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.
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
1Section
1. 6.28 (2) (c) of the statutes is amended to read:
AB199,5,92
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 a
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
school.
AB199, s. 2
10Section
2. 7.30 (2) (am) of the statutes is amended to read:
AB199,6,1211
7.30
(2) (am) Except as otherwise provided in this paragraph, a pupil who is
1216 or 17 years of age and 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), may serve as an inspector at the
14polling place serving the pupil's residence, with the approval of the pupil's parent or
15guardian. Any pupil who has at least a 3.0 grade point average or the equivalent may
16serve. In addition, a school board or governing body of a private school
or tribal school 17may establish criteria for service by a pupil who does not have at least a 3.0 grade
18point average or the equivalent. A pupil may serve as an inspector at a polling place
19under this paragraph only if at least one election official at the polling place other
1than the chief inspector is a qualified elector of this state. No pupil may serve as chief
2inspector at a polling place under this paragraph. Before appointment by any
3municipality of a pupil as an inspector under this paragraph, the municipal clerk
4shall obtain written authorization from the pupil's parent or guardian for the pupil
5to serve for the election for which he or she is appointed. In addition, if a pupil does
6not have at least a 3.0 grade point average or the equivalent, the municipal clerk
7shall obtain written certification from the principal of the school where the pupil is
8enrolled that the pupil meets any criteria established by the school board or
9governing body for service as an inspector. Upon appointment of a pupil to serve as
10an inspector, the municipal clerk shall notify the principal of the school where the
11pupil is enrolled of the name of the pupil and the date of the election at which the
12pupil 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
13Section
3. 15.377 (4) (f) of the statutes is amended to read:
AB199,6,1514
15.377
(4) (f) Representatives of private schools
and, charter schools
, and tribal
15schools, 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
16Section
4. 15.377 (8) (c) 14. of the statutes is created to read:
AB199,6,1917
15.377
(8) (c) 14. One person licensed as a teacher and actively employed in a
18tribal school, as defined in s. 115.001 (16), recommended by a federally recognized
19American 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
1Section
5
. 15.57 (3) of the statutes is amended to read:
AB199,7,32
15.57
(3) One representative of public schools and one representative of private
3schools
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
4Section
6
. 16.971 (15) of the statutes is amended to read:
AB199,7,75
16.971
(15) Provide private schools
and tribal schools, as defined in s. 115.001
6(16), with telecommunications access under s. 16.997 and contract with
7telecommunications 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
8Section
7
. 16.972 (1) (cm) of the statutes is created to read:
AB199,7,109
16.972
(1) (cm) "Qualified tribal school" means a tribal school as defined in s.
10115.001 (16).
AB199, s. 8
11Section
8
. 16.972 (2) (b) of the statutes is amended to read:
AB199,8,1012
16.972
(2) (b) Except as provided in par. (a), provide such computer services and
13telecommunications services to local governmental units and the broadcasting
14corporation and provide such telecommunications services to qualified private
15schools,
tribal schools, postsecondary institutions, museums
, and zoos, as the
16department considers to be appropriate and as the department can efficiently and
17economically provide. The department may exercise this power only if in doing so
18it maintains the services it provides at least at the same levels that it provides prior
1to exercising this power and it does not increase the rates chargeable to users served
2prior to exercise of this power as a result of exercising this power. The department
3may charge local governmental units, the broadcasting corporation, and qualified
4private schools,
tribal schools, postsecondary institutions, museums
, and zoos, for
5services provided to them under this paragraph in accordance with a methodology
6determined by the department. Use of telecommunications services by a qualified
7private school
, tribal school, or postsecondary institution shall be subject to the same
8terms and conditions that apply to a municipality using the same services. The
9department shall prescribe eligibility requirements for qualified museums and zoos
10to receive telecommunications services under this paragraph.
AB199, s. 9
11Section
9
. 16.974 (2) and (3) of the statutes are amended to read:
AB199,8,1712
16.974
(2) Subject to s. 16.972 (2) (b), enter into and enforce an agreement with
13any agency, any authority, any unit of the federal government, any local
14governmental unit,
or any entity in the private sector
, or any tribal school, as defined
15in s. 115.001 (16), to provide services authorized to be provided by the department
16to that agency, authority, unit,
or entity
, or tribal school at a cost specified in the
17agreement.
AB199,9,6
18(3) Develop or operate and maintain any system or device facilitating Internet
19or telephone access to information about programs of agencies, authorities, local
20governmental units,
or entities in the private sector, or
any tribal schools, as defined
21in s. 115.001 (16), or otherwise permitting the transaction of business by agencies,
22authorities, local governmental units,
or entities in the private sector
, or tribal
23schools by means of electronic communication. The department may assess
24executive branch agencies, other than the board of regents of the University of
25Wisconsin System, for the costs of systems or devices relating to information
1technology or telecommunications that are developed, operated, or maintained
2under this subsection in accordance with a methodology determined by the
3department. The department may also charge any agency, authority, local
4governmental unit,
or entity in the private sector
, or tribal school for such costs as
5a component of any services provided by the department to that agency, authority,
6local 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
7Section
10. 16.9785 of the statutes is amended to read:
AB199,9,14
816.9785 Purchases of computers by teachers. The department shall
9negotiate with private vendors to facilitate the purchase of computers and other
10educational technology, as defined in s. 24.60 (1r), by public
and, private
, and tribal 11elementary and secondary school teachers for their private use. The department
12shall attempt to make available types of computers and other educational technology
13under this section that will encourage and assist teachers in becoming
14knowledgeable 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
15Section
11. 16.99 (2g) of the statutes is amended to read:
AB199,9,2116
16.99
(2g) "Educational agency" means a school district, charter school
17sponsor, juvenile correctional facility, private school,
tribal school, as defined in s.
18115.001 (16), cooperative educational service agency, technical college district,
19private college, public library system, public library board, public museum, the
20Wisconsin Center for the Blind and Visually Impaired, or the Wisconsin Educational
21Services 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
1Section
12. 20.505 (1) (is) of the statutes is amended to read:
AB199,10,72
20.505
(1) (is)
Information technology and communications services; nonstate
3entities. From the sources specified in ss. 16.972 (2) (b) and (c), 16.974 (2) and (3),
4and 16.997 (2) (d), to provide computer, telecommunications, electronic
5communications, and supercomputer services to state authorities, units of the
6federal government, local governmental units,
tribal schools, and entities in the
7private 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
8Section
13. 27.01 (7) (c) 10. of the statutes is amended to read:
AB199,10,199
27.01
(7) (c) 10. Any motor vehicle operated for the purpose of transporting
10pupils to or from curricular or extracurricular activities of a public or private school
11or, a home-based private educational program under s. 118.15 (4)
, or a tribal school,
12as defined in s. 115.001 (16). The operator of a motor vehicle transporting pupils
13under this subdivision shall possess and exhibit for inspection a written
14authorization from an administrator of the school or home-based private
15educational program indicating that admission to the vehicle admission area is part
16of an official school or home-based private educational program function and
17indicating the date for which the authorization is applicable. A separate
18authorization is required for each date on which the motor vehicle is admitted to the
19vehicle 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
20Section
14. 28.06 (1) of the statutes is amended to read:
AB199,11,5
128.06
(1) Limitation. Only planting stock of species and sizes suitable for forest
2and woodlot planting and for planting by school pupils
, including pupils at a tribal
3school, as defined in s. 115.001 (16), to celebrate arbor day under s. 118.025 shall be
4produced in state forest nurseries. The department may employ labor at prevailing
5local 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
6Section
15. 29.301 (1) (a) of the statutes is amended to read:
AB199,11,97
29.301
(1) (a) In this subsection, "school" means a public or private elementary
8or secondary school, including a charter school,
a tribal school, as defined in s.
9115.001 (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
10Section
16. 30.74 (1) (a) of the statutes is amended to read:
AB199,11,1711
30.74
(1) (a) The department shall create comprehensive courses on boating
12safety and operation. These courses shall be offered in cooperation with schools,
13including tribal schools, as defined in s. 115.001 (16), private clubs and
14organizations, and may be offered by the department in areas where requested and
15where other sponsorship is unavailable. The department shall issue certificates to
16persons 10 years of age or older successfully completing such courses. The
17department 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
18Section
17. 36.11 (36m) of the statutes is amended to read:
AB199,12,7
136.11
(36m) School safety research. The board shall direct the schools of
2education and other appropriate research-oriented departments within the system,
3to work with the technical college system board under s. 38.04 (27), school districts,
4private schools
, tribal schools, as defined in s. 115.001 (16), and the department of
5public instruction to present to school districts
and
, private schools
, and tribal
6schools the results of research on models for and approaches to improving school
7safety 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
8Section
18. 38.001 (3) (a) of the statutes is amended to read:
AB199,12,129
38.001
(3) (a) 1. Contract with secondary schools,
including tribal schools, to
10provide educational opportunities for high school age students in order to enhance
11their potential for benefiting from postsecondary education and for obtaining
12employment.
AB199,12,1513
2. Coordinate and cooperate with secondary schools,
including tribal schools, 14to facilitate the transition of secondary school students into postsecondary technical
15college 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
16Section
19. 38.01 (9m) of the statutes is created to read: