2005 - 2006 LEGISLATURE
August 24, 2005 - Introduced by Joint Legislative Council. Referred to
Committee on Education.
SB300,2,12 1An Act to amend 6.28 (2) (c), 7.30 (2) (am), 15.377 (4) (f), 15.57 (3), 16.971 (15),
216.972 (2) (b), 16.974 (2) and (3), 16.9785, 16.99 (2g), 20.505 (1) (is), 27.01 (7)
3(c) 10., 28.06 (1), 29.301 (1) (a), 30.74 (1) (a), 36.11 (36m), 38.001 (3) (a), 38.04
4(27), 38.14 (3) (a) and (bm), 39.41 (1) (bm), 39.41 (1m) (a) (intro.), (b), (c) 4. and
55., (e), (em), (g) and (j), 45.396 (2), 46.275 (3r) (a) 3., 48.345 (12) (c), 48.355 (2)
6(c), 48.396 (1), 48.65 (2) (b), 48.78 (2) (b), 49.26 (1) (g) 2., 51.45 (4) (d), 103.23 (2)
7(intro.) and (a), 103.25 (3m) (c) and (5), 103.27 (3), 103.275 (8), 103.67 (2) (c),
8103.71 (1) (b), 115.28 (7) (b) and (e) 1. and (11) (intro.), 115.34 (2), 115.341,
9115.343 (1), 115.345 (7m), 115.36 (1) and (2) (a), (b) and (d) 3., 115.365 (1) and
10(2) (a) and (b), 115.368 (1) and (2) (a) and (b), 115.42 (1) (a) 2. and (2) (a) 2., 115.52
11(3) (b) 1., 2. and 10., 115.525 (3) (b) 2., 116.01, 116.032 (1) and (3) (a) (intro.),
12118.025, 118.08 (1), 118.125 (2) (n), 118.125 (4), 118.127 (2), 118.145 (3) and (4),
13118.15 (1) (a), 118.15 (1) (d) 4., 118.153 (1) (b), 118.255 (2), 118.257 (1) (d), 118.29
14(2) (a) (intro.) and 3. and (b) and (3), 118.295, 120.18 (1) (a) 2. and (s), 121.05 (1)

1(a) 7., 121.76 (1) (a), 121.76 (2) (c), 121.78 (4), 125.09 (2) (a) 2., 125.68 (3) (intro.),
2252.15 (1) (ab) and (2) (a) 7. a., 255.30 (4), 301.45 (1d) (c), 301.46 (4) (a) 1., 343.06
3(1) (c), 343.07 (5), 343.16 (1) (c) 3., 447.06 (2) (a) 2., 895.48 (1m) (intro.), 895.515
4(2), 938.34 (7d) (c), 938.34 (14t), 938.342 (1r), 938.355 (2) (c), 938.396 (1), (1m),
5(1p) and (7), 938.78 (2) (b), 939.632 (1) (a) and (d) 3., 944.21 (8) (b) 2., 948.095
6(1) (a), 948.11 (4) (b) 2., 948.50 (2) (a), 948.61 (1) (b), 961.49 (1m) (b) 6. and
7961.495; and to create 15.377 (8) (c) 14., 16.972 (1) (cm), 38.01 (9m), 39.41 (1)
8(c), 48.02 (18m), 48.345 (12) (a) 5., 49.26 (1) (a) 2. bm., 103.21 (7), 103.64 (6),
9115.001 (16), 118.16 (2) (em), 118.162 (1) (am) and (m), 118.29 (4m), 121.78 (5),
10938.02 (18e) and 938.34 (7d) (a) 5. of the statutes; relating to: providing
11benefits to tribal schools and tribal school pupils similar to those provided to
12private schools and private school pupils and making an appropriation.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the Joint Legislative Council in
the bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Joint Legislative Council prefatory note: This bill was prepared for the Joint
Legislative Council's Special Committee on State-Tribal Relations.
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.
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
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
American Indian Language and Culture Education Program. Subchapter 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, 4 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; Lac Courte Oreilles
Tribal School; and Mashkiisiibii (Bad River) Tribal School. The first 3 have contracts with
and are funded, in full or in part, by the Bureau of Indian Affairs (BIA). The last is funded
by the Bad River Tribal Council and does not have a contract with or receive a grant from
the 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.
This 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; and eligibility for
bonding for certain building projects through the Wisconsin Health and Educational
Facilities Authority. The bill also does not amend any 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. 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.
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; 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.
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 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.
The provisions of the bill are explained in Notes following the Sections.
SB300, s. 1 1Section 1. 6.28 (2) (c) of the statutes is amended to read:
SB300,5,92 6.28 (2) (c) The principal of any private high school having or of any tribal
3school, as defined in s. 115.001 (16), that operates high school grades that has
4substantial number of students residing in a municipality may request the
5municipal clerk to establish registration dates when a special registration deputy
6will be present in the high school, or to appoint a special school registration deputy
7in accordance with par. (b). The clerk shall establish registration dates or appoint
8a special school registration deputy in the high school if the clerk determines the
9school 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
SB300, s. 2 10Section 2. 7.30 (2) (am) of the statutes is amended to read:
SB300,6,411 7.30 (2) (am) Except as otherwise provided in this paragraph, a pupil who is
1216 or 17 years of age, who is enrolled in grades 9 to 12 in a public or private school
13or in a tribal school, as defined in s. 115.001 (16), and who has at least a 3.0 grade
14point average or the equivalent may serve as an inspector at the polling place serving
15the pupil's residence, with the approval of the pupil's parent or guardian and of the
16principal of the school in which the pupil is enrolled. A pupil may serve as an
17inspector at a polling place under this paragraph only if at least one election official
18at the polling place other than the chief inspector is a qualified elector of this state.
19No pupil may serve as chief inspector at a polling place under this paragraph. Before
20appointment by any municipality of a pupil as an inspector under this paragraph,
21the municipal clerk shall obtain written authorization from the pupil's parent or

1guardian and from the principal of the school where the pupil is enrolled for the pupil
2to serve for the entire term for which he or she is appointed. Upon appointment of
3a pupil to serve as an inspector, the municipal clerk shall notify the principal of the
4school where the pupil is enrolled of the date of expiration of the pupil's term of office.
Note: Permits certain tribal school pupils to serve as inspectors at a polling place
under certain conditions.
SB300, s. 3 5Section 3. 15.377 (4) (f) of the statutes is amended to read:
SB300,6,76 15.377 (4) (f) Representatives of private schools and, charter schools, and tribal
7schools, as defined in s. 115.001 (16)
Note: Provides that representatives of tribal schools may serve on the DPI Council
on Special Education.
SB300, s. 4 8Section 4. 15.377 (8) (c) 14. of the statutes is created to read:
SB300,6,119 15.377 (8) (c) 14. One person licensed as a teacher and actively employed in a
10tribal school, as defined in s. 115.001 (16), recommended by a federally recognized
11American 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 Association of Nonpublic Schools (which has been
renamed 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.
SB300, s. 5 12Section 5 . 15.57 (3) of the statutes is amended to read:
SB300,6,1413 15.57 (3) One representative of public schools and one representative of private
14schools 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.
SB300, s. 6 15Section 6 . 16.971 (15) of the statutes is amended to read:
116.971 (15) Provide private schools and tribal schools, as defined in s. 115.001
with telecommunications access under s. 16.997 and contract with
3telecommunications providers to provide that access.