Wisconsin Legislature: Destination-117

75 Op. Att'y Gen. 251, 260 (1986)

In analyzing this section, the court in

Buse v. Smith

, 74 Wis. 2d 550, 567, 247 N.W.2d 141 (1976), stated:

75 Op. Att'y Gen. 251, 260 (1986)

The involvement of the legislature from the framing of the constitution to the present and the many cases which have come before this court, emphasize that the equal opportunity for education as defined by art. X, sec. 3, is a fundamental right.

75 Op. Att'y Gen. 251, 260 (1986)

To hold that the right to equal opportunity for education is a fundamental right under the Wisconsin Constitution and

to hold that the legislature is constitutionally mandated to provide an equal opportunity for education as that term is defined by the criteria set forth in sec. 3, art. X, is not necessarily to validate as constitutional any means chosen by the legislature to achieve that end.

75 Op. Att'y Gen. 251, 260 (1986)

(Emphasis added.) The analysis in the emphasized language can be applied to local public school districts, and forms the basis for a discussion of the powers and duties of the local school districts.

75 Op. Att'y Gen. 251, 260 (1986)

This provision does not indicate whether this right is only available to those students who attend public school full-time. Because section 118.155 gives public school students the right to be released from school to obtain religious instruction during school hours, it could be argued that the right to attend public school is not conditioned on full-time attendance. If this is true, then the right to attend public school part-time should not be denied to parochial school students. The comparison, however, is fatally flawed by the distinction that the parochial school pupil has chosen to receive his or her basic education in a sectarian school. A parochial school cannot take a student's tuition and then send that student off to public school for instruction in the basic courses which it is itself obligated to provide in order to fall within the statutory definition of a "private school."

75 Op. Att'y Gen. 251, 260-261 (1986)

To the extent the nature of courses being provided are those previously discussed as being permissible under the constitution, section 120.12, which gives a school district the power of general supervision and management over buildings, implies the authority to allow parochial pupils to attend public school part-time. 53 Op. Att'y Gen. 187 (1964). This opinion, however, did not address the issue of whether a district is obligated to provide such services.

75 Op. Att'y Gen. 251, 261 (1986)

In response to the question of whether the state can provide for participation by private school children in Title IV programs if a local district refuses, or is legally unable to provide for their participation on an equitable basis, I stated:

75 Op. Att'y Gen. 251, 261 (1986)

Wisconsin has a firmly established policy of local control over elementary and secondary education. This policy is expressed throughout the statutes relating to education. For example, sec. 120.12(1), Stats., vests in the local school board the care, control and management of school district property and affairs. And sec. 120.49(1), Stats., authorizes school boards to establish and organize schools and prescribe courses of study. The proposal set forth in your sixth question to allow the state educational agency to provide for participation of private school children in Title IV programs in the event a local school district refuses to provide such programs is inconsistent with the policy of local control over education.

75 Op. Att'y Gen. 251, 261 (1986)

In addition, the Department of Public Instruction is without statutory authority to provide for participation of private school children in the place of a local school district which refuses or is legally unable to do so. For these same reasons your department may not supplant a local school district in the administration of Title IV programs.

75 Op. Att'y Gen. 251, 261 (1986)

64 Op. Att'y Gen. at 142-43. Therefore, I conclude the department could not obligate a district to provide access to courses to private school pupils.

75 Op. Att'y Gen. 251, 261-262 (1986)

School districts which receive federal funds under 20 U.S.C. 2701 (1982)

seq.

, the Elementary and Secondary Education Act of 1965, as amended, are required to make arrangements for participation in funded special educational programs by children of the district enrolled in private schools to the extent local educational agencies are not prohibited by law from providing such participation. 20 U.S.C. 2740 (1982). The receipt of such funds would thus present a circumstance under which school districts would be obligated to provide access to courses or activities to private school pupils. These funds, however, are only to be used for supplemental instructional services and cannot supplant instruction in regular classes.

See

Bennett v. Kentucky Dept. of Educ.

, 105 S. Ct. 1544 (1985). If the public school district incurs additional costs in permitting the pupil to participate in the selected courses or activities, such an arrangement again would be unconstitutional unless those costs are covered by federal funding which mandates provision of supplemental services to private pupils.