STATE OF WISCONSIN
DEPARTMENT OF JUSTICE
J.B. VAN HOLLEN
Kevin M. St. John
Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
July 10, 2014 OAG-04-14
Mr. Tomas Stafford
University of Wisconsin System
1852 Van Hise Hall
1220 Linden Drive
Madison, WI 53706
Ms. Janet Jenkins
Chief Legal Counsel
Department of Public Instruction
125 South Webster Street
BodyStart¶1. You inquire, in your respective capacities as General Counsel of the University of Wisconsin System (“UWS”) and Chief Legal Counsel of the Department of Public Instruction (“DPI”), about the impact of 2013 Wisconsin Act 20’s creation of a new
“course options” provision under Wis. Stat. § 118.52. Specifically, you ask about its effect on the long-standing practice of concurrent enrollment, a program UWS calls “College Credit in High School.” This program enables high school students to take college-level courses at their schools that qualify for college credit. The courses are taught by a high school teacher who is classified as an adjunct instructor of the UWS institution offering the course. The teacher conducts the course under the supervision of that institution. A student taking the course is enrolled in the UWS as a special student. You ask whether concurrent enrollment classes come within the ambit of the new course options provision.
¶2. I conclude that revised Wis. Stat. § 118.52 applies to concurrent enrollment classes. The statute applies when a high school student “attends an educational institution [including the University of Wisconsin System] for the purpose of taking a course offered by the educational institution.” Wis. Stat. § 118.52(1)(am), (2). Based on the description of the concurrent enrollment program provided by UWS and DPI, I find that a student participating in concurrent enrollment classes attends UWS for the purpose of taking a course offered by that
¶3. 2013 Wisconsin Act 20 amended Wis. Stat. § 118.52. Prior to its amendment, the statute was titled “Part-time open enrollment.” It set forth the rules under which public school pupils could attend classes in a “Nonresident school district” on a part-time basis. Wis. Stat.
§ 118.52(2) (2011-12). A “Nonresident school district” was (and still is) defined as
“a school district, other than a pupil’s resident school district, in which the pupil is attending a course or has applied to attend a course under this section.” Id. at § 118.52(1)(b).
The statute did not address concurrent enrollment courses, or any other course a student might take at or through UWS.
¶4. With the enactment of 2013 Wisconsin Act 20, Wis. Stat. §118.52 was retitled “Course options.” Revised Wis. Stat. § 118.52(1) adds the following subsection to the statute’s “definitions” section:
“Educational institution” includes a public school in a nonresident school district, the University of Wisconsin System, a technical college, a nonprofit institution of higher education, a tribal college, a charter school, and any nonprofit organization that has been approved by the department.
Wis. Stat. § 118.52(1)(am). Thus, under the revised statute, “[a] pupil enrolled in a public school may attend an educational institution under this section for the purpose of taking a course offered by the educational institution.” Id. at § 118.52(2). ¶5. Prior to the amendment of Wis. Stat. § 118.52(12), a concurrent enrollment student paid tuition to the UWS institution. The new law addresses the issue of payment for courses taken at an “educational institution” in two important respects. First, it deletes the provision allowing a pupil’s resident school district to reject his application to attend a course in a nonresident school district “if the cost of the course would impose upon the resident school district an undue financial burden in light of the resident school district’s total economic circumstances.” Wis. Stat. § 118.52(6)(b) (2011-12). Second, it revises the tuition provision as follows:
The resident school board shall pay to the educational institution, for each resident pupil attending a course at the educational institution under this section, an amount equal to the cost of providing the course to the pupil, calculated in a manner determined by the department. The educational institution may not charge to or receive from the pupil or the pupil’s resident school board any additional payment for a pupil attending a course at the educational institution under this section.
Wis. Stat. § 118.52(12) (new language emphasized). ¶6. You ask whether concurrent enrollment classes come within the ambit of revised Wis. Stat. § 118.52. UWS concludes that they do not; DPI concludes that they do. A concurrent enrollment class is unquestionably a hybrid between a public high school class and a UWS class. The very term used to describe it—concurrent—makes that clear. As I will discuss below, such a class has features that closely resemble a high school class (most notably, it is taught by a high school teacher in a high school classroom), as well as features that indicate a high degree of UWS control (for example, acceptance of the student as a UWS “special student,” and issuance of an official UWS transcript). On balance, I find that the greater weight of the salient characteristics of concurrent enrollment supports DPI’s position. Thus, I conclude that a student taking a concurrent enrollment class at her high school attends an educational institution under
Wis. Stat. § 118.52.
¶7. The factual basis for my conclusion is taken from the letters and attachments from UWS and DPI, concurrent enrollment brochures published by the UWS campuses at Whitewater, Oshkosh, Green Bay, and Marinette, and a policy paper published by the UWS Financial Administration, College Credit in High Schools (G36) (Revised 1998), to which these materials refer. I also reviewed the “Memorandum of Understanding between the Department of Public Instruction and the University of Wisconsin Colleges regarding the Establishment of a Dual Enrollment Partnership,” signed on July 12, 2012, by Tony Evers, State Superintendent of DPI, and Ray Cross, then-Chancellor of UW Colleges and UW-Extension (now President of UWS).
¶8. According to the information you have provided, although a student will typically receive her concurrent enrollment instruction in a high school classroom, she is a student of UWS in many respects. Before she can take a concurrent enrollment course for college credit, she must apply to and be accepted by the UWS institution offering the course. The academic eligibility criteria for admission are set by UWS. If accepted, a student will be enrolled in the UWS institution as a special student. She will receive a UWS grade from the institution, which will be memorialized on a UWS transcript. The student will receive college credit that is no different from college credit earned by attending a conventional UWS course in a conventional manner. While enrolled in the course, the student will have access to a variety of UWS resources, including the library, computer labs, on-campus musical, theatrical, and sporting events, and campus community events.
¶9. While a concurrent enrollment class may be taught by a high school teacher, the teacher’s instruction is circumscribed by UWS in most respects. First, the teacher must be certified and approved by UWS. UWS requires the teacher to have a master’s degree in his field. He is an adjunct professor of the relevant UWS institution for the duration of the concurrent enrollment class. The curriculum and syllabus the teacher uses are developed and implemented in consultation with UWS faculty and subject to UWS approval. The teacher works with a specifically assigned faculty liaison to accomplish these tasks. The faculty liaison may attend the high school class during the semester to give a guest lecture and to evaluate the high school teacher. According to the UW-Oshkosh brochure, on-campus resources are available to such teachers, including materials from Polk Library and 47 on-campus computer labs. They also receive a TitanCard, the official identification card at UW-Oshkosh. The card provides teachers access to music and theatre productions, athletic games and campus community events.
¶10. Based on the summary of factors in the preceding two paragraphs, I conclude that a student taking a concurrent enrollment class at her high school is attending an educational institution, i.e., a college in the University of Wisconsin System, within the meaning of
Wis. Stat. § 118.52. The requirements imposed and benefits granted to the student compel this conclusion, as does the control UWS asserts over the teacher’s conduct of the course. UWS offers several arguments in support of its position that concurrent enrollment falls outside
Wis. Stat. § 118.52, but none is persuasive.
¶11. First, UWS suggests that the student’s high school, not UWS, is “offering” the concurrent enrollment course, so that the course options statute does not apply. See Wis. Stat.
§ 118.52(2) (statute applies to a course “offered by” an “educational institution”). Given the hybrid nature of a concurrent enrollment course, I conclude that it is more accurate to say that the course is “offered” by both the student’s own high school and the UWS institution that approves the teacher (and treats him as an adjunct professor), approves the curriculum and syllabus, accepts the student, and gives the student college credit. This interpretation is consistent with the common understanding of how and by whom an academic course is “offered.” See Webster’s Third New Int’l Dictionary 1566 (Unabridged) (1986) (“offer”: “to make available or accessible: SUPPLY, AFFORD . . . <the college [offers] courses in Russian>”).