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

75 Op. Att'y Gen. 251, 251 (1986)
Schools and School Districts; Discussion of whether a private school pupil or a child in a home-based private educational program may participate in selected courses or activities of the public school district. A public school district may lease space in a sectarian school for holding classes for public school students. OAG 45-86

November 14, 1986

75 Op. Att'y Gen. 251, 251 (1986)
DR. HERBERT J. GROVER, State Superintendent
  Department of Public Instruction

75 Op. Att'y Gen. 251, 251 (1986)
  You have asked three questions:

75 Op. Att'y Gen. 251, 251 (1986)
  1.   May a school district permit a private school pupil or a child in a home-based private educational program to participate in selected courses or activities of the public school district?

75 Op. Att'y Gen. 251, 251 (1986)
  2.   What obligation does a public school district have to grant such permission? You also specifically inquire as to whether the answer to this question depends upon any of the following factors:

75 Op. Att'y Gen. 251, 251 (1986)
  a.   Whether the primary purpose of the program is to provide private or religious based education;

75 Op. Att'y Gen. 251, 251 (1986)
  b.   Whether the selected public school courses would be included in the criteria in sec. 118.165(1)(d), Stats.; or

75 Op. Att'y Gen. 251, 251 (1986)
  c.   Whether the public school district would incur additional costs in permitting the pupil to participate in the selected courses or activities?

75 Op. Att'y Gen. 251, 251 (1986)
  3.   May a Wisconsin public school district lease the use of a religious school facility where no religious activities are conducted during the daily periods of public school use, where religious symbols and artifacts are removed during the daily periods of public school use, where the public school use consists of public school teachers instructing public school students, and where a reasonable rental is paid for the use?

75 Op. Att'y Gen. 251, 251-252 (1986)
  The answer to your first question is yes, but with certain limitations as set forth in the discussion below. The answer to your second question is that the obligation of a school district is to provide an "equal opportunity for education to all children in the district." Once the statutory opportunities required by the state are offered, the local district may provide additional programs to all children in the district provided that such programs are within the parameters of the first amendment religion clause of the United States Constitution and article I, section 18 of the Wisconsin Constitution. The three factors you delineate with respect to your second question are important factors in determining the legality of providing for the participation of private or home-based pupils. In response to the third question, I conclude that such an arrangement would not violate the state or federal constitution and would be legal so long as statutory procedures for leasing school sites are followed.

75 Op. Att'y Gen. 251, 252 (1986)
I.
PARTICIPATION OF A PRIVATE SCHOOL PUPIL IN COURSES AND

ACTIVITIES OF A PUBLIC SCHOOL DISTRICT

75 Op. Att'y Gen. 251, 252 (1986)
  The propriety of the arrangements described in your questions depends upon the application of certain state and federal constitutional provisions. Because in Wisconsin the majority of private schools are religious schools,¯1 the relevant constitutional provisions are the first amendment to the United States Constitution, and article I, section 18 and article X, section 3 of the Wisconsin Constitution.

75 Op. Att'y Gen. 251, 252 (1986)
A. The United States Constitution

75 Op. Att'y Gen. 251, 252 (1986)
  The first amendment to the United States Constitution provides in part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." This provision applies to the states through the fourteenth amendment. See Cantwell v. State of Connecticut, 310 U.S. 296 (1940).

75 Op. Att'y Gen. 251, 252-253 (1986)
  In determining the constitutionality of a statute under the establishment clause of the first amendment, three criteria must be applied: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion... finally, the statute must not foster 'an excessive government entanglement with religion' [citations omitted]." Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). The Wisconsin Supreme Court has adopted this three-part test. State ex rel. Warren v. Nusbaum, 64 Wis. 2d 314, 219 N.W.2d 577 (1974).

75 Op. Att'y Gen. 251, 253 (1986)
1.   Purpose

75 Op. Att'y Gen. 251, 253 (1986)
  The arrangement you describe of permitting private school or private home-program pupils to participate in selected courses or activities of the public school district would not appear to violate the first criterion of the three-part test set forth above. Allowing such participation would have the permissible secular purpose of advancing the education of all the children in the state. "The State has a substantial and legitimate interest in insuring that its youth receive an adequate secular education." Levitt v. Committee for Public Education & Religious Lib., 413 U.S. 472, 479-80 n.7 (1973). The difficulties lie with the benefits which such arrangements confer on religious institutions and the potential for entanglement of church and state.

75 Op. Att'y Gen. 251, 253 (1986)
2.   Effect

75 Op. Att'y Gen. 251, 253 (1986)
  The United States Supreme Court has recently had occasion to look at the question of what limits exist on government's power to provide educational services to sectarian schools. These cases focused on whether the arrangements at issue had a principal or primary effect of advancing religion and whether they fostered "excessive entanglement" between church and state.

75 Op. Att'y Gen. 251, 253-254 (1986)

  In Grand Rapids School Dist. v. Ball, 105 S. Ct. 3216 (1985), which involved the provision of classes to nonpublic pupils at public expense in classrooms located in and leased from sectarian schools, the Court focuses on the "primary effects" test. These programs were invalidated by the Court because they impermissibly advanced the sectarian religious mission of the parochial schools, although they did have the permissible secular purpose of providing education. The Court found three ways in which the programs advanced religion: First, "state-paid instructors, influenced by the pervasively sectarian nature of the religious schools in which they work, may subtly or overtly indoctrinate the students in particular religious tenets at public expense." Second, "state-provided instruction in the religious school buildings threatens to convey a message of state support for religion to students and to the general public." Third, "the programs in effect subsidize the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects." Grand Rapids, 105 S. Ct. at 3230. Three subfactors are thus identified within the "effects" test: indoctrination, symbolism and subsidization.

75 Op. Att'y Gen. 251, 254 (1986)
  A state law may have a legitimate "primary effect" of the provision of secular education to all students, but still be unconstitutional because it has an additional "primary effect" of advancing religion. Nyquist, 413 U.S. at 783-84 n.39. The United States Supreme Court has distinguished between those cases in which state aid has only an indirect or incidental benefit upon religious institutions and those that provide direct and substantial support which advances a sectarian enterprise. Indirect and incidental benefits to church-related schools do not violate the constitutional prohibition against the establishment of religion. Meek v. Pittenger, 421 U.S. 349, 365 (1975). In accord, see Everson v. Board of Education of Ewing Tp., 330 U.S. 1 (1947), (Reimbursement of bus fare to parochial schools is indirect aid only and, therefore, does not violate the constitution). But see Committee for Public Ed. & Religious Lib. v. Nyquist, 413 U.S. 756, 783 n.39 (1973) (striking down a New York statute providing for payment out of public funds for maintenance and repair for private schools, tuition reimbursement to private school pupils and income tax benefits to parents of children attending private school), and Sloan v. Lemon, 413 U.S. 825 (1973) (holding that a Pennsylvania statute providing for reimbursement of tuition paid by parents who send their children to nonpublic schools had the impermissible effect of advancing religion and was, therefore, unconstitutional under the establishment clause).

75 Op. Att'y Gen. 251, 254 (1986)
  In Wolman v. Walter, 433 U.S. 229 (1977), the Court upheld the constitutionality of an Ohio program whereby state funds were expended to provide therapeutic guidance and remedial services for nonpublic students in public schools or mobile units located off the nonpublic school premises. The Court explained why these types of programs were not in the nature of aid having a primary effect of advancing religious institutions:

75 Op. Att'y Gen. 251, 254-255 (1986)
  The reason for considering diagnostic services to be different from teaching or counseling is readily apparent. First, diagnostic services, unlike teaching or counseling, have little or no educational content and are not closely associated with the educational mission of the nonpublic school. Accordingly, any pressure on the public diagnostician to allow the intrusion of sectarian views is greatly reduced. Second, the diagnostician has only limited contact with the child, and that contact involves chiefly the use of objective and professional testing methods to detect students in need of treatment. The nature of the relationship between the diagnostician and the pupil does not provide the same opportunity for the transmission of sectarian views as attends the relationship between teacher and student or that between counselor and student.

75 Op. Att'y Gen. 251, 255 (1986)
Wolman, 433 U.S. at 244. In addition, the Court emphasized that these services were offered under circumstances which reflected neutrality, i.e., off the premises of private schools. Also see Nyquist, 413 U.S. at 783 n.39, and Meek, 421 U.S. at 371 n.21.

75 Op. Att'y Gen. 251, 255 (1986)
  Similarly, neither of the subfactors expressed in Grand Rapids of indoctrination or symbolism would appear to be present where private school students are allowed to attend limited classes within public schools, so long as those classes are not of a religious nature.

75 Op. Att'y Gen. 251, 255 (1986)
  In Grand Rapids, the Court was notably concerned with the possibility that public schools could gradually take on the entire responsibility for teaching secular subjects to religious school pupils, thereby providing a substantial subsidy to the nonpublic school. Private schools in Wisconsin are required by statute to teach certain basic secular courses. See sec. 118.165(1)(d), Stats. Instruction in these subjects is essential to the existence of these schools and their recognition by the state. If the state directly assumes part of the parochial schools' education requirements, this inevitably provides a substantial subsidy to a religious institution. The more courses the public school district allows the private school pupil to attend, the more subsidization is occurring. Direct aid in meeting this necessary function is prohibited just as provision of instructional material is prohibited.

75 Op. Att'y Gen. 251, 255 (1986)
The very purpose of many [religious] schools is to provide an integrated secular and religious education; the teaching process is, to a large extent, devoted to the inculcation of religious values and belief. See Lemon v. Kurtzman, 403 U.S., at 616-617, 91 S.Ct. [2105], at 2113. Substantial aid to the educational function of such schools, accordingly, necessarily results in aid to the sectarian school enterprise as a whole. '[T]he secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined.'

75 Op. Att'y Gen. 251, 255 (1986)
Meek, 421 U.S. at 366.

75 Op. Att'y Gen. 251, 256 (1986)
3.   Entanglement

75 Op. Att'y Gen. 251, 256 (1986)
  In the second case, Aquilar v. Felton, 105 S. Ct. 3232 (1985), the Court held that a program in which New York City used Title I funds to pay salaries of public school employes to teach in parochial schools violated the establishment clause. The Court reasoned that even if this aid did not have the primary effect of advancing religion, the fact that the program provided for a system of monitoring the content of publicly funded classes necessarily resulted in an excessive entanglement of church and state. The Court's discussion of the entanglement test analyzed both the sectarian environment itself and the conduct of state personnel inside the sectarian school.

75 Op. Att'y Gen. 251, 256 (1986)
  The administrative cooperation that is required to maintain the educational program at issue here entangles Church and State in still another way that infringes interests at the heart of the Establishment Clause. Administrative personnel of the public and parochial school systems must work together in resolving matters related to schedules, classroom assignments, problems that arise in the implementation of the program, requests for additional services, and the dissemination of information regarding the program. Furthermore, the program necessitates "frequent contacts between the regular and the remedial teachers (or other professionals), in which each side reports on individual student needs, problems encountered, and results achieved."

75 Op. Att'y Gen. 251, 256 (1986)
Aquilar, 105 S. Ct. at 3239.

75 Op. Att'y Gen. 251, 256 (1986)
  Entanglement can flow from the need for frequent administrative supervision or from the potential for religious-political strife such involvement may generate. For example, in Meek, the teaching of special education courses in parochial schools by public school teachers was held to violate the first amendment to the United States Constitution because the Court concluded it was administratively impossible to keep the publicly provided program neutral and nonsectarian, and to politically maintain the program without dividing the community along religious lines.

75 Op. Att'y Gen. 251, 256-257 (1986)
  Allowing private school pupils to attend classes in public schools, if the courses are not included within the criteria found in section 118.165(1)(d), would not violate the first amendment to the United States Constitution. The primary purpose of the program would not be to provide religious based education but to advance the education of all children of the state. There would be little risk of subtle indoctrination in religious tenets by teachers, or the possible symbolic message of support conveyed by providing instruction on the premises of a sectarian institution. In addition, there would be no reason for frequent contact between administrative personnel of the public and private school systems involved, nor should the community have reason to oppose such arrangements. Finally, the state would not be subsidizing sectarian schools by providing the basic secular courses private schools are required to teach.

75 Op. Att'y Gen. 251, 257 (1986)
B. The Wisconsin Constitution

75 Op. Att'y Gen. 251, 257 (1986)
  Article I, section 18 of the Wisconsin Constitution reads as follows:

75 Op. Att'y Gen. 251, 257 (1986)
  The right of every man to worship Almighty God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any ministry, against his consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.¯2

75 Op. Att'y Gen. 251, 257-258 (1986)
  Article I, section 18 is the freedom of worship section of the Wisconsin Constitution. The provisions of both the first amendment and article I, section 18 of the Wisconsin Constitution "'are intended and operate to serve the same dual purpose of prohibiting the "establishment" of religion and protecting the "free exercise" of religion....'" State ex rel. Holt v. Thompson, 66 Wis. 2d 659, 676, 225 N.W.2d 678 (1975), quoting State ex rel. Warren v. Nusbaum, 55 Wis. 2d 316, 322, 198 N.W.2d 650 (1972). The test for an establishment clause violation is basically the same under both constitutions. American Motors Corp. v. ILHR Dept., 93 Wis. 2d 14, 29- 30, 286 N.W.2d 847 (Ct. App. 1979). However, the language of article I, section 18 of the Wisconsin Constitution is more specific than that found in the establishment and free exercise clauses in the first amendment. It contains the additional language: "[N]or shall any money be drawn from the treasury for the benefit of religious societies...." The added "for the benefit of" language in the state constitution may require additional analysis. See 64 Op. Att'y Gen. 75, 78 (1975), and cases cited therein. However, the Wisconsin Supreme Court has explained:

75 Op. Att'y Gen. 251, 258 (1986)
This language has been construed by this court as encompassing the "primary effect test" such that:

75 Op. Att'y Gen. 251, 258 (1986)
  "'The crucial question... not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.'" State ex rel. Warren v. Nusbaum, supra, at page 333, quoting Tilton v. Richardson, supra, at page 679.

75 Op. Att'y Gen. 251, 258 (1986)
State ex rel. Warren v. Nusbaum, 64 Wis. 2d 314, 328, 219 N.W.2d 577 (1974).

75 Op. Att'y Gen. 251, 258 (1986)
  A number of attorney general opinions have addressed the scope of article I, section 18 of the Wisconsin Constitution. See 55 Op. Att'y Gen. 124 (1966) (article I, section 18 of the Wisconsin Constitution prohibits the use of funds received under Title I of the Elementary and Secondary Education Act to pay salaries of any persons teaching in church-affiliated schools, whether or not they were public school teachers sent to such schools); 64 Op. Att'y Gen. 136 (1975). (To confer Title I benefits on a parochial school would violate article I, section 18 of the Wisconsin Constitution, which provides, in part: "[N]or shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries."); 64 Op. Att'y Gen. 75 (1975) (a school district can provide health and welfare services to students attending private schools, but not educational services).

75 Op. Att'y Gen. 251, 258 (1986)
  In 64 Op. Att'y Gen. 139 (1975), however, I concluded that funds under section 406 of Title IV of the Elementary and Secondary Education Act may be spent on "dual enrollment" or "shared time" programs, where both public and private students are permitted to participate, as long as the services are provided on public school premises.

75 Op. Att'y Gen. 251, 258-259 (1986)
Implicit in any dual enrollment program is the requirement that both public and private school students be permitted to participate in the same program. Subject to this condition and the condition that the services be rendered on the premises of a public school, it is permissible for a public school district to spend money to provide instructional programs and services to private school children and teachers.

75 Op. Att'y Gen. 251, 259 (1986)
64 Op. Att'y Gen. at 142.

75 Op. Att'y Gen. 251, 259 (1986)
  Based upon case law which has developed since that opinion, it should be noted that the provision of such programs and services to private school children are permitted only so long as those services are in the nature of remedial programs, such as the instruction mandated by federal laws for those school districts receiving federal funds, or supplemental courses, and not those courses mandated by section 118.165(1)(d).

75 Op. Att'y Gen. 251, 259 (1986)
  To the extent that the courses or activities which you propose to allow private school pupils to participate in are in the nature of therapeutic, guidance or remedial programs, or supplemental instruction, I conclude that such an arrangement would not violate federal or state constitutional prohibitions. See Wolman, Meek and Nusbaum. However, if the selected courses are those which provide basic education in the areas mandated by section 118.165(1)(d), i.e., reading, writing, mathematics, social studies and science, I believe an arrangement permitting the attendance of private school pupils in publicly provided courses would unconstitutionally have the primary effect of advancing religion. In order to exist, private schools are required to provide these course subjects. If the state provides instruction in such areas for sectarian schools, this necessarily reduces their education costs and frees their resources for religious purposes. Such a result is not permitted by either the state or federal constitutions.

75 Op. Att'y Gen. 251, 259 (1986)
II.

75 Op. Att'y Gen. 251, 259 (1986)
OBLIGATION OF SCHOOL DISTRICTS

75 Op. Att'y Gen. 251, 259 (1986)
  Article X, section 3 of the Wisconsin Constitution gives all children between the ages of four and twenty years the right to a free public education.

75 Op. Att'y Gen. 251, 259 (1986)
  Article X, section 3 provides:

75 Op. Att'y Gen. 251, 259-260 (1986)
  District schools; tuition; sectarian instruction; released time. SECTION 3. [As amended April 1972] The legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable; and such schools shall be free and without charge for tuition to all children between the ages of 4 and 20 years; and no sectarian instruction shall be allowed therein; but the legislature by law may, for the purpose of religious instruction outside the district schools, authorize the release of students during regular school hours. [1969 J.R. 37, 1971 J.R. 28, vote April 1972]

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.