AB210: Bill Text

Tribally Operated Schools in Wisconsin

Currently, three schools in Wisconsin come under the tribally operated schools component of the "alternative school" definition in s. 115.71 (1), stats. They are: Menominee Tribal School; Oneida Nation of Wisconsin Schools; and Lac Courte Oreilles Ojibwe School. These schools have contracts with and are funded, in full or in part, by the U.S. Department of Interior, Bureau of Indian Affairs (BIA). (The Bad River Band of Lake Superior Chippewa Indians previously operated the Mashkiisiibii Tribal School, but that school no longer exists. The Waadookodaading Charter School is, in part, supported by funds contributed by the Lac Courte Oreilles Band of Lake Superior Chippewa Indians. However, it is a public charter school, chartered by the Hayward School District. Thus, the bill does not affect it.)

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., which is a privately owned and operated corporation, controlled by a board of directors. 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.

THE BILL--GENERAL COMMENTS

The bill defines a "tribal school" in s. 115.001 (15m), 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: (a) controlled by the elected governing body of a federally recognized American Indian tribe or band in Wisconsin; (b) jointly controlled by the elected governing bodies of two or more federally recognized American Indian tribes or bands in Wisconsin; (c) controlled by the tribal educational authority established by a federally recognized American Indian tribe or band in Wisconsin; or (d) controlled by a tribal educational authority established jointly by two or more federally recognized American Indian tribes or bands 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 pupils, or private school staff and provide a benefit or protection to them, with the exception of statutes relating to: pupil 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 pupils, or tribal school staff 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 records. 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 Not Imposed on Tribal Schools

With respect to statutes that explicitly impose a requirement 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, tornado, or other hazard drills and file reports on those drills with the Department of Commerce and chief of the local fire department; distribute information about meningococcal disease; annually inform professional staff about resources available regarding suicide prevention; 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 or protection applies to the school, school pupils, and school staff, the benefit also applies to tribal schools, tribal school pupils, and tribal school staff. 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 requirements apply to tribal schools is an issue to be resolved by the courts.

THE BILL--LIST OF BENEFITS AND PROTECTIONS PROVIDED TO TRIBAL SCHOOLS, TRIBAL SCHOOL PUPILS, AND TRIBAL SCHOOL STAFF

The benefits and protections provided in the bill to tribal schools, tribal school pupils, and tribal school staff are briefly listed below in each of these categories. Each listing is followed by a reference to the Section number in the bill. The provisions of the bill are further explained in the Note following each Section of the bill. [In some cases, a benefit or protection could have been included in more than one category because of overlapping considerations (for example, permitting disclosure to tribal schools of certain confidential police records could ultimately benefit the tribal school, tribal school pupils, and tribal school staff). However, each provision in the bill is listed in only one category below, namely, what appeared to be the most pertinent category.]

Benefits or Protections Provided to Tribal Schools

The bill provides the following benefits or protections to tribal schools:

1. Permits a tribal school to ask the municipal clerk to conduct voter registration at the high school. [Section 1 .]

2. Permits representatives of tribal schools to serve on the DPI Council on Special Education. [Section 3 .]

3. Permits the Governor to nominate a representative to the Educational Communications Board who may represent either a tribal school or private school. [Section 5.]

4. 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. The bill permits DOA to provide telecommunications services to tribal schools that DOA considers appropriate and permits DOA to charge for such services. [Sections 6, 7 , 8, 9 , 11, and 12.]

5. 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. [Section 13.]

6. Extends to tribal schools the requirement that the Department of Natural Resources (DNR) create boating safety courses and offer them in cooperation with, among others, schools. [Section 16 .]

7. 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. [Section 17.]

8. Provides that the purposes of the Technical College System (TCS) include contracting, coordinating, and cooperating with tribal schools; requires the TCS Board to 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; and authorizes a technical college district board to contract with tribal schools, among others, to provide educational services or fiscal and management services. [Sections 18, 19, 20 , and 21.]

9. Requires the Department of Veterans Affairs to award a certificate of achievement and appreciation to a veteran who completes 20 hours of volunteer service in a tribal school in a school term if certain conditions are met. [Sections 25 and 26.]

10. Clarifies that a tribal school is not required to obtain a day care license. [Section 34.]

11. Requires the Department of Health Services (DHS) to cooperate with various entities, including tribal schools, to establish alcoholism prevention and treatment programs and to prepare curriculum materials on this subject. [Section 38.]

12. Establishes a process by which driver education courses offered in a tribal school can be accepted by the Department of Transportation (DOT) for purposes of obtaining a driver's license under certain circumstances. [Sections 48, 97, 98 , and 99.]

13. Requires the State Superintendent to make online courses available for a reasonable fee, through a statewide web academy, to tribal schools located in Wisconsin. [Section 49.]

14. Provides that tribal schools are eligible for the school lunch program, school breakfast program, school day milk program, and food services plan for the elderly. [Sections 50, 51, 52 , and 53.] (According to DPI staff, tribal schools currently receive funds for the school lunch program and school breakfast program, and no tribal schools currently offer the school day milk program or food services plan for the elderly.)

15. Includes tribal schools in DPI's programs to assist schools in developing: alcohol and other drug abuse programs; suicide prevention programs; and protective behavior programs. The bill also requires DPI to provide a model notice to the governing body of a tribal school, which can be used to inform professional staff of the tribal school about suicide prevention services that DPI has developed and how to access those services. [Sections 54 , 55, and 56.]

16. Includes tribal schools with those groups to which the Wisconsin Center for the Blind and Visually Impaired and the Wisconsin Educational Services Program for the Deaf and Hard of Hearing may provide technical assistance and consultation services and other specified services. [Sections 59 , 60, 61 , and 62.]

17. Authorizes cooperative educational service agencies (CESAs) to facilitate communication and cooperation among public, private, and tribal schools, agencies, and organizations that provide services to pupils; subject to certain conditions, authorizes a CESA to contract with a tribal school. [Sections 63 and 64 .]

18. Specifies that tribal schools may request trees from the state forest nursery for Arbor Day observance. The bill also provides that tribal school pupils may be included in the distribution to school pupils by state forest nurseries of planting stock to celebrate Arbor Day. [Sections 14 and 65.]

19. Requires DPI to provide information to tribal schools about meningococcal disease. [Section 66 .]

20. Requires the authority in charge of a street or highway to erect school warning signs, including signs for tribal schools. [Section 67.]

21. Provides for the disclosure of certain confidential records to tribal schools under certain circumstances if enforceable protections are in place to ensure that tribal school officials will not disclose the records except under the same situations that private schools may do so. This includes: police and law enforcement records in a ch. 48, Stats. (Children's Code), proceeding; public school records in certain circumstances; records of the Department of Children and Families (DCF), a county department of human services or county department of social services, a licensed child welfare agency, or a licensed day care center, or of the Department of Corrections in a ch. 938, Stats. (Juvenile Justice Code), proceeding; records of a juvenile court in a ch. 938 proceeding; and law enforcement records in a ch. 938 proceeding. [Sections 33, 35 , 68, 70 , 109, 110 , 111, 112 , and 113.]

22. Adds to the county committee that advises on school districts' truancy plans: (a) a representative of each tribal school in the county; and (b) a parent of a tribal school pupil. [Section 77 .]

23. Requires the annual school district report submitted by the school district clerk to DPI to include certain information about tribal schools and tribal school pupils, if the information is voluntarily provided to the school district by the tribal school. [Section 85.]

24. Requires the State Superintendent to include tribal schools in the category of entities to which information about eye safety is provided. [Section 94.]

25. Adds tribal schools to the list of entities that may request information about persons on the sex offender registry; also amends the definition of "student" for the purpose of the sex offender registration law to also include students at a tribal educational institution, which would include tribal colleges as well as tribal schools. [Sections 95 and 96.]

26. Permits a dental hygienist to be employed at or independently contract with a tribal school. [Section 100 .]

Benefits or Protections Provided to Tribal School Pupils

The bill provides the following benefits or protections to tribal school pupils:

1. Permits certain tribal school pupils to serve as inspectors at a polling place under certain conditions. [Section 2 .]

2. Includes seniors at a tribal high school in the Academic Excellence Higher Education Scholarship Program. [Sections 22, 23 , and 24.]

3. Provides that a veteran is eligible for reimbursement for a course taken at a tribal high school under certain circumstances. [Section 27.]

4. Includes a tribal school in the list of schools that may serve a person relocated to the community by DHS from a state center for the developmentally disabled. [Section 28.]

5. Provides that in entering a child in need of protection or services (CHIPS), juvenile in need of protection or services (JIPS), or delinquency dispositional order, a court may order a child to attend a tribal school if the school district has a contract with the tribal school for such placements and also requires the court to order the supervising agency to disclose information to the tribal school necessary to assure appropriate educational services in such cases. The bill also provides that, in such cases, the educational placement at a tribal school must be paid for by the school district. [Sections 29, 30 , 31, 87 , 88, 89 , 103, 104 , and 105.]

6. If a CHIPS, JIPS, delinquency, or truancy or habitual truancy municipal ordinance dispositional order includes attendance at a tribal school as a condition of the order, requires that the court order request that a tribal school notify the court within five days of a violation of the condition. [Sections 32, 107 , and 108.]

7. Counts attendance at a tribal school for purposes of the Learnfare Program. [Sections 36 and 37.]

8. Provides that minors doing fund raising by selling for a tribal school are exempt from the statutes relating to minors working in the street trades or fund raising on the same basis as minors doing fund raising for public or private schools. [Sections 39, 40, 41, 42 , 43, 44 , and 45.]

9. Permits a child who has completed tribal high school to be employed during school hours. [Section 46 .]

10. Clarifies that when a pupil transfers from a public school to a tribal school, the school district is required to transfer records to the tribal school. [Section 69.]

11. Permits a tribal school to file with DPI information about the elementary school course of study which entitles a pupil having completed that course of study to be admitted to a public high school. [Section 71.]

12. Permits a tribal school pupil who has met the standards for admission to high school to take up to two courses each semester at a public high school in the school district in which the pupil resides if the school board determines that there is sufficient space in the classroom. [Section 71 .]

13. Explicitly provides that attendance at a tribal school satisfies the compulsory school attendance laws and provides that a child attending tribal school is not a "dropout." The bill also requires a school attendance officer to request information about the attendance of a child between the ages of 6 and 18 who is a resident of the school district and who claims or is claimed to be attending a tribal school. [Sections 72, 74, 75 , and 76.]

14. Permits a child's parent or the child to request that a school board provide a program or curriculum modification to attend a tribal school. If the school board approves, the bill also provides that, in such cases, the educational placement at a tribal school must be paid for by the school district. [Sections 73, 86 , 87, 88 , and 90.]

15. Permits school boards, CESAs, and county children with disabilities education boards to provide health treatment services to tribal school pupils at tribal schools under certain circumstances. [Section 78 .]

16. Adds tribal schools to the definition of "school" for purposes of the statute that provides that it is a Class H felony for school staff at a public or private school to have sexual contact or sexual intercourse with a child who is age 16 or 17. [Section 116 .]

17. Adds tribal schools to the definition of "school" for purposes of the statute that provides a criminal penalty for strip searches of pupils by school employees. [Section 118.]

18. Adds tribal schools to the definition of "school" for purposes of the statutes that: restrict possession of alcohol beverages on school premises; generally restrict the location of premises that have a Class A or Class B liquor license from being within 300 feet from the main entrance of a school; prohibit hunting within 1,700 feet of certain facilities, including a school; prohibit a retailer from placing a vending machine that dispenses cigarettes within 500 feet of a school; provide a criminal penalty for possessing (subject to certain exceptions) certain dangerous weapons other than firearms on school premises; prohibit (subject to certain exceptions) possession of a firearm in or on the grounds of a school or within 1,000 feet of a school (school zone) and provide certain criminal penalties under certain circumstances for the discharge of a firearm in a school zone; and specify additional consequences for a delinquency disposition for firearms violation on school premises. [Sections 15 , 79 (cross-referenced definition of school in s. 134.66 (1) (h), Stats.), 91, 92, and 119.]

19. Provides that the criminal penalty for possession of certain controlled substances on or within 1,000 feet of the premises of a school also applies to tribal schools and also extends the penalty enhancement to such violations. [Sections 106, 120, and 121.]

20. Applies penalty enhancement for violent crimes committed in a school zone to tribal schools. [Section 114 .]

Benefits or Protections Provided to Tribal School Staff

The bill provides the following benefits or protections to tribal school staff:

1. Permits a licensed teacher employed by a tribal school to serve on the DPI Professional Standards Council for Teachers. [Section 4.]

2. Includes tribal school teachers in the DOA program to facilitate the purchase of computers by school teachers. [Section 10.]

3. Provides that, although state law does not require that teachers in tribal schools have a state license, a state license may be issued if the applicant who teaches in a tribal school meets the state license criteria. Further provides that appropriate experience in a tribal school is counted in determining teaching experience under the state licensure law. [Section 48 .]

4. For the alternative education program license, specifies that, like a private school, an alternative educational program does not include a tribal school. [Section 48 .]

5. Makes teachers employed at a tribal school eligible for grants if they are certified by the National Board for Professional Teaching Standards or are licensed by DPI as a master educator and meet other criteria. [Sections 57 and 58 .]

6. Extends immunity from liability under several state laws to certain tribal school officials and others, including: for removing a pupil from school premises or from school-sponsored activities for suspicion of certain activities relating to controlled substances; for administering certain drugs to pupils under certain circumstances; for rendering emergency care; for permitting or prohibiting the use of an asthma inhaler under certain circumstances; for a good faith attempt to prevent suicide; for rendering free health care by certain health care providers at an athletic event at a tribal school; and for death or injury caused by the donation by certain individuals of commercial equipment or technology to a tribal school. [Sections 79, 80 , 81, 82 , 83, 84 , 101, and 102.]

Extending immunity under state law does not affect liability under tribal law or whatever right a person may have to raise a defense of tribal sovereign immunity if sued.

7. Includes tribal school employees and certain health care providers who provide free health care at a tribal school athletic event in the category of persons who, when significantly exposed to an individual (for example, by contact with the individual's blood) may require testing of that individual for human immunodeficiency virus (HIV) and receive the results of the test. [Sections 93 and 101 .]

8. Provides that an employee, member of the board of directors, or trustee of a tribal school, while in his or her capacity as such, may not be prosecuted under s. 944.21 (crimes relating to obscene materials or performance) or 948.11, Stats. (crimes relating to exposing a child to harmful material or harmful descriptions or narrations). [Sections 115 and 117.]

AB210, s. 1 Section 1 . 6.28 (2) (c) of the statutes is amended to read:

AB210,10,9 6.28 (2) (c) The principal of any private high school having or of any tribal school, as defined in s. 115.001 (15m), 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.

AB210, s. 2 Section 2 . 7.30 (2) (am) of the statutes is amended to read:

AB210,11,15 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 (15m), 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.

AB210, s. 3 Section 3 . 15.377 (4) (f) of the statutes is amended to read:

AB210,11,18 15.377 (4) (f) Representatives of private schools and, charter schools, and tribal schools, as defined in s. 115.001 (15m).

Note: Provides that representatives of tribal schools may serve on the DPI Council on Special Education.