AB210: Bill Text

LRB-2456/1

PG:bjk:ph

2009 - 2010 LEGISLATURE

2009 Assembly BILL 210

April 14, 2009 - Introduced by Joint Legislative Council. Referred to Committee on Education.

AB210,2,15 An Act to amend 6.28 (2) (c), 7.30 (2) (am), 15.377 (4) (f), 15.57 (3), 16.971 (15), 16.972 (2) (b), 16.974 (2) and (3), 16.9785, 16.99 (2g), 20.505 (1) (is), 27.01 (7) (c) 10., 28.06 (1), 29.301 (1) (a), 30.74 (1) (a), 36.11 (36m), 38.001 (3) (a), 38.04 (27), 38.14 (3) (a) and (bm), 39.41 (1) (bm), 39.41 (1m) (a) (intro.), (b), (c) 4. and 5., (e), (em), (g) and (j), 45.09 (2), 45.20 (2) (a) 1., (c) 1. and (d) 1., 46.275 (3r) (a) 3., 48.345 (12) (c), 48.355 (2) (c), 48.396 (1), 48.65 (2) (b), 48.78 (2) (b), 49.26 (1) (g) 2., 51.45 (4) (d), 103.23 (2) (intro.) and (a), 103.25 (3m) (c) and (5), 103.27 (3), 103.275 (8), 103.67 (2) (c), 103.71 (1) (b), 115.28 (7) (b) and (e) 1. and (11) (intro.), 115.28 (53), 115.34 (2), 115.341, 115.343 (1), 115.345 (7m), 115.36 (1) and (2) (a), (b) and (d) 3., 115.365 (1), (2) (a) and (b) and (3), 115.368 (1) and (2) (a) and (b), 115.42 (1) (a) 2., 115.42 (2) (a) 2., 115.52 (3) (b) 1., 115.52 (3) (b) 2., 115.52 (3) (b) 10., 115.525 (3) (b) 2., 116.01, 116.032 (1) and (3) (a) (intro.), 118.025, 118.07 (3), 118.08 (1), 118.125 (2) (n), 118.125 (4), 118.127 (2), 118.145 (3) and (4), 118.15 (1) (a), 118.15 (1) (d) 4., 118.153 (1) (b), 118.16 (2) (e), 118.255 (2), 118.257 (1) (d), 118.29 (2) (a) (intro.) and 3. and (b) and (3), 118.291 (1g) (b), 118.295, 120.18 (1) (a) 2. and (s), 121.05 (1) (a) 7., 121.76 (1) (a), 121.76 (2) (c), 121.78 (4), 125.09 (2) (a) 2., 125.68 (3) (intro.), 252.15 (1) (ab) and (2) (a) 7. a., 255.30 (4), 301.45 (1d) (c), 301.46 (4) (a) 1., 343.06 (1) (c), 343.07 (1c), 343.16 (1) (c) 3., 447.06 (2) (a) 2., 895.48 (1m) (a) (intro.), 895.515 (2), 938.34 (7d) (c), 938.34 (14t), 938.342 (1r), 938.355 (2) (c), 938.396 (1) (b) 2., 938.396 (1) (c) 3. (intro.), a., c. and d. and 4., 938.396 (2g) (m), 938.78 (2) (b), 939.632 (1) (a) and (d) 3., 944.21 (8) (b) 2., 948.095 (1) (a), 948.11 (4) (b) 2., 948.50 (2) (a), 948.61 (1) (b), 961.49 (1m) (b) 6. and 961.495; and to create 15.377 (8) (c) 14., 16.972 (1) (cm), 38.01 (9m), 39.41 (1) (br), 45.09 (1) (d), 48.02 (18m), 48.345 (12) (a) 5., 49.26 (1) (a) 2. bm., 103.21 (7), 103.64 (6), 115.001 (15m), 118.16 (2) (f), 118.162 (1) (am) and (m), 118.29 (4m), 118.291 (2) (c), 121.78 (5), 938.02 (18e), 938.34 (7d) (a) 5. and 938.396 (1) (b) 2m. of the statutes; relating to: providing benefits and protections to tribal schools and tribal school pupils and staff similar to those provided to private schools and private school pupils and staff 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.

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 two 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 and protections to private schools and private school pupils and staff. A tribally operated school is not a private school, since the school is controlled by tribal government, rather than a private entity.

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, 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.]