The provision for the transportation, at public expense, of students to and from private schools on an attendance area basis is constitutional. Vanko v. Kahl, 52 Wis. 2d 206
, 188 N.W.2d 460
For purposes of sub. (4) [now sub. (1)], and in the absence of fraud or collusion, when a religious school demonstrates by its corporate charter and bylaws that it is independent of, and unaffiliated with, a religious denomination, further inquiry by the state would violate Art. I, sec. 18. Holy Trinity Community School, Inc. v. Kahl, 82 Wis. 2d 139
, 262 N.W.2d 210
As construed by the Wisconsin Supreme Court, sub. (1) is a facially neutral and generally applicable law that deprives all private schools—religious and secular alike—of receiving transportation funding already claimed by another school affiliated with the same group or organization. Therefore, the defendants did not violate the free exercise clause of the 1st amendment when they denied a Catholic private school's busing application in reliance on sub. (1) because another school shared its institutional affiliation and served the same catchment zone. St. Augustine School v. Evers, 906 F.3d 591
In applying the test of affiliation with a single sponsoring group under sub. (1), state officials must accept a religious organization's self-characterization. In this case, the defendants did not consider the private school's theology or religious practices in violation of the establishment clause of the 1st amendment. Rather, the defendants read and credited the school's statements on its website and busing request form that the school was a Catholic school. The defendants were not required to consider statements in the school's articles of incorporation and bylaws, which purportedly would have shown that the school's leadership disclaimed affiliation with the Catholic Church. St. Augustine School v. Evers, 906 F.3d 591
First amendment-based attacks on Wisconsin “attendance area" statutes. 1980 WLR 409.
Vehicle, operator and driver requirements. 121.52(1)(a)
Rules governing the design, construction, inspection and operation of school buses adopted by the secretary of transportation under s. 110.06 (2)
shall by reference be made part of any contract for the transportation of pupils.
The school board may adopt additional rules, not inconsistent with law or with rules of the secretary of transportation or the state superintendent, for the protection of the pupils or to govern the conduct of the person in charge of the motor vehicle used for transportation of pupils for compensation.
All drivers of motor vehicles owned by the school district and used for the transportation of pupils shall be under written contract with the school board of the district.
The owner or lessee of all privately owned motor vehicles transporting pupils for compensation shall be under written contract with the school board of the district for which such transportation is provided. The contract shall require the owner or lessee to perform any action necessary for the owner or lessee or the school board to fulfill any obligation specified in sub. (5)
or s. 121.555
The form of contract shall be prescribed by the department and shall provide that all parties to the contract are subject at all times to rules adopted by the secretary of transportation under s. 110.06 (2)
and by the department.
If the contract is made under sub. (2) (b)
, the contract shall provide that the owner or lessee require his or her bus drivers, as a condition of employment, to take a physical examination, including a chest X-ray or tuberculin test, and to submit the physical examination report to the school board. If the reaction to the tuberculin test is positive, a chest X-ray shall be required. Freedom from tuberculosis in a communicable form is a condition of employment as a bus driver. Additional physical examinations shall be required thereafter at intervals determined by the school board.
The contract shall provide that a physical examination report may be submitted on forms prescribed by the federal authority regulating motor carriers or the department and that a copy of a physical examination report obtained for other purposes within one year of the date of the contract may be substituted for the examination, if the report contains substantially the same information required by the department.
Such physical examinations, chest X-rays or tuberculin tests shall not be required of a bus driver who files with the school board an affidavit setting forth that the bus driver depends exclusively upon prayer or spiritual means for healing in accordance with the teachings of a bona fide religious sect, denomination or organization and that the bus driver is to the best of the bus driver's knowledge and belief in good health and that the bus driver claims exemption from health examination on these grounds. Notwithstanding the filing of such affidavit, if there is reasonable cause to believe that the bus driver is suffering from an illness detrimental to the health of the pupils, the school board may require a health examination of the bus driver sufficient to indicate whether or not the bus driver is suffering from such an illness. No bus driver may be discriminated against by reason of filing such affidavit.
The use of any motor vehicle to transport pupils shall be discontinued upon receipt of an order signed by the state superintendent or the secretary of transportation ordering such discontinuance. Personnel under the state superintendent or the secretary of transportation may ride any school bus at any time for the purpose of inspection.
Upon written request of a parent or guardian of a pupil for whom the school district provides transportation, the school board shall disclose the name of each driver who transports the pupil under sub. (2) (a)
School bus insurance. 121.53(1)(1)
No motor vehicle may be used as a school bus unless a policy of bodily injury and property damage liability insurance, issued by an insurer authorized to transact business in this state, is maintained thereon. The policy shall provide property damage liability coverage with a limit of not less than $10,000. The policy also shall provide bodily injury liability coverage with limits of not less than $75,000 for each person and, subject to such limit for each person, total limits as follows:
$150,000 for each accident for each such motor vehicle having a seating capacity of 7 passengers or less.
$200,000 for each accident for each such motor vehicle having a seating capacity of 8 to 15 passengers.
$250,000 for each accident for each such motor vehicle having a seating capacity of 16 to 24 passengers.
$375,000 for each accident for each such motor vehicle having a seating capacity of 25 to 36 passengers.
$1,000,000 for each accident for each such motor vehicle having a seating capacity of 37 or more passengers.
The policy under this section shall cover the transportation of pupils, their parents or guardians, authorized chaperones, school district officers, faculty and employees and school doctors, dentists and nurses:
To and from the school or school district which operates the school bus or contracts for its operation.
In connection with any extracurricular school activity authorized by and made in compliance with s. 121.54 (7)
An insurer issuing a policy under this section may exclude coverage for public or livery use of the school bus, but any such exclusion does not apply:
When the school bus, while regularly used as such, also is used to transport pupils of another public or private school, whether or not a charge is made for such transportation.
When used in accordance with sub. (2)
, whether or not any person lawfully transported is required to pay a charge therefor.
When the school bus is used as specified in s. 340.01 (56) (am)
for the purpose of transporting seniors or individuals with disabilities in connection with a transportation assistance program for such persons.
Every school board shall require that there be filed with it and with the department of transportation a certificate of insurance showing that an insurance policy has been procured and is in effect which covers the owner and operator of the school bus and the school board or shall procure an insurance policy and file such certificate with the department of transportation. Unless such certificate is on file with the department of transportation, no registration plates for a school bus may be issued by the department of transportation. No such policy may be terminated prior to its expiration or canceled for any reason, unless a notice thereof is filed with the department of transportation and with the school board by the insurer at least 10 days prior to the date of termination or cancellation. The department of transportation shall revoke the registration of a school bus on which the policy has been terminated or canceled, effective on the date of termination or cancellation.
A motor vehicle owned or operated by a parent or guardian transporting only the parent's or guardian's own children, whether or not any contract is made with or compensation paid to the parent or guardian for such transportation by a school board.
A motor vehicle operated by a common carrier certificated under ch. 194
, where such motor vehicle is used under contract pursuant to this subchapter, if the common carrier has complied with s. 194.41
A taxicab regulated by a municipal ordinance under s. 349.24
when used to transport pupils.
Within 10 days after its occurrence, every accident involving a motor vehicle while providing transportation under this subchapter shall be reported to the appropriate school board.
Transportation by school districts. 121.54(1)(a)(a)
and s. 121.57
do not apply to pupils who reside in a school district that contains all or part of a city unless the school they attend is located outside the city but within the boundaries of the school district.
If a school district elects under sub. (2) (c)
to provide transportation for the pupils under par. (a)
, state aid shall be paid in accordance with s. 121.58
, and there shall be reasonable uniformity in the transportation furnished to the pupils, whether they attend public or private schools.
does not apply to pupils who reside in a school district that contains all or part of a 1st, 2nd or 3rd class city with a population exceeding 40,000 unless transportation for the pupils is available through a common carrier of passengers operating under s. 85.20
or ch. 194
Except as provided in sub. (1)
, every school board shall provide transportation to and from public school for all pupils who reside in the school district 2 miles or more from the nearest public school they are entitled to attend.
In lieu of transporting a pupil who is eligible for transportation under par. (a)
to and from his or her residence, a school district may transport the pupil to or from, or both, a before- and after-school child care program under s. 120.125
, a child care program under s. 120.13 (14)
, or any other child care program, family child care home, or child care provider.
Except as provided in sub. (1)
or otherwise provided in this subsection, the school board of each district operating high school grades shall provide transportation to and from the school a pupil attends for each pupil residing in the school district who attends any elementary grade, including kindergarten, or high school grade at a private school located 2 miles or more from the pupil's residence, if such private school is a school within whose attendance area the pupil resides and is situated within the school district or not more than 5 miles beyond the boundaries of the school district measured along the usually traveled route.
In lieu of transporting students under subd. 1.
and paying for transportation under sub. (8) (b)
, an underlying elementary school district of a union high school district may elect, by resolution adopted at its annual or special meeting, to transport elementary school children who reside within the underlying district and qualify for transportation under subd. 1.
, in vehicles owned, operated or contracted for by the district. Once adopted, such a resolution may be repealed only upon one year's notice to the board of the union high school district of which the underlying district is a part. An elementary school district shall notify the union high school district of any action under this paragraph no later than June 15 preceding the school year in which the elementary school district's action takes effect.
Annually by April 1, each private school shall submit its proposed attendance area for the ensuing school year to the school board of each school district having territory within the proposed attendance area. If a proposal is not submitted by April 1, the existing attendance area shall remain in effect for the ensuing school year.
No later than May 15 in each year, each private school shall notify each school board of the names, grade levels and locations of all pupils, if any, eligible to have transportation provided by such school board under this paragraph and planning to attend such private school during the forthcoming school term. The school board may extend the notification deadline.
See also s. PI 35.06
, Wis. adm. code.
An annual or special meeting of a common or union high school district, or the school board of a unified school district, may elect to provide transportation for pupils who are not required to be transported under this section, including pupils attending public school under s. 118.145 (4)
. Transportation may be provided for all or some of the pupils who reside in the school district to and from the public school they are entitled to attend or the private school, within or outside the school district, within whose attendance area they reside. If transportation is provided for less than all such pupils there shall be reasonable uniformity in the minimum distance that pupils attending public and private schools will be transported. Except for elementary school districts electing to furnish transportation under par. (b) 2.
, this paragraph does not permit a school district operating only elementary grades to provide transportation for pupils attending private schools.
A school board may provide transportation for teachers to and from public school, subject to the same controls and limitations as apply to the transportation of pupils.
Notwithstanding par. (a)
, if a pupil is living outside the school district in which he or she is enrolled because the pupil's parents or guardians have joint legal custody, as defined in s. 767.001 (1s)
, of the pupil, upon the request of the pupil's parent or guardian the school district shall transport the pupil to and from an agreed-upon location within the school district.
Transportation for children with disabilities.
Every school board shall provide transportation for children with disabilities, as defined in s. 115.76 (5)
, to any public or private elementary or high school, to the school operated by the Wisconsin Center for the Blind and Visually Impaired or the school operated by the Wisconsin Educational Services Program for the Deaf and Hard of Hearing or to any special education program for children with disabilities sponsored by a state tax-supported institution of higher education, including a technical college, regardless of distance, if the request for such transportation is approved by the state superintendent. Approval shall be based on whether or not the child can walk to school with safety and comfort. Section 121.53
shall apply to transportation provided under this subsection.
Summer class transportation.
A school board may provide transportation for pupils residing in the school district and attending summer classes. If the school board provides transportation for less than all pupils, there shall be reasonable uniformity in the minimum and maximum distances pupils are transported.
Transportation to technical colleges.
The school board of a district operating high school grades may provide for the transportation or board and lodging of residents of the school district attending technical colleges outside the school district who are not high school graduates, are less than 20 years of age and attend such colleges full time. The school board of such a district may also provide transportation for residents of the district participating in vocational education programs organized cooperatively between school districts under s. 66.0301
. The school district shall be paid state aid for such transportation or board and lodging in accordance with s. 121.58
. This subsection does not apply if the distance between a pupil's home and the technical college along the usually traveled public highway is more than 15 miles, unless the pupil resides on an approved bus route or board and lodging are provided.
Transportation in special cases.
The school board of a district operating high school grades which, under s. 121.78 (2) (a)
, must permit a pupil to attend high school outside the school district shall provide transportation for such pupil if the pupil resides 2 or more miles from the high school that the pupil attends.
Transportation for extracurricular activities. 121.54(7)(a)
A school board may provide transportation for pupils attending public or private schools, their parents or guardians, authorized chaperones, school officers, faculty and employees and school doctors, dentists and nurses in connection with any extracurricular activity of the public or private school, such as a school athletic contest, school game, after school practice, late activity, school outing or school field trip or any other similar trip when:
A school bus or motor bus or a motor vehicle under s. 121.555 (1) (a)
is used and such transportation is under the immediate supervision of a competent adult.
A school operated by the school district or the private school has an actual interest in the safety and welfare of the children transported to the activity;
The school principal or other person with comparable authority authorizes such use.
If transportation is provided to pupils and other persons in connection with any extracurricular activity of a public school under par. (a)
, the school board may make a charge for such transportation, to be paid by the persons transported, sufficient to reimburse it for the cost of providing the transportation. If transportation is provided to pupils and other persons in connection with any extracurricular activity of a private school under par. (a)
, the school board shall make a charge for such transportation, to be paid by the private school or the persons transported, sufficient to reimburse it for the cost of providing the transportation.
The school board may contract under s. 121.52 (2) (b)
for transportation authorized under par. (a)
for pupils attending public schools. The school board may authorize a charge for the transportation, to be paid by the persons transported, sufficient to make reimbursement for the cost of providing the transportation.
Payment of transportation costs. 121.54(8)(a)
The cost of providing transportation for pupils under subs. (1)
and s. 121.57
shall be paid by the school district in which they reside, and no part of such cost may be charged to the pupils or their parents or guardians.
At the end of the school term, every union high school district shall submit to each of its underlying school districts operating only elementary grades a certified statement of the actual cost for the school year, less the amount to be paid for such pupils for that school year under s. 121.58 (2)
, of transporting the private school pupils residing in the underlying school district under sub. (2) (b)
. On or before June 30 in each year each underlying school district shall reimburse the union high school district for the net cost of transporting its resident private school pupils as so reported in the statement.
Transportation in areas of unusual hazards. 121.54(9)(a)
In school districts in which unusual hazards exist for pupils in walking to and from the school where they are enrolled, the school board shall develop a plan which shall show by map and explanation the nature of the unusual hazards to pupil travel and propose a plan of transportation if such transportation is necessary, which will provide proper safeguards for the school attendance of such pupils. Copies of the plan shall be filed with the sheriff of the county in which the principal office of the school district is located. The sheriff shall review the plan and may make suggestions for revision deemed appropriate. The sheriff shall investigate the site and plan and make a determination as to whether unusual hazards exist which cannot be corrected by local government and shall report the findings in writing to the state superintendent and the school board concerned. Within 60, but not less than 30, days from the day on which the state superintendent receives the sheriff's report, the state superintendent shall determine whether unusual hazards to pupil travel exist and whether the plan provides proper safeguards for such pupils. If the state superintendent makes findings which support the plan and the determination that unusual hazards exist which seriously jeopardize the safety of the pupils in their travel to and from school, the school board shall put the plan into effect and state aid shall be paid under s. 121.58 (2) (c)
for any transportation of pupils under this subsection. Any city, village or town may reimburse, in whole or in part, a school district for costs incurred in providing transportation under this subsection for pupils who reside in the city, village or town.
Any person aggrieved by the failure of a school board to file a plan with the sheriff as provided in par. (a)
may notify the school board in writing that an area of unusual hazard exists. The school board shall reply to the aggrieved person in writing within 30 days of receipt of the aggrieved person's notice. The school board shall send a copy of the board's reply to the sheriff of the county in which the principal office of the school district is located and to the state superintendent. Upon receipt of the school board's reply, the aggrieved person may request a hearing before the state superintendent for a determination as to whether an area of unusual hazard exists. If the state superintendent determines that an area of unusual hazard exists, the state superintendent shall direct the school board to proceed as provided in par. (a)
Within 30 days after the sheriff's report is received by the state superintendent, any aggrieved person may request a hearing before the state superintendent on the determination by the sheriff and on the plan. After such hearing, the state superintendent shall proceed as provided in par. (a)
The state superintendent and the department of transportation shall establish a definition of “unusual hazards" and “area of unusual hazards" for the implementation of this subsection. Such definition shall be promulgated, as a rule, by the state superintendent.
See also ch. PI 7
, Wis. adm. code.
Attendance in nonresident school district.
Subject to s. 118.51 (14) (a) 2.
, a school board may elect to provide transportation, including transportation to and from summer classes, for nonresident pupils who are attending public school in the school district under s. 118.51
or 121.84 (4)
, or its resident pupils who are attending public school in another school district under s. 118.51
or 121.84 (4)
, or both, except that a school board may not provide transportation under this subsection for a nonresident pupil to or from a location within the boundaries of the school district in which the pupil resides unless the school board of that school district approves.
History: 1971 c. 162
; 1973 c. 89
; 1975 c. 60
; 1977 c. 227
; 1981 c. 20
s. 2202 (51) (e)
; 1983 a. 27
; 1985 a. 29
s. 3202 (43)
; 1985 a. 218
; 1993 a. 399
; 1995 a. 27
s. 9145 (1)
; 1995 a. 439
; 1997 a. 27
; 1999 a. 9
; 1999 a. 150
; 2001 a. 57
; 2005 a. 68
; 2009 a. 185
; 2013 a. 20
Section 121.51 (4) [now s. 121.51 (1)] and sub. (2) (b) 1., as enacted in 1969, are constitutional. Vanko v. Kahl, 52 Wis. 2d 206
, 188 N.W.2d 460
Exceptions to the mandatory provision of transportation should be narrowly construed. The exception for children who “reside in cities" should be confined to its common and approved usage. Morrissette v. DeZonia, 63 Wis. 2d 429
, 217 N.W.2d 377
Although a private school was only 127 feet beyond the 5-mile limit of sub. (2) (b) 1., statutory construction was not available to extend the limit. Young v. Mukwonago Board of Education, 74 Wis. 2d 144
, 246 N.W.2d 230
A public school board's refusal to transport parochial pupils during a public school vacation violated sub. (2) (b) 1. Hahner v. Wisconsin Rapids Board of Education, 89 Wis. 2d 180
, 278 N.W.2d 474
(Ct. App. 1979).
Common carrier passenger service need not be available to all city pupils for school board to possess the option under sub. (1). The “reasonable uniformity" requirement was directed at the distance that pupils are transported, not at the means of transportation that is chosen. St. John Vianney School v. Janesville Board of Education, 114 Wis. 2d 140
, 336 N.W.2d 387
(Ct. App. 1983).
Students within a private school's attendance area under s. 121.51 (1) were entitled to transportation under sub. (2) (b) 1. although the campus they attended was not within the public school's 5-mile transportation radius, but another campus to which they could be transported was. Providence Catholic School v. Bristol School District No. 1, 231 Wis. 2d 159
, 605 N.W.2d 238
(Ct. App. 1999), 98-3390