AB199: Bill Text

Joint Legislative Council prefatory note: This bill was prepared for the Joint Legislative Council's special committee on state-tribal relations.

GENERAL BACKGROUND

Current Law

Private Schools

Under current law, a "private school" is defined in s. 115.001 (3r), stats., for the purposes of the K-12 education statutes (chs. 115 to 121, stats.) as an institution with a private educational program that: (1) meets all of the criteria under s. 118.165 (1), stats.; or (2) is determined to be a private school by the state superintendent of public instruction (state superintendent) under s. 118.167, stats., because evidence is presented that it meets or exceeds the criteria in s. 118.165 (1), stats. Those criteria are that the educational program: (1) has as its primary purpose providing private or religious-based education; (2) is privately controlled; (3) provides at least 875 hours of instruction in each school year; (4) has a sequentially progressive curriculum of fundamental instruction in reading, language arts, mathematics, social studies, science, and health; (5) is not operated to avoid or circumvent the compulsory attendance laws; and (6) has its pupils return annually to their homes for at least 2 months of summer vacation or the institution is licensed as a child welfare agency.

Current law imposes certain requirements on private schools and provides certain benefits to private schools and private school pupils. A tribally operated school is not a private school.

Tribally Operated Schools

Under current Wisconsin statutes, tribally operated schools are dealt with only in subch. IV, ch. 115, stats., relating to the American Indian language and culture education program. In that subchapter, an "alternative school" is defined as "any nonsectarian private school or tribally operated school in this state which complies with the requirements of 42 USC 2000d [relating to prohibiting exclusion from participation, denial of benefits, or discrimination based on race, color, or national origin] and in which at least 75% of the pupils enrolled are American Indians". [s. 115.71 (1), stats. (emphasis added).]

Subchapter IV, ch. 115, then provides that any school district enrolling American Indian pupils or any "alternative school" may, after developing a plan containing certain elements and appointing a parent advisory committee, establish, on a voluntary basis, an American Indian language and culture education program which may contain certain elements. These schools are required to keep certain records, and the state superintendent is required to periodically assess the needs of the program and evaluate available resources and programs. However, the programs of alternative schools can be evaluated only with the permission of the alternative school [s. 115.74 (1) (b), stats.]; and the assessment and evaluation can be "performed on Indian reservations and in other Indian communities recognized by the federal government only in conjunction with, or with the permission of, the respective tribal governments". [s. 115.74 (3), stats.]

A tribally operated school does not need authorization from the state to create an educational program related to American Indian language and culture. Rather, subch. IV, ch. 115, including its requirements to keep records, was enacted in connection with providing state categorical aid to a school district or alternative school that provided a program that met the criteria in subch. IV, ch. 115. State aid for such programs was eliminated by 2003 Wisconsin Act 33.

Tribally Operated Schools in Wisconsin

Currently, 3 schools in Wisconsin come under the tribally operated schools component of the "alternative school" definition in s. 115.71 (1), stats. They are the: Menominee Tribal School; Oneida Nation of Wisconsin Schools; and Lac Courte Oreilles Tribal School. (The Bad River Band of Lake Superior Chippewa Indians previously operated the Mashkiisiibii Tribal School, but that school no longer exists.) These schools have contracts with and are funded, in full or in part, by the bureau of Indian affairs (BIA).

Currently it appears that one school in Wisconsin meets the "nonsectarian private school...in which at least 75% of the pupils enrolled are American Indians" component of the "alternative school" definition in s. 115.71 (1), stats. It is the Indian Community School of Milwaukee, Inc. It appears that the state statutes dealing with private schools already apply to this school, and this bill does not affect it.

Authority of the State with Regard to Tribally Operated Schools

In general, state civil regulatory laws do not apply to a tribe or a member of that tribe on the tribe's reservation or off-reservation trust land unless an act of congress, a treaty, or case law (that is, decisions by the courts) provides that the state law is applicable. Most K-12 education laws likely would be considered by the courts to be civil regulatory laws. It appears that neither an act of congress nor any treaty has authorized the state to apply its civil regulatory education laws to a tribal school that is located on a tribe's reservation or off-reservation trust land. As for whether case law does so, court decisions suggest that, if a matter were litigated, a court would apply a balancing of interests test and hold that a state civil regulatory education law applies to a tribal school only if the state interests outweigh the tribal and federal interests. That analysis depends on the facts surrounding each individual statute; thus, there is no universal answer as to whether a state civil regulatory law applies to a tribal school.

However, in general, it appears that, with respect to most state K-12 education laws, the state does not have authority to impose such laws on tribal schools. Moreover, a tribe may choose to assert sovereign immunity if a legal action were filed against the tribal school or tribal school officials to enforce any such law.

Nonetheless, a state may choose to provide funding or other benefits to a tribal school and may condition such funding or benefits on meeting certain prerequisites to be eligible for the funding or benefits.

THE BILL

The bill defines a "tribal school" in s. 115.001 (16), stats., as an institution with an educational program that has as its primary purpose providing education in any grade or grades from kindergarten to 12 and that is controlled by the elected governing body of a federally recognized American Indian tribe or band in Wisconsin or by a tribal educational authority established under the laws of a federally recognized American Indian tribe or band in Wisconsin. That definition then applies in chs. 115 to 121 (statutes relating to K-12 education) under s. 115.001 (intro.), stats. The bill then uses the same definition by cross-reference in statutes outside chs. 115 to 121, stats.

Private School References-Benefits

The bill amends statutes that refer specifically to private schools, private school employees, or private school pupils and provide a benefit or protection to them, with the exception of statutes relating to: transportation; special education; eligibility for bonding for certain building projects through the Wisconsin Health and Educational Facilities Authority; and statutes in ch. 119, stats., that refer to private schools (since ch. 119 relates only to the Milwaukee Public Schools). In general, the amendments add references to tribal schools, tribal school employees, or tribal school pupils in those statutes.

Private School References-Benefit Linked to Requirement

In some cases, the bill includes language relating to tribal schools that is not identical to current statutes relating to private schools. These relate to statutes in which a requirement is integrally linked to a benefit provided--for example, statutes allowing a private school to receive certain confidential records but prohibiting redisclosure of the record. For those statutes, the bill generally extends the benefit to a tribal school that chooses to comply with the required provision.

Private School References-Requirements

With respect to statutes that explicitly impose requirements on private schools unrelated to a benefit, the bill does not add a reference to tribal schools. Such statutes include requirements to: make a report to the department of public instruction (DPI) about enrollment; report to DPI charges and convictions of certain crimes and dismissals and resignations related to immoral conduct of a person licensed by DPI and employed by the school; display the flag and offer the pledge of allegiance or national anthem; have a first aid kit; conduct fire drills; distribute information about meningococcal disease; establish school safety zones; prohibit the use of a pupil's social security number as a pupil identification number; have periodic lead inspections in kindergarten; and abide by restaurant regulations if food is brought in under contract.

Generic School References

The bill amends several statutes that refer generically to schools without explicitly referring to public schools, private schools, or tribal schools to make clear that if a benefit applies to the school, the benefit also applies to tribal schools. The bill does not amend statutes that impose a requirement generically on schools, including private schools, to impose the requirement on tribal schools, for example, statutes relating to excluding children who have not met the immunization or waiver of immunization requirements. Whether such statutes apply to tribal schools is an issue to be resolved by the courts.

The provisions of the bill are explained in Notes following the Sections.

AB199, s. 1 Section 1. 6.28 (2) (c) of the statutes is amended to read:

AB199,5,9 6.28 (2) (c) The principal of any private high school having or of any tribal school, as defined in s. 115.001 (16), that operates high school grades that has a substantial number of students residing in a municipality may request the municipal clerk to establish registration dates when a special registration deputy will be present in the high school, or to appoint a special school registration deputy in accordance with par. (b). The clerk shall establish registration dates or appoint a special school registration deputy in the high school if the clerk determines the school to have a substantial number of students residing in the municipality.

Note: Permits a tribal school with high school grades that has a substantial number of students to ask the municipal clerk to conduct voter registration at the high school.

AB199, s. 2 Section 2. 7.30 (2) (am) of the statutes is amended to read:

AB199,6,12 7.30 (2) (am) Except as otherwise provided in this paragraph, a pupil who is 16 or 17 years of age and who is enrolled in grades 9 to 12 in a public or private school or in a tribal school, as defined in s. 115.001 (16), may serve as an inspector at the polling place serving the pupil's residence, with the approval of the pupil's parent or guardian. Any pupil who has at least a 3.0 grade point average or the equivalent may serve. In addition, a school board or governing body of a private school or tribal school may establish criteria for service by a pupil who does not have at least a 3.0 grade point average or the equivalent. A pupil may serve as an inspector at a polling place under this paragraph only if at least one election official at the polling place other than the chief inspector is a qualified elector of this state. No pupil may serve as chief inspector at a polling place under this paragraph. Before appointment by any municipality of a pupil as an inspector under this paragraph, the municipal clerk shall obtain written authorization from the pupil's parent or guardian for the pupil to serve for the election for which he or she is appointed. In addition, if a pupil does not have at least a 3.0 grade point average or the equivalent, the municipal clerk shall obtain written certification from the principal of the school where the pupil is enrolled that the pupil meets any criteria established by the school board or governing body for service as an inspector. Upon appointment of a pupil to serve as an inspector, the municipal clerk shall notify the principal of the school where the pupil is enrolled of the name of the pupil and the date of the election at which the pupil has been appointed to serve.

Note: Permits certain tribal school pupils to serve as inspectors at a polling place under certain conditions.

AB199, s. 3 Section 3. 15.377 (4) (f) of the statutes is amended to read:

AB199,6,15 15.377 (4) (f) Representatives of private schools and, charter schools, and tribal schools, as defined in s. 115.001 (16).

Note: Provides that representatives of tribal schools may serve on the DPI council on special education.

AB199, s. 4 Section 4. 15.377 (8) (c) 14. of the statutes is created to read:

AB199,6,19 15.377 (8) (c) 14. One person licensed as a teacher and actively employed in a tribal school, as defined in s. 115.001 (16), recommended by a federally recognized American Indian tribe or band in this state that has a tribal school.

Note: Current law permits one licensed teacher actively employed in a private school, recommended by the Wisconsin council of religious and independent schools, to serve on the DPI professional standards council for teachers. The council currently has 19 members who, with one limited exception, are appointed for 3-year terms. With 3 exceptions, a vacancy in any category is filled by having the entity that is authorized to make a recommendation in that category provide 3 names to the state superintendent, who then makes the selection for that category.

The bill increases the number of members to 20 by adding a provision for a licensed teacher employed by a tribal school. The state superintendent must select this teacher based on the recommendation of a tribe that has a tribal school.

AB199, s. 5 Section 5 . 15.57 (3) of the statutes is amended to read:

AB199,7,3 15.57 (3) One representative of public schools and one representative of private schools or of tribal schools, as defined in s. 115.001 (16), appointed for 4-year terms.

Note: The educational communications board has 16 members who, with limited exceptions not applicable to this provision, are nominated by the governor and confirmed by the senate. This provision permits the governor to nominate a representative who may represent either a tribal school or private school.

AB199, s. 6 Section 6 . 16.971 (15) of the statutes is amended to read:

AB199,7,7 16.971 (15) Provide private schools and tribal schools, as defined in s. 115.001 (16), with telecommunications access under s. 16.997 and contract with telecommunications providers to provide that access.

Note: Requires the department of administration (DOA) to include tribal schools in the educational telecommunication access program under s. 16.997, stats., which provides access to data lines and video links under certain conditions to certain educational agencies (including private schools) at certain costs. This program is the part of the technology for educational achievement (TEACH) program that applies to private schools.

AB199, s. 7 Section 7 . 16.972 (1) (cm) of the statutes is created to read:

AB199,7,10 16.972 (1) (cm) "Qualified tribal school" means a tribal school as defined in s. 115.001 (16).

AB199, s. 8 Section 8 . 16.972 (2) (b) of the statutes is amended to read:

AB199,8,10 16.972 (2) (b) Except as provided in par. (a), provide such computer services and telecommunications services to local governmental units and the broadcasting corporation and provide such telecommunications services to qualified private schools, tribal schools, postsecondary institutions, museums, and zoos, as the department considers to be appropriate and as the department can efficiently and economically provide. The department may exercise this power only if in doing so it maintains the services it provides at least at the same levels that it provides prior to exercising this power and it does not increase the rates chargeable to users served prior to exercise of this power as a result of exercising this power. The department may charge local governmental units, the broadcasting corporation, and qualified private schools, tribal schools, postsecondary institutions, museums, and zoos, for services provided to them under this paragraph in accordance with a methodology determined by the department. Use of telecommunications services by a qualified private school, tribal school, or postsecondary institution shall be subject to the same terms and conditions that apply to a municipality using the same services. The department shall prescribe eligibility requirements for qualified museums and zoos to receive telecommunications services under this paragraph.

AB199, s. 9 Section 9 . 16.974 (2) and (3) of the statutes are amended to read:

AB199,8,17 16.974 (2) Subject to s. 16.972 (2) (b), enter into and enforce an agreement with any agency, any authority, any unit of the federal government, any local governmental unit, or any entity in the private sector , or any tribal school, as defined in s. 115.001 (16), to provide services authorized to be provided by the department to that agency, authority, unit, or entity, or tribal school at a cost specified in the agreement.

AB199,9,6 (3) Develop or operate and maintain any system or device facilitating Internet or telephone access to information about programs of agencies, authorities, local governmental units, or entities in the private sector, or any tribal schools, as defined in s. 115.001 (16), or otherwise permitting the transaction of business by agencies, authorities, local governmental units, or entities in the private sector, or tribal schools by means of electronic communication. The department may assess executive branch agencies, other than the board of regents of the University of Wisconsin System, for the costs of systems or devices relating to information technology or telecommunications that are developed, operated, or maintained under this subsection in accordance with a methodology determined by the department. The department may also charge any agency, authority, local governmental unit, or entity in the private sector , or tribal school for such costs as a component of any services provided by the department to that agency, authority, local governmental unit, or entity, or tribal school.

Note: Sections 7 to 9 permit DOA to provide telecommunications services to tribal schools that DOA considers appropriate and charge for such services. Also see s. 20.505 (1) (is), stats., below.

AB199, s. 10 Section 10. 16.9785 of the statutes is amended to read:

AB199,9,14 16.9785 Purchases of computers by teachers. The department shall negotiate with private vendors to facilitate the purchase of computers and other educational technology, as defined in s. 24.60 (1r), by public and, private, and tribal elementary and secondary school teachers for their private use. The department shall attempt to make available types of computers and other educational technology under this section that will encourage and assist teachers in becoming knowledgeable about the technology and its uses and potential uses in education.

Note: Includes tribal school teachers in the DOA program to facilitate the purchase of computers by school teachers.

AB199, s. 11 Section 11. 16.99 (2g) of the statutes is amended to read:

AB199,9,21 16.99 (2g) "Educational agency" means a school district, charter school sponsor, juvenile correctional facility, private school, tribal school, as defined in s. 115.001 (16), cooperative educational service agency, technical college district, private college, public library system, public library board, public museum, the Wisconsin Center for the Blind and Visually Impaired, or the Wisconsin Educational Services Program for the Deaf and Hard of Hearing.

Note: Includes tribal schools under the educational telecommunications access program which is part of the TEACH program. See s. 16.971 (15), stats., above.

AB199, s. 12 Section 12. 20.505 (1) (is) of the statutes is amended to read:

AB199,10,7 20.505 (1) (is) Information technology and communications services; nonstate entities. From the sources specified in ss. 16.972 (2) (b) and (c), 16.974 (2) and (3), and 16.997 (2) (d), to provide computer, telecommunications, electronic communications, and supercomputer services to state authorities, units of the federal government, local governmental units, tribal schools, and entities in the private sector, the amounts in the schedule.

Note: Amends the appropriation to DOA for technology and communications services provided to tribal schools to reflect the amendment to ss. 16.972 (2) (b) and 16.974 (2) and (3), stats., above.

AB199, s. 13 Section 13. 27.01 (7) (c) 10. of the statutes is amended to read:

AB199,10,19 27.01 (7) (c) 10. Any motor vehicle operated for the purpose of transporting pupils to or from curricular or extracurricular activities of a public or private school or, a home-based private educational program under s. 118.15 (4), or a tribal school, as defined in s. 115.001 (16). The operator of a motor vehicle transporting pupils under this subdivision shall possess and exhibit for inspection a written authorization from an administrator of the school or home-based private educational program indicating that admission to the vehicle admission area is part of an official school or home-based private educational program function and indicating the date for which the authorization is applicable. A separate authorization is required for each date on which the motor vehicle is admitted to the vehicle admission area under this subdivision.

Note: Exempts a motor vehicle transporting tribal school pupils to a state park or recreational area from the requirement to display a state park admission receipt.

AB199, s. 14 Section 14. 28.06 (1) of the statutes is amended to read:

AB199,11,5 28.06 (1) Limitation. Only planting stock of species and sizes suitable for forest and woodlot planting and for planting by school pupils, including pupils at a tribal school, as defined in s. 115.001 (16), to celebrate arbor day under s. 118.025 shall be produced in state forest nurseries. The department may employ labor at prevailing local wages for nursery operation or reforestation.

Note: Current law provides that the state forest nurseries may plant stock suitable for planting by school pupils to celebrate arbor day and authorizes distribution of the stock for arbor day plantings by school pupils. The bill specifies that tribal school pupils are included.

AB199, s. 15 Section 15. 29.301 (1) (a) of the statutes is amended to read:

AB199,11,9 29.301 (1) (a) In this subsection, "school" means a public or private elementary or secondary school, including a charter school, a tribal school, as defined in s. 115.001 (16), or a technical college.

Note: Adds tribal school to the definition of "school" that is used in s. 29.301 (1) (b), stats., which prohibits hunting within 1,700 feet of certain facilities, including a school.

AB199, s. 16 Section 16. 30.74 (1) (a) of the statutes is amended to read:

AB199,11,17 30.74 (1) (a) The department shall create comprehensive courses on boating safety and operation. These courses shall be offered in cooperation with schools, including tribal schools, as defined in s. 115.001 (16), private clubs and organizations, and may be offered by the department in areas where requested and where other sponsorship is unavailable. The department shall issue certificates to persons 10 years of age or older successfully completing such courses. The department shall prescribe the course content and the form of the certificate.

Note: Requires the department of natural resources to create boating safety courses and offer them in cooperation with, among others, schools, including tribal schools.

AB199, s. 17 Section 17. 36.11 (36m) of the statutes is amended to read:

AB199,12,7 36.11 (36m) School safety research. The board shall direct the schools of education and other appropriate research-oriented departments within the system, to work with the technical college system board under s. 38.04 (27), school districts, private schools, tribal schools, as defined in s. 115.001 (16), and the department of public instruction to present to school districts and , private schools, and tribal schools the results of research on models for and approaches to improving school safety and reducing discipline problems in schools and at school activities.

Note: Requires the board of regents of the University of Wisconsin (UW) system to direct the UW schools of education to work with tribal schools, among others, on researching improving school safety and reducing school discipline problems and to share with tribal schools the results of such research.

AB199, s. 18 Section 18. 38.001 (3) (a) of the statutes is amended to read:

AB199,12,12 38.001 (3) (a) 1. Contract with secondary schools, including tribal schools, to provide educational opportunities for high school age students in order to enhance their potential for benefiting from postsecondary education and for obtaining employment.

AB199,12,15 2. Coordinate and cooperate with secondary schools, including tribal schools, to facilitate the transition of secondary school students into postsecondary technical college education through curriculum articulation and collaboration.

Note: Provides that the purposes of the technical college system include contracting, coordinating, and cooperating with tribal schools.

AB199, s. 19 Section 19. 38.01 (9m) of the statutes is created to read:

AB199,12,17 38.01 (9m) "Tribal school" has the meaning given in s. 115.001 (16).

AB199, s. 20 Section 20. 38.04 (27) of the statutes is amended to read:

AB199,13,3 38.04 (27) School safety. The board shall work with schools of education and other departments of the University of Wisconsin System under s. 36.11 (36m), school districts, private schools, tribal schools, and the department of public instruction to present to school districts and , private schools, and tribal schools the results of research on models for and approaches to improving school safety and reducing discipline problems in schools and at school activities.

Note: Requires the technical college system board to additionally work with tribal schools on researching improving school safety and reducing school discipline problems and to share with tribal schools the results of such research.

AB199, s. 21 Section 21. 38.14 (3) (a) and (bm) of the statutes are amended to read: