75 Op. Att'y Gen. 251 (1986)

75 Op. Att'y Gen. 251, 256 (1986)
3.   Entanglement

75 Op. Att'y Gen. 251, 256 (1986)
  In the second case, Aquilar v. Felton, 105 S. Ct. 3232 (1985), the Court held that a program in which New York City used Title I funds to pay salaries of public school employes to teach in parochial schools violated the establishment clause. The Court reasoned that even if this aid did not have the primary effect of advancing religion, the fact that the program provided for a system of monitoring the content of publicly funded classes necessarily resulted in an excessive entanglement of church and state. The Court's discussion of the entanglement test analyzed both the sectarian environment itself and the conduct of state personnel inside the sectarian school.

75 Op. Att'y Gen. 251, 256 (1986)
  The administrative cooperation that is required to maintain the educational program at issue here entangles Church and State in still another way that infringes interests at the heart of the Establishment Clause. Administrative personnel of the public and parochial school systems must work together in resolving matters related to schedules, classroom assignments, problems that arise in the implementation of the program, requests for additional services, and the dissemination of information regarding the program. Furthermore, the program necessitates "frequent contacts between the regular and the remedial teachers (or other professionals), in which each side reports on individual student needs, problems encountered, and results achieved."

75 Op. Att'y Gen. 251, 256 (1986)
Aquilar, 105 S. Ct. at 3239.

75 Op. Att'y Gen. 251, 256 (1986)
  Entanglement can flow from the need for frequent administrative supervision or from the potential for religious-political strife such involvement may generate. For example, in Meek, the teaching of special education courses in parochial schools by public school teachers was held to violate the first amendment to the United States Constitution because the Court concluded it was administratively impossible to keep the publicly provided program neutral and nonsectarian, and to politically maintain the program without dividing the community along religious lines.

75 Op. Att'y Gen. 251, 256-257 (1986)
  Allowing private school pupils to attend classes in public schools, if the courses are not included within the criteria found in section 118.165(1)(d), would not violate the first amendment to the United States Constitution. The primary purpose of the program would not be to provide religious based education but to advance the education of all children of the state. There would be little risk of subtle indoctrination in religious tenets by teachers, or the possible symbolic message of support conveyed by providing instruction on the premises of a sectarian institution. In addition, there would be no reason for frequent contact between administrative personnel of the public and private school systems involved, nor should the community have reason to oppose such arrangements. Finally, the state would not be subsidizing sectarian schools by providing the basic secular courses private schools are required to teach.

75 Op. Att'y Gen. 251, 257 (1986)
B. The Wisconsin Constitution

75 Op. Att'y Gen. 251, 257 (1986)
  Article I, section 18 of the Wisconsin Constitution reads as follows:

75 Op. Att'y Gen. 251, 257 (1986)
  The right of every man to worship Almighty God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any ministry, against his consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.¯2

75 Op. Att'y Gen. 251, 257-258 (1986)
  Article I, section 18 is the freedom of worship section of the Wisconsin Constitution. The provisions of both the first amendment and article I, section 18 of the Wisconsin Constitution "'are intended and operate to serve the same dual purpose of prohibiting the "establishment" of religion and protecting the "free exercise" of religion....'" State ex rel. Holt v. Thompson, 66 Wis. 2d 659, 676, 225 N.W.2d 678 (1975), quoting State ex rel. Warren v. Nusbaum, 55 Wis. 2d 316, 322, 198 N.W.2d 650 (1972). The test for an establishment clause violation is basically the same under both constitutions. American Motors Corp. v. ILHR Dept., 93 Wis. 2d 14, 29- 30, 286 N.W.2d 847 (Ct. App. 1979). However, the language of article I, section 18 of the Wisconsin Constitution is more specific than that found in the establishment and free exercise clauses in the first amendment. It contains the additional language: "[N]or shall any money be drawn from the treasury for the benefit of religious societies...." The added "for the benefit of" language in the state constitution may require additional analysis. See 64 Op. Att'y Gen. 75, 78 (1975), and cases cited therein. However, the Wisconsin Supreme Court has explained:

75 Op. Att'y Gen. 251, 258 (1986)
This language has been construed by this court as encompassing the "primary effect test" such that:

75 Op. Att'y Gen. 251, 258 (1986)
  "'The crucial question... not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.'" State ex rel. Warren v. Nusbaum, supra, at page 333, quoting Tilton v. Richardson, supra, at page 679.

75 Op. Att'y Gen. 251, 258 (1986)
State ex rel. Warren v. Nusbaum, 64 Wis. 2d 314, 328, 219 N.W.2d 577 (1974).

75 Op. Att'y Gen. 251, 258 (1986)
  A number of attorney general opinions have addressed the scope of article I, section 18 of the Wisconsin Constitution. See 55 Op. Att'y Gen. 124 (1966) (article I, section 18 of the Wisconsin Constitution prohibits the use of funds received under Title I of the Elementary and Secondary Education Act to pay salaries of any persons teaching in church-affiliated schools, whether or not they were public school teachers sent to such schools); 64 Op. Att'y Gen. 136 (1975). (To confer Title I benefits on a parochial school would violate article I, section 18 of the Wisconsin Constitution, which provides, in part: "[N]or shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries."); 64 Op. Att'y Gen. 75 (1975) (a school district can provide health and welfare services to students attending private schools, but not educational services).

75 Op. Att'y Gen. 251, 258 (1986)
  In 64 Op. Att'y Gen. 139 (1975), however, I concluded that funds under section 406 of Title IV of the Elementary and Secondary Education Act may be spent on "dual enrollment" or "shared time" programs, where both public and private students are permitted to participate, as long as the services are provided on public school premises.

75 Op. Att'y Gen. 251, 258-259 (1986)
Implicit in any dual enrollment program is the requirement that both public and private school students be permitted to participate in the same program. Subject to this condition and the condition that the services be rendered on the premises of a public school, it is permissible for a public school district to spend money to provide instructional programs and services to private school children and teachers.

75 Op. Att'y Gen. 251, 259 (1986)
64 Op. Att'y Gen. at 142.

75 Op. Att'y Gen. 251, 259 (1986)
  Based upon case law which has developed since that opinion, it should be noted that the provision of such programs and services to private school children are permitted only so long as those services are in the nature of remedial programs, such as the instruction mandated by federal laws for those school districts receiving federal funds, or supplemental courses, and not those courses mandated by section 118.165(1)(d).

75 Op. Att'y Gen. 251, 259 (1986)
  To the extent that the courses or activities which you propose to allow private school pupils to participate in are in the nature of therapeutic, guidance or remedial programs, or supplemental instruction, I conclude that such an arrangement would not violate federal or state constitutional prohibitions. See Wolman, Meek and Nusbaum. However, if the selected courses are those which provide basic education in the areas mandated by section 118.165(1)(d), i.e., reading, writing, mathematics, social studies and science, I believe an arrangement permitting the attendance of private school pupils in publicly provided courses would unconstitutionally have the primary effect of advancing religion. In order to exist, private schools are required to provide these course subjects. If the state provides instruction in such areas for sectarian schools, this necessarily reduces their education costs and frees their resources for religious purposes. Such a result is not permitted by either the state or federal constitutions.

75 Op. Att'y Gen. 251, 259 (1986)
II.

75 Op. Att'y Gen. 251, 259 (1986)
OBLIGATION OF SCHOOL DISTRICTS

75 Op. Att'y Gen. 251, 259 (1986)
  Article X, section 3 of the Wisconsin Constitution gives all children between the ages of four and twenty years the right to a free public education.

75 Op. Att'y Gen. 251, 259 (1986)
  Article X, section 3 provides:

75 Op. Att'y Gen. 251, 259-260 (1986)
  District schools; tuition; sectarian instruction; released time. SECTION 3. [As amended April 1972] The legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable; and such schools shall be free and without charge for tuition to all children between the ages of 4 and 20 years; and no sectarian instruction shall be allowed therein; but the legislature by law may, for the purpose of religious instruction outside the district schools, authorize the release of students during regular school hours. [1969 J.R. 37, 1971 J.R. 28, vote April 1972]

75 Op. Att'y Gen. 251, 260 (1986)
In analyzing this section, the court in Buse v. Smith, 74 Wis. 2d 550, 567, 247 N.W.2d 141 (1976), stated:

75 Op. Att'y Gen. 251, 260 (1986)
  The involvement of the legislature from the framing of the constitution to the present and the many cases which have come before this court, emphasize that the equal opportunity for education as defined by art. X, sec. 3, is a fundamental right.

75 Op. Att'y Gen. 251, 260 (1986)
  To hold that the right to equal opportunity for education is a fundamental right under the Wisconsin Constitution and to hold that the legislature is constitutionally mandated to provide an equal opportunity for education as that term is defined by the criteria set forth in sec. 3, art. X, is not necessarily to validate as constitutional any means chosen by the legislature to achieve that end.

75 Op. Att'y Gen. 251, 260 (1986)
(Emphasis added.) The analysis in the emphasized language can be applied to local public school districts, and forms the basis for a discussion of the powers and duties of the local school districts.

75 Op. Att'y Gen. 251, 260 (1986)
  This provision does not indicate whether this right is only available to those students who attend public school full-time. Because section 118.155 gives public school students the right to be released from school to obtain religious instruction during school hours, it could be argued that the right to attend public school is not conditioned on full-time attendance. If this is true, then the right to attend public school part-time should not be denied to parochial school students. The comparison, however, is fatally flawed by the distinction that the parochial school pupil has chosen to receive his or her basic education in a sectarian school. A parochial school cannot take a student's tuition and then send that student off to public school for instruction in the basic courses which it is itself obligated to provide in order to fall within the statutory definition of a "private school."

75 Op. Att'y Gen. 251, 260-261 (1986)
  To the extent the nature of courses being provided are those previously discussed as being permissible under the constitution, section 120.12, which gives a school district the power of general supervision and management over buildings, implies the authority to allow parochial pupils to attend public school part-time. 53 Op. Att'y Gen. 187 (1964). This opinion, however, did not address the issue of whether a district is obligated to provide such services.

75 Op. Att'y Gen. 251, 261 (1986)
  In response to the question of whether the state can provide for participation by private school children in Title IV programs if a local district refuses, or is legally unable to provide for their participation on an equitable basis, I stated:

75 Op. Att'y Gen. 251, 261 (1986)
Wisconsin has a firmly established policy of local control over elementary and secondary education. This policy is expressed throughout the statutes relating to education. For example, sec. 120.12(1), Stats., vests in the local school board the care, control and management of school district property and affairs. And sec. 120.49(1), Stats., authorizes school boards to establish and organize schools and prescribe courses of study. The proposal set forth in your sixth question to allow the state educational agency to provide for participation of private school children in Title IV programs in the event a local school district refuses to provide such programs is inconsistent with the policy of local control over education.

75 Op. Att'y Gen. 251, 261 (1986)
  In addition, the Department of Public Instruction is without statutory authority to provide for participation of private school children in the place of a local school district which refuses or is legally unable to do so. For these same reasons your department may not supplant a local school district in the administration of Title IV programs.

75 Op. Att'y Gen. 251, 261 (1986)
64 Op. Att'y Gen. at 142-43. Therefore, I conclude the department could not obligate a district to provide access to courses to private school pupils.

75 Op. Att'y Gen. 251, 261-262 (1986)
  School districts which receive federal funds under 20 U.S.C. 2701 (1982) et seq., the Elementary and Secondary Education Act of 1965, as amended, are required to make arrangements for participation in funded special educational programs by children of the district enrolled in private schools to the extent local educational agencies are not prohibited by law from providing such participation. 20 U.S.C. 2740 (1982). The receipt of such funds would thus present a circumstance under which school districts would be obligated to provide access to courses or activities to private school pupils. These funds, however, are only to be used for supplemental instructional services and cannot supplant instruction in regular classes. See Bennett v. Kentucky Dept. of Educ., 105 S. Ct. 1544 (1985). If the public school district incurs additional costs in permitting the pupil to participate in the selected courses or activities, such an arrangement again would be unconstitutional unless those costs are covered by federal funding which mandates provision of supplemental services to private pupils.

75 Op. Att'y Gen. 251, 262 (1986)
III.

75 Op. Att'y Gen. 251, 262 (1986)
LEASING SPACE FROM A SECTARIAN SCHOOL

75 Op. Att'y Gen. 251, 262 (1986)
  Your third question asks whether a public school district could lease space in a religious school facility for the teaching of public school students by public school teachers. A public school district may lease the use of a religious school facility if no religious activities are conducted during the periods of public school use, if all religious symbols and artifacts are removed, if a reasonable rental is paid and if the use by the public school district involves public school teachers instructing public school students only. In addition, the district must comply with relevant statutory procedures. Wisconsin statutes authorize a public school district to lease "suitable buildings" for a period not exceeding twenty years with annual rentals fixed by the lease. Sec. 120.10(5), Stats.

75 Op. Att'y Gen. 251, 262 (1986)
  Although the first amendment provides for separation of church and state, it does not prohibit reasonable cooperation between governmental entities and religious organizations.

75 Op. Att'y Gen. 251, 262 (1986)
The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwise the state and religion would be aliens to each other--hostile, suspicious, and even unfriendly.

75 Op. Att'y Gen. 251, 262 (1986)
Zorach v. Clauson, 343 U.S. 306, 312 (1952).

75 Op. Att'y Gen. 251, 262-263 (1986)
  The rental of space in order to provide classrooms for public school students clearly fulfills a secular purpose. The classrooms leased would not be used to conduct classes for private school pupils, nor will public school teachers be teaching private school pupils. Thus, this arrangement is distinguishable from the leasing of classrooms in parochial schools by public school districts in order to provide educational programs under Title I of Elementary and Secondary Education Act to parochial school students, which I previously advised your predecessor was prohibited by the establishment clause of the United States Constitution and article I, section 18 of the Wisconsin Constitution. 67 Op. Att'y Gen. 283 (1978). Even though the space would be under the control of the public school administration due to the lease, the arrangement was objectionable because of the benefit it would confer on parochial schools.

75 Op. Att'y Gen. 251, 263 (1986)
  Neither does this arrangement appear to violate the "primary effect" or "excessive entanglement" tests. Although it is true that a religious institution may be receiving monies from the state as a result of this lease, these benefits are in the nature of indirect and incidental aid and are, therefore, not necessarily prohibited by the constitution. Meek, 421 U.S. at 359.

75 Op. Att'y Gen. 251, 263 (1986)
  In State ex rel. Sch. Dist. v. Nebraska State Bd. of Ed., 188 Neb. 1, 3, 195 N.W.2d 161, cert. denied, 409 U.S. 921 (1972), the Court upheld the "right of a public school district to use or lease all or a part of a church or other sectarian building for public school purposes...." In its opinion denying certiorari, the United States Supreme Court explained why there appeared to be nothing unlawful in the rental of space: "There is not the slightest suggestion that this was a subterfuge to make a subsidy to the parochial school, or anything except an arrangement motivated solely by the lack of space in the public schools." 409 U.S. at 925.

75 Op. Att'y Gen. 251, 263 (1986)
  The isolation of the rooms leased and the precautions your question contemplates sufficiently insulate the public school students using such facilities from the religious influence of the sectarian institution. Any contacts the public school pupils would have with religious influences would be indirect and inconsequential.

75 Op. Att'y Gen. 251, 263 (1986)
  The renting of space by a public school district in a private school would create a landlord-tenant relationship with public school officials having administrative control of the space rented. The fact of negotiating a lease, arranging for space and ensuring the restriction of contacts would, of course, result in some entanglement. However, it would not be so extensive as to be "excessive." In the lease situation presented by your question those contacts would likely include a small number of meetings initially to discuss such non-ideological matters as allocation of space and scheduling.

75 Op. Att'y Gen. 251, 263-264 (1986)
  Another aspect of the entanglement question is the potential for political divisiveness. This would not appear to be a concern here where the lease arrangement is merely an expedient to provide temporary needed space to public school pupils. This situation is distinguishable from Lemke v. Black, 376 F. Supp. 87 (E.D. Wis. 1974), in which the court held the use of a church for a public school graduation ceremony unconstitutional on entanglement grounds. The specific facts of that case disclosed there had been active opposition to the holding of the ceremony in the church, and the decision to go ahead had resulted in increased religious tension and political divisiveness. The court did recognize that use of a religious facility by a state agency for a secular purpose does not necessarily violate the constitution. 376 F. Supp. at 88.

75 Op. Att'y Gen. 251, 264 (1986)
  In Dorner v. School District, 137 Wis. 147, 118 N.W. 353 (1908), the Wisconsin Supreme Court approved the maintenance of a public school in a parochial school building. A few years later, the court held that holding public school graduation exercises in a church did not violate article I, section 18 of the Wisconsin Constitution. State ex rel. Conway v. District Board, 162 Wis. 482, 156 N.W. 477 (1916).

75 Op. Att'y Gen. 251, 264 (1986)
  Further support for the opinion that such lease arrangements are constitutional may be found in discussions of the situation whereby a religious organization desires to lease space in a public building. My predecessor issued an opinion that the relationship of landlord and tenant which results from the use of state-owned facilities at a university campus by religious organizations would not result in "an excessive entanglement" between church and state. 63 Op. Att'y Gen. 374, 383 (1974).

75 Op. Att'y Gen. 251, 264 (1986)
BCL:JSM

75 Op. Att'y Gen. 251, 251 (1986) - Footnote

Destination-116   1 "Most of the nonpublic schools in Wisconsin are parochial schools. The stipulation of facts in State ex rel. Reynolds v. Nusbaum (1962), 17 Wis. 2d 148, 151, 115 N.W.2d 761, was to effect there were 850 to 875 nonpublic schools in Wisconsin of which only 10 were not operated by any religious, church, or sectarian organizations." 63 Op. Att'y Gen. 473, 478 (1974).

75 Op. Att'y Gen. 251, 251 (1986) - Footnote

Destination-117   2 It should be noted that the phrase "religious societies, or religious or theological seminaries" has been construed to include primary and secondary nonpublic schools. State ex rel. Reynolds v. Nusbaum, 17 Wis. 2d 148, 156, 115 N.W.2d 761 (1962).
___________________________