someone other than a principal, administrator or teacher in the pupil’s school. If a conference is requested, it shall be held within 5 school days following the request. If, after the conference, the superintendent of schools or his or her designee finds that the pupil did not violate an early reinstatement condition or that the revocation was inappropriate, the pupil shall be reinstated to school under the same reinstatement conditions as in the expulsion order and the early reinstatement revocation shall be expunged from the pupil’s record. If the superintendent of schools or his or her designee finds that the pupil violated an early reinstatement condition and that the revocation was appropriate, he or she shall mail separate copies of the decision to the pupil and, if the pupil is a minor, to the pupil’s parent or guardian. The decision of the superintendent of schools or his or her designee is final.

119.25 History History: 1987 a. 88; 1995 a. 27 s. 9145 (1); 1995 a. 32, 75, 235, 417; 1997 a. 27; 1999 a. 128, 186.

119.25 Annotation Having established the right to an education, the state may not withdraw the right on grounds of misconduct absent fundamentally fair procedures to determine if misconduct occurred. Attendance by the student at expulsion deliberations is not mandatory; all that is required is that the student have the opportunity to attend and present his or her case. Remer v. Burlington Area School District, 149 F. Supp. 2d 665 (2001).

119.26 119.26 Partial annexation of school district. When the city has annexed a portion of the territory of a school district and such annexation does not include the site of any school building of such school district, the school board of the district and the board may enter into an agreement to permit pupils residing in the annexed territory to continue to attend school in the school district, and the board shall pay tuition to the school district for the pupils in accordance with s. 121.78.