*1 individually Judy Vincent, S. J. Vincent and William Tonya parents Bartlein, Vincent, M. Carol of and as individually parent Bar Bartlein, Kurt Sara and as of Kimberly Britten, Bartlein, Pam
tlein and Cortney individually parent Britten, of and as Travis Taylor Britten, Drazkowski, Karen Britten and individually parent Drazkowski and and as of Steve and Susan Drazkowski,
Ann Michael Endress individually parents Jill Endress and as of Endress, Megan J. Fairchild and Juliana Endress, Michael and individually parents as of Kara B. Schmidt, and Fairchild, Alexander R. Charles Fairchild and individually Angela parent of Hetfield, and as Hetfield, Brock John Hetfield, Hetfield and Rebecca individually Keller, and as Keller and Kathleen Courtney Lynn parents Keller, Klatt, individu of K. ally parent Klatt and Ross Klatt and and as of Leslie Loasching, parent Corrente, of Blade William as foster Kelly Loasching, individually parent Kari of and as Loasching Loasching, Loasching, Katie Mar Kirt and individually McGinnity McGinnity, garet and Thomas McGinnity, McGinnity, parents Ann Kate and as of Betsy McGinnity, Joyce McGinnity, Megan and A. Casey individually parent Brouhard and as of Olson, Callaway Reistad and Brouhard, Denise and Robert individually parents George Gary as Reistad, and Mary Kelsey Sonja Reistad, and Reistad, Reistad individually parent Keith Rochon-Jewert, and as Vang, individually Candyl Jewert, Pao Jewert Mary Vang, Phong Vang, Vang, parent Lee and as Vang, Vang, Xay Vang, Vang, Sheng Lue See Toua Vang, individually Vang Jenny Wahl, Gloria parent as of Jordan Woods-Wahl, Ronald J. Walsh, individually parent Ryan and as J. Walsh and Jacqueline individually Walsh; and, Laura M. Ward, *2 parent and as Justiniano of Jessica and Tatiana Jus Tonya tiniano, Vincent, M. Kurt Bartlein, Sara Kimberly Cortney Bartlein, Bartlein, Travis Britten, Taylor Britten, Britten, Steve Drazkowski, Ann Megan Drazkowski, Endress, Jill Endress, Kara B. Angela Fairchild, Alexander R. Fairchild, Hetfield, Courtney Rebecca Hetfield, Brock Hetfield, Keller, K. Kelly Klatt, Leslie Klatt, Ross Corrente, Blade Loasching, Loasching, Loasching, Kari Kart Katie Loasching, McGinnity, McGinnity, Megan Ann Kate McGinnity, Betsy McGinnity, Casey Brouhard, Robert George Kelsey Sonja
Brouhard, Reistad, Reistad, Candyl Phong Vang, Reistad, Jewert, Keith Jewert, Mary Vang, Vang, Vang, Vang, Sheng Lee See Toua Vang, Vang, Xay Vang, Jenny Vang, Lue Jordan Ryan Woods-Wahl, Walsh, J. Laura Walsh, M. Jessica Justiniano and Justiniano, Tatiana minors, on behalf public of themselves and all other school students and prospective students in the State of Wisconsin simi larly Mary Douglas Ray situated; and, Bills, Haselow, Mary Heinzen, Lohmeier, David Smette and Jerome A. Sommer, on of behalf themselves and all other property taxpayers similarly in the State of Wisconsin Ray Mary
situated; Heinzen, and Lohmeier and Rockwell, Roland on behalf of themselves and all other similarly citizens of the State of Wisconsin situated; and, School District of Abbotsford and its School Algoma Board, School District and its Board, School School District of Board, Alma and its School School of Alma Center-Humbird Merrillan and its District Board, School School District of Ashland and its Augusta Board, School School District of and its District Area School Board, School Baldwin-Woodville District and Area School Board, Barron its School Bayfield and its Board, School District School its of Beecher-Dunbar- Board, District School School District of Board, School its School Pembine and Benton Board, District of School Beloit and its School District and Berlin Area School Board, and its School Board, of Black Hawk School District its School River Falls District of Black Board, School its School District of Bloomer Board, School and its School Community Boyceville Dis Board, School School its of Cadott Board, School District its School trict and Community District Board, School and its School Board, School District its School
Cameron and Board, School District of its School Cashton and Clayton School District Board, and its School Chetek of Clear Lake Board, School District School and its *3 Dis Public School Board, School Clintonville and its City Board, Cochrane-Fountain and its School trict Community Board, and its School School District Board, School Colfax and its School School District of Board, School Dis and its School District of Cornell City District Board, School and its School trict of Cuba Board, Area School Desoto and its School of Denmark Dodgeland Dis Board, School and its School District Dodgeville District Board, School trict and its School its District of Durand and Board, School School and its and its Elk Area School District Board, Mound School its District of Elmwood and Board, School School Fall Creek and its Board, School District of School its School School District and Board, Frederic School City Galesville, Vil Board, District of the School Trempealeau, lages and Towns of Ettrick Trempealeau Dodge, Ettrick, and Caledonia, Gale County Trempealeau Bend in and the Town of North County Board, Jackson its and School School District of Gilmanton its School Board, and School District of Grantsburg Board, and its School School District of Greenwood and School Board, its School District of Holmen and Board, its School School District of Hor Board, icon its School School District of Howard- Board, Suamico and its School Kewaunee School Dis Kickapoo Board, trict and its School Area School District Board, and its School School District of La Board, Crosse its School District School of Lake Board, Holcombe and its School School District of Laona and Board, its School Lena Public School Dis Board, trict and its School School District of Luck and School Board, its Manitowoc Public School District Board, its School School of Marion and District its Mayville School Board, School District of and its Board, School Medford Area Public School District Board, and its School School District of the Board, Menomonie Area and its School Milwaukee Public Schools and the Board of School Directors of City Milwaukee, Mineral Point Unified School Board,
District and School its School District of Board, Mondovi and its School School District of Board, Mosinee and its Area School Necedah School District and Board, its School District School of New
Richmond Board, and its School North Crawford Board, School District and its School Oconto Falls Board, School District and its School Oconto Unified Board, its School District and School Osseo-Fairchild Board, School District and its School School District of *4 Pepin Board, Owen-Withee and its School Area School Board, District and its School District of Phil School lips Poynette Board, and its School School of District Board, and its School Prairie Farm Public School Dis Community Board, and trict its School Pulaski School Board, Racine Unified School District and its School Dis Board, School Reedsville School District and its Lake Board, and its School School District of Rib trict Board, Area District its Rice Lake School and School Board, and its its Riverdale School District and School Board, School District and its Ridge School River School District and Board, School Saint Croix Central its Board, School District of Seneca and its School Community District Board, Seymour School School Board, District of Lake and and its School School Shell Board, District of Siren and its its School School and its Board, School School District of Somerset Board, Community Southwestern Wisconsin School Board, District and its School District School School Board, its District of Valley and School School Spring Board, Stratford its School School District of and Board, its School School District of Superior and Board, its School School District of Thorp and Board, and its School Tomah Area School Tigerton Board, School District and its School Valders Area Board, District School Area School Viroqua and its Board, District and its School School District of Board, Area and its School School District Wabeno Board, and its School District of Washburn School Board, District, School Joint Waupun and its School Wauzeka, Steuben, and Villages Wauzeka Towns of Eastman, Marietta Prairie du Bridgeport, Haney, and Board, Chien and its School School District of West Board, and Salem its School School District Weston Board, Dis and its School Area School Weyerhauser Board, trict and its School School District of Winter Board, and its School School District of Wonewoc Board, Bills, Mary Union Center and its School Britten, Klatt, Pam on themselves Lynn behalf of and all other school board State of members *5 similarly Plaintiffs-Co-Appel situated, Wisconsin
lants-Petitioners, Guy Regina Costello, Terrance CRANEY, Jeffrey Washinawatok, Erhardt, Kathleen Randy Hildebrandt, Kuivinen, Nelson, William Douglass Thomas, and Wisconsin Education Associa Intervening Plaintiffs-Appellants-
tion Council,
Petitioners, v. capacity Jack C. in his official as State of Voight, Treasurer, Benson, Wisconsin John T. in his official capacity Superintendent as State of Wisconsin of Pub Department
lic Instruction, Wisconsin of Public capacity Instruction, Zeuske, Cate in her official as Secretary Department of the Wisconsin of Revenue, Department and Wisconsin Revenue, Defendants-
Respondents.
Supreme Court
argument February
July
No. 97-3174. Oral
2000. Decided
11, 2000.
For there by Vogt Fase, were briefs David J. Heidi L. and Cook & argument by Franke, S.C., Milwaukee, and oral David J. Fase. defendants-respondents
For the cause was argued by attorney gen- C. Anderson, Peter assistant Doyle, eral, on with whom the brief James E. was attorney general, Olsen, and Bruce A. assistant attor- ney general. Brannan,
Amicus Curiae brief Patricia A. Hogan Hartson, Alethia L.L.P., Nancoo & Wash- ington, City D.C., on behalf The Council of the Great Schools. by Gary
Amicus Curiae brief E. Sherman on behalf Representatives Gary of State E. Sherman, Dan Sykora, Shirley Schooff, John H. Ainsworth, I. Tom Krug, Schneider, Bock, Marlin D. E. L. Peter Robert Mary Spencer Turner, Lassa, M. Hubler, Julie G. Coggs, Colon, Gronemus, Pedro A. Barbara Donald W. Hasenohrl, Lehman, Miller, Plouff, John W. Joe Mark Reynolds, Marty Richards, Jon Christine Sinicki and *9 Burke, Rude, Brian B. Brian D. Senators State Kimberly Gwendolynne Piache. Moore, M. S. Raymond by P. Jor- Taffora, Amicus Curiae brief Michael, Hemaidan, & Davis and Best Karla M. dan J. Fair Aid LLP, Madison, on behalf of Friedrich Coalition. by Wiley on A. brief Lawrence
Amicus Curiae Tommy Thompson. G. of behalf Governor Brady by Peterson, D. James Amicus Curiae brief Sinykin, Madison, LLP, LaFollette C. and Williamson Inc., Future, for Wis- Institute Wisconsin's on behalf of Advocacy, Inc., and Wisconsin for consin Coalition Parent Teachers Association. Koneazny by M. on Peter
Amicus Curiae brief Wisconsin, Civil Union of behalf of American Liberties Inc. Brady by Peterson, D. brief James
Amicus Curiae Sinykin, LLP, Madison, LaFollette C. and Williamson Mayor Norquist. City John Milwaukee on behalf ¶1. Petitioners CROOKS, PATRICK J. The N. parents, students, in this case are various Wisconsin members, districts, citi- teachers, school board president Education zens, and the of Wisconsin (WEAC).1 The Petitioners collec- Council Association Ralph Emerson's words to 1 We remember Waldo graduating class of 1837: Harvard indispensible reading quite [or man portion a wise [T]here a by History woman]. [or she] he must learn labori- and exact science manner, schools], reading. Colleges public [and in like have ous they only indispensable But can office—to teach elements. their drill, create; they they highly aim not to when serve us when but genius every ray hospitable gather to their far of various from fires, youth halls, oftheir on and the concentrated set the hearts knowledge Thought apparatus natures in which flame. are tively challenge constitutionality of the state school system finance under Wis. Stat. ch. 121 and Wis. Stat. presented §§ 79.10 and 79.14. Two main issues are 1) our review: whether the state school finance Const,
is uniformity under X, unconstitutional Wis. art. 3—the 2) article; clause the education *10 system whether the state school finance is unconstitu- Const, Equal § tional I, under Wis. art. 1—the Protection The Clause. Petitioners contend that the system §X, school finance violates both art. 3 and art. equalize §I, 1 it because fails to access financial among resources school districts. unpublished decision, 2. In an the of court
appeals upheld constitutionality the of the school system. Voight, unpub- finance Vincent v. 97-3174, No. (Ct. 1998). slip op. App. 23, lished Dec. The court system determined finance that the current school is materially system not upheld different from the that this court Grover,
as constitutional in Kukor v. Wis. 148 (1989).2 Slip agree op. 469, 2d 436 568 N.W.2d at 6. We pretension nothing. foundations, pecuniary avail and Gowns though gold, of can towns of never countervail the least sentence syllable this, Forget colleges public [and wit. American our public importance, they grow schools] will in their recede whilst every year. richer Emerson, Ralph Ralph Waldo "The American Scholar" in (Lewis Essays Journals, 1837, Waldo Emerson: at 37 1968) (words brackets). ed., Mumford added in 2 presents justiciable We hold that this case a In issue. Carr, 186, (1962), Baker v. 369 U.S. 211 the United States Supreme Court case-by- stated that a must on court decide a inquiry political justiciable, case a whether so-called is issue "[djeciding any a whether matter has in been measure by the govern committed Constitution to another branch ment, or whether the action of that branch exceeds whatever committed, authority has been itself is a delicate exercise
599
beyond
proved
a
have not
reasona-
that the Petitioners
system
state school finance
ble doubt that the current
§ 1 of
X,
I,
3 or art.
the Wisconsin
violates either art.
present
finance
among
more
Constitution.
effectively equalizes the
districts than
tax base
system place
decided.
at the time Kukor was
students
further hold that Wisconsin
We
right
equal opportunity
to an
a fundamental
have
interpretation...." This
on
court
numerous occa
constitutional
find
interpreted the
constitution to
sions has
state
sys
assessing
constitutionality
finance
state school
See,
Grover,
province.
e.g.,
v.
148Wis. 2d
is within its
Kukor
tem
(1989);
Smith,
550,
469,
2d
Busé v.
Wis.
N.W.2d
(1976);
Auer,
ex
Zilisch v.
197 Wis.
N.W.2d 141
State
rel.
(1928).
In Kukor the court of
system of
judiciary
power
has the
to declare the
of whether the
unconstitutional,
financing
court found that
after
circuit
"
uniformity
higher degree
'practicable'
is now
'[w]hether a
*11
tax
Legislature
the
decide. . . . The battle over scarce
for
political
Legislature
. The
is
for
is a
one. . .
dollars
education
intended these decisions
where the framers of the constitution
clearly
Kukor,
sound basic education. An a for equip sound basic education is one that will students for their roles as citizens and enable them to succeed economically personally. legislature and has equal opportunity articulated a standard for for 118.30(lg)(a) §§ sound basic education Wis. Stat. (1997-98) 121.02(L) opportunity and as the for stu- reading proficient dents to be in mathematics, science, writing, geography, history, and and and them to receive instruction in training, music, the arts and vocational physical sciences, health,
social education foreign language, age and aptitude.3 in accordance with their equal opportunity
An for a sound basic edu- acknowledges cation that students and districts are not fungible dispro- and takes into account districts with portionate economically numbers students, of disabled disadvantaged students, and students with limited English language legislature long So skills. as the providing sufficient resources so that school districts equal opportunity offer students the for a sound basic required by constitution, education as the state pass finance school will constitutional muster.
I System A. The Wisconsin School Finance begin by outlining pro- ¶ 4. We the constitutional applicable visions to school finance. Article X of the public Wisconsin Constitution the state establishes system4 provides that the school districts 121.02(L) (1997-98). 118.30(lg)(a) See Wis. Stat. §§ schools," The constitution refers to "common "normal *12 schools," schools," schools," "public and "district instead Const, general terminology today. X, which is the used Wis. art. 2(1), 2(2), schools, schools, and 3. district nor- §§ Common and
601 practicable. nearly . . as Wis. be as uniform "shall Const, § a constitution also creates school X, art. The "support and maintenance" of schools and for the fund Const, § X, 4 for X, 2. Article allows art. libraries. Wis. imposition It school districts. local tax on the a locally must be "not sum to be raised states that the amount received such town than one-half the less city respectively purposes from the income of for school Const, pro- § 4. 5 X, art. Section the school fund." Wis. from the for of the income school vides the distribution just proportion "in to the number of children fund some ages youth of four resident therein between and Const, years." twenty §X, 5. Wis. art. provisions, 5. From these constitutional developed legislature has an elaborate state school funding formula.5 source of school is finance One directly applies property tax, to each local dis- which funding significant is The source of state trict. other categorical equalization aid, aid includes aid.6 State levy aid, tax credit.7 We describe each and the school type of aid in turn. publicly See
mal schools all forms of funded schools. were Patzer, generally, Public Education in Wisconsin Conrad E. (1924). appropriated approximately $7.72 billion in state budget. Legislative aid for 1997-99 Wisconsin school biennium (Jan. Bureau, Elementary Secondary Sch. Aids Fiscal 1999). government The federal also contributes limited amount districts, generally special aid which used Elementary Secondary education and remedial education. significant Sch. Aids at 3. The amount of this aid is not for the case, it in this purposes this so we do not address further opinion. legislature, part chapter
7 The ch. 121—the as of Wis. Stat. a provision on school finance —further includes on school dis- *13 EQUALIZATION AID the to According Legislative Bureau, Fiscal aid equalization "is intended to ensure differences in tax rate reflect primarily differences school dis- trict levels."8 spending Legislative Wisconsin Fiscal and Elementary Secondary Sch. Bureau, Aids at 10 (Jan. 1999). aid is Equalization distributed on the basis of a school district's Id. at 1. relative fiscal capacity. The majority of funds school are derived from property However, taxes. the since tax property base differs districts, between the state distributes aid equalization the according to formula set forth in Wis. Stat. 121.07 § (1997 98).9 aid Equalization each provides qualifying — school guaranteed district with a tax base, thereby standards, trict which directs school boards to maintain certain requirements, facility standards, licensure and curriculum and (1997-98). testing procedures. standardized Wis. Stat. 121.02 This is incorporated subchapter general statute into the on aid. 121.02(L) provide regular Section directs local school to boards particular elementary grades, instruction in courses in the grades 5-8, grades 9-12. equalization component general We note that aid is a Elementary Secondary school aids. Sch. Aids at 1. Other general integration special adjust school aids include aid only ment at equalization aid. Id. 11. We discuss in detail aid many integration because school districts do not receive either adjustment special aid or aid. Id. at 12. A school district receives integration change aid when it transfers to racial students the Special adjustment given balance of the district. Id. aid to a is aid, general is experiencing district that reduction in school consolidating. when a district at school Id. 13. We also note that a portion equalization the School District of Milwaukee's goes paying aid the toward for Milwaukee Parental Choice Pro
gram at and charter schools. Id. 13-14. subsequent All references to the Wisconsin Statutes are to text otherwise 1997-98 unless noted. ability
minimizing in the school districts differences Equalization through property tax. aid revenue raise any compensates in a district's tax deficiencies provided by guaranteed up amount base up equalization "make[s] words, aid state. In other actual tax base the difference between district's *14 guaranteed Elementary statefs] tax and and the base." Secondary Aids 7. Sch. at equalization Computation of state aid 7. b) a) membership,
depends cost, shared on five factors: d) c) guaranteed equalized property valuation, valua- e) funding. tion, and the amount of available Elementary Secondary Aids at The number and Sch. 7. in a district determines the dis-
of students enrolled 121.07(l)(a). membership. § Stat. Shared trict's Wis. general cost is the "sum of the net cost of the fund and 121.07(6)(a). § the net of the service fund." cost debt represents expendi- cost those school district Shared equalization provides for which the formula aid. tures Elementary Secondary Equalized Aids and Sch. at 8. property is full of valuation "the market value taxable by property in the school district as determined the (DOR). year." Department of Revenue . .each Id. Dis- (DEV) equalized equalized is trict value valuation Elementary Secondary per pupil on a basis. See represents a Sch. Aids at 33. Guaranteed valuation guaranteed guaranteed at The tax base. Id. state (SGV) property is amount of tax valuation "the base support guarantees pupil." which the behind each state 121.07(7)-(8). § Id. at 8. See also Equalization applies ¶ 8. aid at three different spending spending district levels. District levels are defined terms of shared cost. The first level consists primary guaranteed per $2,000,000 tax of a base $1,000 pupil first of shared costs.10 Stat. Wis. (7)(a). 121.07(6)(b), (c), $1,000 The also is as referred to cost The primary ceiling. Legislative Fiscal Bureau further explains:
The first level is for shared costs to the up "primary $1,000 ceiling" per cost member. The state's shar- costs at ing primary cost referred as ceiling, "primary costs," using shared is calculated a statu- tory guaranteed $2,000,000 valuation per member. State aid at the is a primary level based on comparison equalized between school district's per guaranteed valuation the primary member and valuation; aid state will the amount of equal costs that would be funded the missing portion of the guaranteed Elementary Secondary tax base. Sch. Aids at 8. all some
Currently, districts state receive primary equalization primary guarantee aid. protected by a provision, hold harmless which means aids cannot reduce district's negative any primary *15 aid amount. See id. gives 9. The state aid to secondary equalization
¶ a school district when the district at a level spends ceiling between the shared cost and the primary secon- and ceiling. Elementary Secondary Sch. Aids dary cost 121.07(6)(d)l-2 at 8. See also Wis. Stat. and The (dg). § $6,285. Elementary secondary ceiling 1998-99 cost was Secondary and Sch. Aids at 8. The amount of aid is primary guarantee applies types A to different various primary guarantee school for K-12 school dis districts. The a $2,000,000. high primary guarantee trict is A is union school's $6,000,000, primary guarantee and the for a K-8 school is $3,000,000. opinion primary guarantee This on the focuses K-12 districts because most districts are in that cate gory. Elementary Secondary 9. Sch. Aids at per-pupil by a district's actual the ratio of
determined secondary guaranteed equalized valu- the valuation secondary guaranteed is a valuation The ation. $676,977. Id. it Id. In 1998-99 was amount. variable "tertiary shared cost" ¶ level, or The third 10. portion cost a school district's shared level, "is ceiling per secondary greater cost the than which is membership." by multiplied Wis. Stat. member its 121.07(6)(dr). legislature 1995, acted the Before system, employed was a two-tiered which the state replaced by under 1995 three-tiered the current tertiary aid is deducted amount of Act. 27. The Wis. secondary terti- if the amount of aid amount from the Elementary negative ary number. aid is a "nega- Secondary as This is referred to Sch. Aids at 9. tertiary secondary and However, aid." when tive resulting negative equal is number, the amount aid tertiary primary The aid. Id. not deducted from guarantee discourage designed from districts per ceiling, spending and to narrow at a level above the disparities. pupil spending Id. concepts, Applying the amount of aid these any may be determined receives at level
a district following formula: = 1-DEV/SGVx shared State aid cost11 general equalization formula to determine is: a school district receives amount of aid equalized district represents "DEV" As defined guaranteed the state valua figure, represents value "SGV" figure. tion
606 SGV) = Equalization (1-(DEV¡primary pri- aid x cost) mary shared + SGV) (1-(DEVIsecondary secondary x shared
cost) + SGV) cost) (1-(DEV¡tertiary tertiary x shared AID CATEGORICAL approximately categorical ¶ 12. There are aid programs.12 programs The formula-driven, are either they grant programs. programs are Formula-driven give funds to school districts on the basis of the number program. of students who meet the criteria for the Ele- mentary Secondary Sch. Aids at 14. Grant programs require proposal districts to submit Categorical equaliza- funds. receive Id. aids differ from they depend tion aid in that do not on the relative following categorical pro is a list of the state aid 1) 2) grams: education, handicapped county children with 3) (CCDEBs), disabilities education pupil transporta boards 4) 5) 6) tion, library, technology grants, TEACH block 7) training grants, TEACH and technical assistance telecom 8) program, technology munications access infrastructure 9) 10) loans, pioneering partners grants, bilingual-bicultural 11) education, (desegregation aid to Milwaukee Public Schools 12) 13) aid), preschool grade grants, settlement state tuition 14) payments; open payments, enrollment transfer full-time 15) open transportation, enrollment aid for alcohol and other (AODA) 16) 17) drug grants, supplement, head abuse start 18) programs, guarantee nutritional student achievement 19) 20) (SAGE), education, education driver children-at-risk 21) 22) programs, peer mentoring, review and CESA adminis 23) 24) tration, education, environmental alternative schools for 25) Indians, youth options open American enrollment transportation. Elementary Secondary Sch. at 14-25. Aids *17 Categorical not aids are a school district. Id.
wealth of statutory limits. into revenue calculated TAX THE LEVY CREDIT SCHOOL levy paid ¶ to munici- The school tax credit 13. categorical equalization palities, aid and in contrast to Elementary paid aid, are to school districts. which Secondary 1. Wis. Stat. Sch. Aids at See also 20.835(3)(b), designed §§ 79.10, The tax credit is 79.14. property 1998-99, In on a statewide reduce taxes. Id. portion levy the school credit reduced level, the school Elementary by average. on and Secon- oftax bills 16.8% dary at 29. Sch. Aids levy credit, In the school tax 14. addition to by funded local taxes are limited
district increases limit." Stat. amount, termed a "revenue Wis. fixed may only § if limits exceeded 121.91. Revenue be pass referendum. in a district a voter residents 121.91(3). may penalized § if the A school district be the maximum allowed revenue school district exceeds § 121.92. under 121.91. History
B. Procedural pro- turn to an examination of the 15. We now history initiated this of this case. The Plaintiffs cedural president Thereafter, action October (WEAC) Association Council Wisconsin Education ("the Plaintiffs") Intervening inter- other teachers Intervening Plaintiffs, Plaintiffs, vened. summary judgment filed cross-motions for Defendants February 24,1997. on
¶ 16. The Petitioners13 contend that the needs of changing Wisconsin students are and that the school system kept up They finance has not with those needs. perceived inequities contend that in the uniformity Equal violate the clause and the Protection contrary Clause, to the Wisconsin Constitution. The inequality adequately adjust stems from a failure "to (Pl.-Pet'r's 4.) disparity for the in tax base." Br. at As a *18 property opportu- result, nity wealth dictates educational argue. state, in this the Petitioners According categorical ¶ Petitioners, 17. to the "effectively reduced, aids have been which restricts dis- spending by preventing trict the school board from compensating for the reduced state aid with additional property (Intervening tax revenue." Pl.-Pet'r's Br. at 12.) shifting away This results in school districts funds regular programs categorical programs. from and into teaching result, As a some districts are unable to retain positions or maintain school facilities. Other districts offerings placement have cut their in advanced or mul- tiple foreign languages. .
¶ 18. The Petitioners further contend that reve- prevent raising nue limits school from districts necessary funding. pro- instance, For revenue limits purchasing hibit implementing school districts from technology. new argue ¶ Moreover, the that there 19. Petitioners significant "high been a increase in need" students has High impover- need Wisconsin. students include Intervening We refer to the Plaintiffs and Plaintiffs col "Petitioners," lectively except referring the as when procedural history Throughout opinion, this this we also case. identify specific arguments by made either the Plaintiffs or the "Plaintiffs-Petitioners," Intervening Plaintiffs their briefs as "Intervening or Plaintiffs-Petitioners." children, children, disabled and children with
ished programs English Additional have been limited skills. government mandated either the state or the federal necessarily high students, for these increasing funding need but without programs. for the Finally, Intervening Plaintiffs-Petition- and the ers contend that charter schools Milwaukee Program pull students out of Parental School Choice public schools. This turn decreases the number reducing pupils, members, district, in a school funding amount of the district receives. court, 21. The circuit the Honorable Richard J.
Callaway presiding, Kukor, found that under 148 Wis. 2d finance is constitutional and school summary granted judg- the defendants' motion for ment. The court first noted that all children in this right equal However, state have an education. "mistakenly Plaintiffs framed the issue as whether the money State in a manner distributes its which budgets equalizes local rather than whether the chil- receiving dren of Wisconsin. . .are the education to *19 they which are entitled." The court then concluded that Intervening the Plaintiffs and Plaintiffs had not over- strong constitutionality presumption come the that enjoy. e.g., See, statutes v. United States National (1963). Dairy Corp., Prod. 372 U.S. system
¶ 22. The school finance
does not violate
uniformity
constitution,
clause of the
the circuit
according
interpre-
found,
court
because
to this court's
uniformity
Kukor,
tation of the
clause in
2d at
Wis.
(Ceci,
(Steinmetz,
plurality);
J.
¶ 23. The circuit court also determined that the system equal protection. school finance does not violate repeatedly The court Intervening noted that the Plaintiffs and give virtually any failed
Plaintiffs to evi- relating quality dence to the of education students therefore, in Wisconsin, receive the court could not being deprived ascertain whether students are of their right significantly to an education. The state has public schools, total aid to the increased its state outweighs any disproportion- the increase in state aid wealthy property ate distribution of tax credit recognized owners. The court further that the current system provides more schools across the board with system state aid at issue in Kukor. The schools than problems they face the same did the Kukor when system, court reviewed the and the Kukor court was unpersuaded those facts. sum, In the circuit court concluded that Intervening
Plaintiffs and Plaintiffs did not demon- impact system's negative finance on strate evidence, had no education. such the court Without magnitude any way deficiencies in to ascertain "the duty provide the State's effort to fulfill its students education." with basic agreed plain- appeals that the 25. The court of any difference
tiffs did not demonstrate material system and the at issue between the current signifi- slip op. words, In no Vincent, Kukor. at 6. other disparities given exist the aid under cant between system. Slip op. Moreover, the court either at 28-29. at of children who do not receive found no evidence op. Slip fact, at 32-33. In least a education. basic suggests state concluded, "the evidence that the court providing greater than it did at aid to school districts Slip op. decided." at 33. the time Kukor was *20 Dykman Judge 26. concurred the court of appeals' decision, but noted the record demonstrated spending laboring school districts are "that lower very slip op. Vincent, under difficult conditions." at 35 (Dykman, concurring). J., The concurrence also lamented that Kukor contained no test for the court of appeals assessing system to use in the current finance "substantially improved programs and that are needed Slip op. affluent districts." at 36. our less school analyze part opinion In II X, of this we art. light history § 3 in its this constitutional and explain court's past precedent. Kukor, We affirm but further equal opportunity the Kukor definition of for an educa- parts tion. In III and IV we address whether §X, current school finance violates art. 3 and §I, 1 the art. of Wisconsin Constitution.
HH HH
begin by interpreting
uniformity
¶ 28. We
§
X,
Constitution,
clause
art.
3 of the Wisconsin
nearly
that the
which states
district schools "shall be as
practicable."14
interpret
uniform as
constitutional
We
provisions
Thompson Craney,
de novo.
v.
199 Wis. 2d
(1996).
674, 680,
however,
from the of the circuit court and the court of appeals. recognize purpose 29. We that "the clear of art. compel § power
X, 3, was to
the exercise of the
to the
designated."
extent
1,
v. Joint Dist. No. Belle
Zweifel
(1977).
ville,
towoc,
¶ 30. Three sources our of a provision: plain meaning constitutional "the of the words the context used; the constitutional debates practices writing and the in existence at the time of the interpretation of the constitution; and the earliest provision by legislature the as manifested in the passed following adoption." first law Id.
¶ 31. The X, word "uniform" the context of art. plainly pro 3 refers "character of instruction" public vided schools. In T.B. Scott Lumber Co. v. County Oneida another, 158, 161, 72 Wis. 39 N.W. (1888), organization 343 this court found that the of a
613 system15 township did the uniform- school not violate By finding ity township § X, clause under art. implied "uniform," this court that it did "uniformity." equal acreage equate with Suzanne not Exception the Rule: Fun- Steinke, M. The Wisconsin's Right damental to Education and Public School Financing, [hereinafter, L. Rev. Wis. Exception Rule]. Later, to the in State ex rel. Zilisch (1928), Auer, 284, 290, 221 v. 197 Wis. N.W. we uniformity §X, determined that clause in art. *22 public related to the "character of instruction" at the they established, schools after not the "method of were forming fixing districts," school or district boundaries. "Character of instruction" was described as "the train- ing give that these schools should to the future citizens representative of Id. These demon- Wisconsin." cases jurisprudence on, strate that from our earliest we have uniformity construed the clause to relate to "char- public schools, acter of instruction" offered composition size, boundaries, not the of the school Exception Rule, districts. See also The to the 1995 Wis. L. at 1400. Rev. practices
¶ 32. The in existence around the time guide of the constitutional conventions further our Const, interpretation §X, art. Wis. Before elementary secondary 1800's, schools were mid— generally privately LeRoy, Egalita- funded. Erik rian Roots Education Article the Wisconsin History, Interpretation, Constitution: Old New Busé v. [herein- Criticized, Smith L. Rev. Wis. Egalitarian Roots]. Exception after, See also The to the 15 township system A organized was and taxed Patzer, through a town. Public Education in Wisconsin at 63. system, independent Under this school districts became sub- greater township districts of the school unit. Id. govern-
Rule,
free school education in Wisconsin. Roots, 1981 Wis. L. First, Rev. at 1347. some viewed public opportunity schools as an to eliminate distinc- wealthy poor.16 tions between the and the Id. at 1346. public way integrate Others viewed schools as a immigrants swell of new with Coast "trans- East plants." Finally, simply Id. at 1347. others wanted to pay use state funds to "to for education." Id. at 1348. appears ¶ 34. It the time of the 1846 con- general support convention, stitutional there was for a provision Egalitarian constitutional on education. Roots, 1981 L.Wis. Rev. at 1348 and n.101. The 1846 support constitutional convention manifested its by devoting 500,000 education acres land, which the government give upon federal was to to Wisconsin attaining Unfortunately, statehood. Id. at 1349. how- relating ever, no debates ensued to the X, draft of art. *23 § 3 at either the 1846 or 1848 constitutional conven- provision wholly tions because the was uncontroversial. Id. at 1350. Finally, early
¶ we examine the
state stat-
utes on school finance. The state laws of 1848
statutory provisions relating
contained a number of
to
public
comprehensive
the
schools. The most
statute on
public schools included a detailed section on local
suffrage
The
movement has
pro
also been credited with
moting public
Egalitarian Roots,
education.
taxes17 and a section on distribution Purposes: Taxes for School Laws of 1848 —Of duty supervisors of the towns in Sec. 90. It shall be the of the by every district in their this state to assess the taxes voted chargeable town, provided chapter in this and also all other taxes upon property against the of the such district or town taxable respectively, place and to the same on the town or town district roll, column school taxes and the same shall be assessment in the of by in the same manner collected and returned the town treasurer compensation as taxes. and for the same town upon supervisors The of each town shall assess the Sec. 91. property than one half of the taxable of said town a sum not less state, by said town from the school fund of this amount received in the same manner and the same shall be collected and returned provided preceding apportioned as is in the section and be shall proportion in to the the several school districts the town number ages twenty in each district the of four and of children between years support for the of schools therein. upon supervisors Sec. 92. The shall also assess the taxable township property the of their two and a half mills on each dollar of year apportioned thereof in each which shall be to the valuation townships support several school districts in the for the of schools levied, therein, [sic]and returned in and the same shall be eallected provided preceding the same manner as is in the section. any regularly meeting Sec. 93. Each school district at called may defray legal the of said district raise an additional tax to voters wages contingent expenses: expenses of teachers and said pro- as tax shall be levied collected and returned the town taxes Provided, any act: that when a tax shall be voted in vided for this meeting meeting, specify the notice for such shall school district object raising tax. such delivery supervisors Sec. 94. The on of the warrant for the treasurer, collection of taxes to town shall also deliver to said taxes, treasurer a written statement of the amount of school property purposes amount raised for district on taxable of each town, belonging any district the amount new district on persons and the names of all the division the former district having judgments provisions chapter, under the assessed of this upon property any payable the taxable district with the amount person to such on account thereof. of each retain in his Sec. 95. town treasurer town shall moneys out of the collected him the full amount of the hands *24 "An Schools," the school fund. Act Relation to Public p. Significantly, 1848, 240-41, Laws of 243. Section 91 required receiving the statute each town state funds at match least half of the amount donated property state. Section 92 set the tax at "two and a half provided mills on each dollar." Section 93 for an addi- tional tax that could be raised after a vote was taken to wages expenses. fund teachers' The school fund provision stated that towns would receive interest from proportion "in school fund to the number of children in such 104, town-" Section Distribution of Income of p. Fund, 1848, School Laws of plain meaning, practices
¶ 36. The around early the time of the convention, constitutional and the statutes all X, indicate that art. intended was given refer to the character of the instruction at the public schools.
¶ 37. We turn now to this court's more recent precedent regarding school finance. This court has directly constitutionality examined the of the state years. school finance twice in the last 25 At Busé, issue in 74 Wis. 2d at were statutes that two negative created districts, aid for certain positive reduced the aid those districts could have plaintiffs, negative received. The aid school dis property taxpayers residing negative tricts and in the argued negative districts, aid school that the aid stat argument utes were unconstitutional. Their main was roll, school tax collected on the assessment and hold the same subject to the order of the district treasurer. apply Sec. 96. Said treasurer shall from time to time to the county moneys belonging treasurer for all school to his town or the thereof, moneys receipt apportioned districts and on the ofthe to be districts, notify to the he shall the town clerk of the amount to be apportioned. *25 statutory negative provisions violated the aid that the § 1 taxation, VIII, in art. articulated rule of uniform at Busé, 74 Wis. 2d 554. Constitution. the Wisconsin negative Additionally, aid addressed whether the court §§ I, 3 and 4 and art. X, under art. unconstitutional was § Id. at 562. 1 the Wisconsin Constitution. the stat-
¶
first examined whether
38. The court
Const,
uniformity clause of Wis.
art.
the
utes violated
specifically
§
X,
whether art.
The court
considered
X, 3.
legislature
provide
equal oppor-
requires
§
an
3
the
"to
tunity
children in the state."
education for all school
for
recognized
Busé, 74
2d at 562.
court
Wis.
require
Constitution does not
the United States
while
Indep. Sch.
schools,
San Antonio
the establishment
(1973),
Rodriguez,
that the
schools
may
practicable"
children in the state
attend
and that
charge.
public
Id. at 565.
the
schools without
pertinent
Having
the
constitu-
39.
set forth
provisions,
of the
the court held
framers
tional
nearly
phrase
uniform as
intended the
"as
constitution
practicable"
at
refer to the "character of instruction"
to
(quoting State ex rel.
the district schools. Id. at 566
289-90,
860,
Auer,
284,
v.
N.W.
Zilisch
Wis.
(1928)). The court further stated that
Constitution, the court examined whether local district
funding
required by
control of
was, in
measure,
some
Busé,
the constitution.
¶ pro- 41. The court then found the aid light visions unconstitutional of the uniform tax rule § VIII, art. 1 of the Wisconsin Constitution. The power court set forth the tax, limitations on the noting purpose [a] that "the tax must be one which pertains public purpose to the of the district within tax which the is to be levied and raised." Id. at The 577. " power entity state does not have the to tax a local 'for purely purpose.'" (quoting local Id. at 576 Thomas M. (1924)). Cooley, pp. Taxation, Law 86, 211, 212 As compel such, concluded, the court "the state cannot one levy school district to and collect a tax for the direct districts, benefit of other school or for the sole benefit the state." Id. at 579. Finally,
¶ 42. the court examined whether the negative provisions equal protection aid violated process. equal due Because the court held that educa- opportunity right, tional is a fundamental the court applied scrutiny equal protection the strict test to its analysis. Id. at 580. The court then concluded that the negative provisions scrutiny. aid survived strict Id. negative as a aid ¶ viewed 43. The concurrence (Robert Hansen, W. Busé, 2d at 581 tax. 74 Wis. state agreed concurring). with However, the concurrence J., municipality majority forced to cannot be that a ordinarily obligations Id. it does not have. that assume (quoting County, Chippewa 93 Wis. v. Lund (1896)). 648-49, 67 N.W. disagreed negative aid vio- The dissent 44. Busé, 2d at 583 rule. 74 Wis. the uniform taxation
lated
(Abrahamson,
dissenting).
first noted
The dissent
J.,
majority
this statute
had not "accorded
that it felt the
constitutionality."
proper presumption
Id. at
argued
"not
Moreover,
it was
clear
the dissent
584.
beyond
question that the statute conflicts
reasonable
doubt,
a court must
constitution," and when
with the
"
validity
(quoting
ex
act.'" Id.
State
. .the
of the
'favor.
563, 579-80,
Davidson, 114 Wis.
Richmond v.
rel. New
(1902)).
596,
court as "whether public purpose Busé, 74 2d at 589. doctrine. . . ." Wis. negative "applies aid across the dissent found that "[n]o dis- districts," and one school state to all school support singled another school district trict is out to Moreover, felt at 594. the dissent state education." Id. *27 just negative should not be invalidated that aid pay Id. some, all, not districts have to it. but because provisions negative aid concluded that the The dissent precedent. Id. at 594-95. were consistent with plu- recently, Grover, the in Kukor v. 46. More agreed rality §X, that under art. 3 of and concurrence guaranteed each student is Constitution Wisconsin (Ceci, plural- J., 148 2d at 503 education.18 Wis. basic 18 Supreme Court's adopted the United States We have holdings opinions applying of that plurality treatment of ity); (Steinmetz, concurring). J., id. at 514 plurality agreed and concurrence further that educa- absolutely satisfy tion does not have to be uniform to (Ceci, plurality); §X, art. 3.19Id. J., at 487 id. at 514 (Steinmetz, concurring). plurality J., Second, the legislature's held concurrence that the fiscal decisions regarding great are education (Ceci, entitled to deference. Id. plurality); (Steinmetz, at J., 502-03 J., id. at 512 concurring). plurality Third, the and concurrence held necessary analyze funding that it is not the school scrutiny, equal under strict because allocation right.20 of state resources is anot fundamental Id. at (Ceci, plurality); (Steinmetz, J., 498 concurring). id. at J., 5.13
¶ 47. The dissent characterized the state school
system "fundamentally
finance
as
flawed" because the
according
state,
dissent,
to the
did not take educational
distributing
need into account when
funds. Kukor, 148
(Bablitch,
dissenting).
Wis. 2d at 516
J.,
The dissent
Lounge Management
Trenton,
v. Town
Court.
13,
219 Wis. 2d
22,
Bailey,
Tomczak v.
(1998);
580 N.W.2d
218 Wis. 2d
21 -
(1998)
245, 284,
(Crooks, J.,
for the we constitutionality considering of school of states systems toward the notion of edu- have turned finance previous approach adequacy than cational as better analyses. e.g., McDuffy equality See, v. educational Secretary others, Executive Educ. Office of (Mass. 1993) (quoting v. Rose 516, N.E.2d 554 (Ky. Educ., 186, 212 Inc., 790 S.W.2d Better Council for (W. 1989)); 1979). Kelly, Pauley S.E.2d Va. v. approach adequacy finance refers to school quality of "the of the educational to an examination disadvantaged dis- children in services delivered to tricts_" Leaving Equality Behind: New Enrich, Peter 48 Vand. L. Rev. Reform, in School Finance Directions (1995) Leaving Equality [hereinafter, 101, 109 Behind]. adequacy as an have turned toward 49. Courts systems analyze way school finance
alternative equality previous centered on have decisions because *29 not lessened the between school districts. disparity Behind, Leaving Equality L. Vand. Rev. at 102-03. claimed, on it is has a Focusing adequacy, number of benefits, benefits. other Among the adequacy approach in "grounded shared broadly societal values concern- ing importance of education and the to obligation provide the basic needs of society's least Id. at 170. The adequacy advantaged." also approach may appealing be because it does not threaten to lower of achievement in some in districts an effort to level Id. create equality. 50. Under the adequacy gen- a state approach,
erally types lists of that a should knowledge child guide to possess legislature its fulfilling constitu- tional For obligations. Massachusetts example, the following guidelines: articulated An possess educated child must "at least the seven (i) following capabilities: sufficient oral and written communication skills to students enable to function (ii) complex rapidly in a and changing civilization; economic, social, sufficient knowledge and politi- cal systems to enable students to make informed (iii) choices; understanding governmen- sufficient tal processes to enable the student to understand state, community, the issues that affect his or her (iv) nation; and self-knowledge sufficient knowledge of her physical his or mental and well- (v) ness; grounding sufficient in the arts to enable each her appreciate student his or cultural and (vi) heritage; historical sufficient training prepa- ration for advanced training either academic or vocational fields so as to enable each child to choose (vii) life pursue intelligently; work suffi- cient level academic or vocational skills to enable public school students to compete favorably with surrounding counterparts states, in aca-
their job in the market." demicsor (quoting
McDuffy, Rose, 790 S.W.2d N.E.2d at 554 212). type the content articulates This of standard at Leaving Equality Behind, 48 adequate education. an used this that have L. Rev. at 176. Courts Vand. legislative "displace attempt approach not do parameters identifying for the realistic function of [attempt] aas to serve ambitions, but rather state's goad accomplish- legislature's backstop to the or as a Massachusetts, it was Id. In of that task." ment likely judicial expected intervention would limited productive." "quite Id. be *30 opportunity equal edu- a sound basic
¶ An for 51. equip their roles as students for is one that will cation economically and them to succeed and enable citizens legislature personally. articulated a standard The has equal opportunity in a sound basic education for 121.02(L). 118.30(lg)(a) §§ Section and Stat. Wis. adopt 118.30(lg)(a) board shall that "each school states science, pupil mathematics, in academic standards history." writing, geography reading Section 121.02(L) requires that "each board subjects, .provide accord- in several instruction" shall.. grades. ing to school By grounding statutes, we
¶
standard
52.
position
503,
Kukor,
I—I I—I I—I 54. We now consider the Petitioners' argument that the statutory school finance system set forth in Wis. Stat. ch. and Wis. Stat. 79.10 79.14, §§ lacks uniformity under art. X, 3 of the Wisconsin Con § stitution. A party challenging statute must prove the statute is unconstitutional beyond a reasona v. ble doubt. Norquist Zeuske, 2d 241, 250, Wis. opportunity proficient subjects be in these core equal practicable; must be as as performance proficiency on expected tests is not equal. to be poor This means that student performance proficiency not, on tests in school districts is with more, out much an indicia of the unconstitutionality of the state system. school finance (1997-98) Stat.
22 Wisconsin 118.30 was the result aof coordinated effort part on the of both legisla the executive and *31 tive government. branches of instance, Wisconsin state For the superintendent state responsible general pupil is for assess given 4th, 8th, ments in the grade, 118.30(l)(a), and 10th and § department the develop high graduation must a school exami pupil nation based on academic if standards academic 118.30(l)(b). by governor. standards are issued the In § accepting applying and today, the standard set forth this court cognizant role, is respective its and the roles of the other co equal government branches of in Wisconsin. (1997). challenges ato "Constitutional
N.W.2d strong presumption of consti- must overcome statute constitutionality tutionality," presumption the every greatest make effort to tax statutes. Id. We Id. the constitution. construe a statute consistent with proved beyond a have not conclude the Petitioners We statutory sys- school finance that the reasonable doubt adequately § funds X, 3. The state tem violates art. provide education, for a basic each school district any disparity is a dis- districts result of between revenue-raising capacity state's trict above the equal opportunity guaranteed right The to an tax base. education has not been shown to be for a sound basic system. present finance school violated begin by briefly summarizing the Peti- 55. We challenge arguments relating under to their tioners' X, 3 the Wisconsin Constitution. Both art. Intervening and the Plaintiffs- Plaintiffs-Petitioners system argue finance fails Petitioners that equalize they because, contend, does the state not (Pl.-Pet'r's financial resources between school districts. 33.) Intervening 41; Br. at The Plain- Br. at Pl.-Pet'r's argue Legislature specifically that the tiffs-Petitioners sys- disparities "eliminate the tax base from the should (at so tax the same level tem districts that whatever 71.) (Pl.-Pet'r's they choose), spend Br. at the same." Intervening ¶ 56. Plaintiffs-Petitioners argue sys- a school finance the state should create ignores, differing "recognizes, tem that rather than high property-poor needs needs of both districts 34.) (Intervening Br. at Pl.-Pet'r's Essen- students." tially, Intervening like Plaintiffs-Petitioners would financing adjust finan- the state school into cial resources distributed to school districts to take educating high need students. account the cost *32 35.) (Intervening Intervening Pl.-Pet'r's Br. at Plaintiffs-Petitioners also would like state to for- objective mulate standards to measure whether receiving students are at least a basic education. 34.) (Intervening Pl.-Pet'r's Br. at Historically, ¶ 57. this court has held that dis- parity revenue-raising capacity in the of a school uniformity district does not of the constitute violation earlier, Zilisch, clause. As we stated 197 289, Wis. at phrase, nearly we considered whether the "as uniform practicable," establishing as referred to the method maintaining school districts, or to after schools the dis- tricts were established. The court looked to the language §X, 3, of art. which to refers "the establish- guidance. ment of language schools," district Id. This applied revealed that the framers the uni- formity themselves, clause to the schools not to the creation of the school districts. Id. at The court explained provision spoke that the "the to character of given instruction that should be in those schools after training formed, the districts were —with give these schools should to the future citizens of Wis- consin." Id. Similarly, Appeal
¶ 58. in Larson v. State Bd., (1973), 827-28, 2d Wis. N.W.2d 920 this court again § X, held that 3 of the art. Wisconsin Constitu- applies to in schools, tion the "character instruction" not nature of the boundaries school dis- between appellant tricts. The relating in Larson forth set evidence equalized to the valuations, the number of stu- dents, and the size the Watertown and Johnson Creek school districts. Id. at 826-27. The court refused Const, apply analysis §X, an under art. Wis. pertain the court that those did not because found facts character of instruction the districts. Id. at that this court does not review 828. Larson reaffirmed *33 guise composition under the of an the of school districts analysis. §X, art. 3 very signifi-
¶ find to be We this conclusion 59. argue that some school districts cant. The Petitioners property raise as have values and therefore cannot low However, accord- much revenue as other districts. local ing reading does Zilisch, to a careful the constitution revenue-raising require not districts to have uniform capacity. stated that districts are not The Zilisch court required boundaries, or to estab- to have uniform be 290. Zilisch, uniform manner. 197 Wis. at lished in a 410, 420, 2d Sosalla, Sch. Dist. v. 3 Wis. See also Joint (1958). 357 If the framers of the state consti- 88 N.W.2d tution did not intend the districts' boundaries surely uniform, to then method of establishment be taxing framers could not have envisioned districts' taxing ability capacity uniform, to be since bounda- ries interrelated. are only requires Moreover, the constitution 60. equal opportunity child receive an for
that each
recognized Busé
children
sound basic education.
right
"equal opportunity
an
for
have a
to
fundamental
Busé,
See
Dist.,
636-37,
829
we
65 Wis.
N.W.
legislature
provided
has
each
stated that "when the
privileges
school,
of a district
which he or
such child
freely enjoy,
requirement
may
the constitutional
she
complied
Later,
Grover,
in Davis
that behalf is
with."
v.
(1992),
501,
held:
539,
2d
¶ 62. A review other art. X of the helpful Wisconsin Constitution is further in ascertain- ing drafting the framers' intent in X, X, art. 3. Article provision § 5 is the one constitutional that allocates public state funds for the school districts. It states that *34 income from the school fund to be "in distributed just proportion some youth to the number of children and ages
resident therein between the of four and twenty years...." provision This articulates extent the funding obligation of the state's to the school districts: provide funding per-pupil plain to on a basis. The meaning provision supports of the this fram- view—the phrased purely ers their directions mathematical "proportion" provi- terms such as and "number." The language sion does not include from which we could infer that certain children were to be allocated more funding subjective than others based on alone. need Const, analysis § X, 63. An of Wis. art. 4 fur- supports requires §X, ther our conclusion. Article support towns and cities to raise a tax to the schools Const, § X, located within that area. art. Wis. In recognized importance Busé, 2d at we the Wis. Experience quoted §X, of local control under art. 4. We Estabrook, Chairman the the of Constitutional Com- during mittee on Education School Funds the Convention, who Constitutional second Wisconsin support argued so local schools local funds should that poor, wealthy an "ade- citizens, all or would have public quate find his schools. We interest" in their repeating: language worth by not the school
If a sum was contributed sufficient more. fund, power the should have to raise towns advantage the directly was for the provision This children, family a poor.... poor [A] man with of, the fancy could understand dispose no lots to nothing if had shown that advantage. Experience by town, the was common schools contributed rose on their ruins. languished, and select schools large be was so as to school fund Connecticut defray expenses to of the education sufficient there, of the state. Yet every child within limits two, had year school-system the district until a adequate peo- was felt declined. No interest schools, they contributed ple, in common unless danger, the support. their To obviate this commit- tee inserted the section. had (quoting Experience Busé, 2d at 570-71 Esta 74 Wis. brook, Debates Constitutional Convention Journal and 335). p. § X, on 1847-48, comments art. Estabrook's constitutionally demonstrate that above mandated per-pupil expenditures, state the framers intended government significant local to contribute amount importantly, More school districts. Estabrook's com *35 may vary suggest ments that local districts school they spend tax and on their districts. the amount jurisdictions upheld have also their 64. Other systems pro- on the that the state school finance basis The a basic level of education. Minnesota vided for recently phrase, "gen- Supreme interpreted Court system public schools," uniform eral and contained in the education clause of Constitution, the Minnesota 'nearly and found that it did not mean" 'identical'" or" v. State, 299, 302, identical.'" Skeen 505 N.W.2d (Minn. 1993). system The Minnesota finance constitutional, determined, was the court because the system evidence did not establish "that the basic inadequate 'general require- that or and uniform' implies equalization ment somehow full of local referendum levies." Id. at 312. The court further stated inequities system that the in the did not "rise to the signifi- a level of cantly, constitutional violation." Id. Most recognized system the court that was constitutional because it continued to "meet the basic educational of all needs districts." Id. Virginia Supreme examining
¶ 65. The Court, in Virginia Constitution, education article of the held " require equality' it does not 'substantial spending programs among or within the school divi in the sions Commonwealth." v. Commonwealth, Scott (Va. 1994). 138, 142 443 S.E.2d ¶ 66. Other courts have examined whether the enough state funds each district to fulfill state mini- requirements. Oregon Supreme mum Court found compliance Oregon language under the of the Constitu- requires provides "if the tion state for a minimum opportunities permits of educational in the district and they the districts to exercise local control over what desire, furnish, and can over the minimum." Olsen v. (Or. 1976). Noting State, 554 P.2d that it did necessarily system not find the school finance "desira- ble," the court nevertheless held that the was constitutional. Supreme Further, the Colorado Court cau- uniformity provision
tioned that the
in the Education
prevent
Clause of the Colorado Constitution did "not
*36
providing additional educa-
district from
local school
beyond"
opportunities
constitutional
tional
Lujan
Educ.,
Bd.
v. Colorado State
standard.
1982).
(Colo.
Moreover, the
held
court
1005,
P.2d
uniformity provision
require identical
did not
among
expenditures
per-pupil
Id.
school districts.
jurisdictions support
¶
cases from other
68. The
uniformity
under Wis.
conclusion that the
clause
our
Const,
uniformity
require
§X,
art.
3 does not
absolute
per-pupil expendi-
offerings
either educational
among
also
school districts. The cases cited above
tures
system
a
finance
that uni-
demonstrate that
formly
provide a
level of
funds school districts to
basic
is constitutional.
education
presented
We now turn to the evidence
legislature
is entitled to deference
its
this case.
involving
"legislative policy
fiscal-educational deci-
(quoting Busé,
Kukor,
2d
148 Wis.
at 503
sions."
566).
Busé,
566,
In
2d at
2d at
74 Wis.
we
Wis.
explained
legislature
what uni-
that the
"determined
formity
uphold
'practicable.'"
[is]
a
court's
We
circuit
evidentiary
they
findings
or historical fact unless
are
clearly
Knoll,
58, 64,
v.
Treiber
135 Wis. 2d
erroneous.
(1987). The Petitioners made a volumi-
demonstrate
offerings
opportunities" in their course
and tech-
more
nology
(Pl.-Pet'r's
Br. at
than other districts.
quoting Deputy
Superintendent
State
Steven Dold's
They
deposition).
attempt
also
to demonstrate that
*37
facilities,
some districts maintain
textbooks,
better
larger teaching
Finally, they attempt
provide
a
staff.
to
showing
statistical and financial evidence
differences
equalized
They
valuations between districts.
then
Arizona, Ohio,
cite to case law
Vermont,
from
systems
invalidating school finance
on
based
financial
among
differences
the
school districts
those states.
Elementary
Bishop,
Roosevelt
Sch. Dist. Number 66 v.
(Ariz. 1994); DeRolph
¶ 72. While we that the Petitioners gathered qualitative pertaining have evidence to the deteriorating facilities, curricula, school limited computer technology "property poor" lack of of some agree Respondents districts, school we with the evidence of the elimination reduction of certain advanced or elective courses from some districts does mean not that those school districts fail to offer a basic 71-72.) (Resp't's strongly education. Br. at We also agree with the circuit court that the evidence fails to being show that the basic actual education received attending the students these school districts is inferior "property to that of the students the rich" school evidence, as circuit court There is no districts. college poor scores, test noted, standardized stated, have what rates, or the like. As we entrance equal opportunity required for a sound is an basic education. sys- present finance Moreover, the among effectively equalizes tax base
tem more system did at the time Kukor was districts than system decision, Kukor decided. At the time of the only 2d Kukor, 148 Wis. levels of shared cost. had two tertiary present at The now includes 476-77. tertiary of shared cost. effect of the level level has been to redistribute funds districts shared cost spending property are those with lower val- less, which present system equalize such, As does more ues. *38 values districts than found consti- between in Kukor did. tutional significantly funding has also 74. State figures compiled on
increased.23 Kukor was based
year. Kukor,
ment A-6, 1997-98, of Public Instruction at comparison, appropriated approximately the state Elementary Secondary $3,804 billion. Sch. Aids at 4, 1998, Table Between 1987 and aid state increased by every year, at least 4.9% fiscal and often much more. year instance, Id. For from the fiscal 1995-96 to the year, by 1996-97 fiscal state aid increased 31.8%.24Id. only contrast, In the Consumer Price Index reflected year. per increases between 2.3% and 5.4% Id.
¶ 75. The Petitioners also contend that the statu- tory limits are X, revenue unconstitutional under art. particular, Intervening § 3. In Plaintiffs-Petition- argue severely ers that revenue limits most affect decreasing populations, school districts with student many high (Intervening those with needs students. Pl.- 47.) Pet'r's Br. at agree
¶ 76. We do not revenue limits adversely constitutionality affect the of the school system. finance Revenue limits were included in the statutes, as we earlier. do noted Revenue limits absolutely not bar school districts from increased spending they merely require a voter referendum — 121.91(4)(f) (6), Moreover, do so. Wis. Stat. as 2903g, §§ created 1997 Wis. Act 2902v and mini- impact mize the on revenue limits school districts declining by adjusting with enrollments the method for counting pupils. Finally, revenue limits were intended provide property actually relief, tax have an equalizing spend effect, because districts that less can *39 by spending greater percentage increase their a with- seeking out first a referendum. Finally, by
¶ 77. we the note that cases cited the distinguishable on Plaintiffs-Petitioners are the facts. funding is state now committed to two-thirds of the school cost 27. districts' of education. 1997 Wis. Act distinguishable
Brigham the Con- because Vermont is provision requiring not a local stitution does contain Brigham, funding 692 A.2d at districts. 392. school DeRolph, Supreme 742-745, the In at Ohio N.E.2d many public in districts the Ohio Court concluded system wholly provide unable to the basic school were necessary students, and there- to educate the resources system Ohio the finance was violation fore, is not the case in Wisconsin where Constitution. This being provided. The resources are school basic system heavily at relied on finance issue Roosevelt "only partial attempts property at local taxation and Again, equalization." Roosevelt, at 877 P.2d 815. expendi- of the districts' state funds two-thirds employs three levels of tures Wisconsin heavy equalization Certainly, reliance aid. this is not attempt property a at on local equalization. taxation or half-hearted sum, 78. In the Petitioners have we conclude beyond proved a reasonable doubt that the statu- not tory system X, § art. 3. The state school finance violates provide adequately a funds each school district for any disparity education, between districts basic revenue-raising capacity a result of district above guaranteed right equal to an state's opportunity tax base. The has not sound basic education been violated the current school finance shown be system.
IV now address whether current school We protection equal I, finance violates under art. *40 § 1 First, of the Wisconsin Constitution.25 we must apply scrutiny determine whether to a strict or review urge a rational basis apply review. Petitioners us to scrutiny a strict standard of review. Equal protection guarantees "right
¶ 80.
statutory
free from invidious
be
discrimination
clas
governmental
activity."26
sifications
and other
(quoting
Jackson,
All
are bom
free and
and have certain
life,
rights; among
liberty
pursuit
inherent
these are
and the
happiness;
rights, governments
instituted,
to secure these
are
deriving
just powers
governed.
their
from consent ofthe
Equal
treatWe
Protection Clause of the Fourteenth
Amendment of the United States Constitution and the Wiscon
Benson,
equivalent.
sin Constitution as
Jackson v.
218 Wis. 2d
(1998).
n.28,
such,
900-01
have a fundamental
*41
right
education,
X,
is
on art.
and that
based
sound basic
§
Kukor,
2d
Constitution.27
148 Wis.
3 of the Wisconsin
567).
(quoting Busé,
However,
at
in
74 Wis. 2d
at 496
Rodriguez,
Independent
v.
San Antonio
School District
(1973),
(1973),
reh'g denied,
¶ that we should Petitioners relating equal protection to financial their claim review scrutiny. disparities districts under strict between They argue recognized the that since this court has equal opportunity for education as a fundamental right, scrutiny applies. strict carefully distinguish between the fun- 83. We right equal opportunity an for a sound damental § X, art. 3 and the wealth-based basic education under arguments words, make. In other the Petitioners right equal opportunity fundamental to an for a sound any education does not rest on classification basic In on wealth. Kukor we addressed a similar based Citing Rodriguez, argument. that a we concluded applied rational standard should be "because the basis rights premised at issue the case before the court are
27
right
that children do not have a fundamental
We note
San
under
the United
States Constitution.
an education
(1973).
Indep.
Rodriguez, 411
1,
Antonio
Sch. Dist. v.
U.S.
35
638
upon spending disparities
upon
complete
and not
opportunity
scope
denial of educational
within the
Kukor,
art. X."28
Skeen,
Wis. 2d at 498. See also
(citing
approach
at
N.W.2d
316-17
our
in Kukor with
approval).
argument
Since the Petitioners'
rests on
wealth-based classifications and not classifications
apply
§X, 3,
based on art.
we
the rational basis test.
give great
test,
84. Under the rational basis
we
legislative
deference to
classifications.
v.
Tomczak Bai-
(1998).
ley,
245,
2d
264,
Wis.
¶ 85. The classifications set forth rationally purpose Wis. Stat. ch. are related to the educating financing of system provides Wisconsin's children. The school guaranteed
all school districts with a sys- Moreover, tax base. the three-tiered shared cost implemented tem, decided, which was after Kukor was Allain, 265, (1986), Papasan In v. 478 U.S. the Supreme again analyzed United States Court whether a school funding equal protection. scheme violated The Court differenti allegations "petitioners minimally ated that have denied a been education," adequate allegations disparity and the in distrib uting petitioners funds. Id. The court the found that had not alleged minimally adequate the denial of a education because "they allege they [did] receive[d] not that no instruction on even Similarly case, the educational basics." Id. in this the Petition I, alleged equal protection ers have not a violation of under art. they allege since do not that students lack even a basic arguments, education. Their ade while couched terms of quacy, actually allege disparities. financial per pupil spending designed specifically
is to narrow financing sys- disparities The school districts. between equalize base, rate, tax not of the tem seeks to the Elementary Secondary Sch. Aids school districts. may actually Arguably, at of taxation 10. penalize districts because it is wealthier school spend higher designed tax districts that at level. (stating spends "[a] district that at a See id. higher per pupil will continue to level than another subject higher tax rate unless the district is not face a tax exceeds the to the formula because its local base base.") guaranteed the three-tiered such, state's tax As legiti- system rationally related to the classification providing equal governmental an mate end of opportunity education. for a sound basic Finally, legislative classifications set relating §§ forth in Stat. 121.91 and 121.92 Wis. pass test. limitations the rational basis We revenue agree Respondents that revenue limitations with reducing legitimate purpose state the risk "serve would use the additional state that local school boards spending keeping tax rates as aid to increase local they high as had been before infusion additional replacing property aid," state instead of local taxes. 85.) (Resp't's Br. at
V majority A87. of this court holds that Wiscon- right equal sin students have a fundamental to an *43 equal opportunity for a education. An sound basic opportunity is one that for a sound basic education will equip students for their roles as citizens and enable leg- economically personally. them to succeed and equal islature has articulated a standard for opportunity a in for sound basic education Wis. Stat. 121.02(L) 118.30(lg)(a) opportunity
§§ and as the proficient mathematics, science, students to be read- ing writing, geography, history, and and and to receive training, music, instruction in the arts and vocational physical foreign sciences, health, social education and language, age aptitude. in accordance with their equal opportunity An for a sound basic education acknowledges fungi- that students and districts are not ble takes into account districts with disproportionate students, numbers of disabled eco- nomically disadvantaged students, and students with English language long legisla- limited skills. So as the providing ture is sufficient resources so that school equal opportunity districts offer students the for a required by constitution, sound education as basic system pass the state school finance constitutional will muster.
¶ 88. We conclude that the school finance articulated Wis. Stat. ch. is constitutional under § § X, 1I, both art. 3 and art. of the Wisconsin Constitu- beyond tion. The Petitioners have not shown financing sys- reasonable doubt that the current school § X, 3, I, tem violates either art. or art. they prima therefore, have not made out a facie case support summary judgment. of their motion for
¶ I am authorized to state that Chief Justice ABRAHAMSON, SHIRLEY S. Justice WILLIAM A. join BABLITCH, and Justice ANN WALSH BRADLEY ¶ in 3, 51, in the standard we have set forth and 87. I am further authorized to state that Justice P. JON WILCOX, PROSSER, Justice DAVID T. and Justice join DIANE S. SYKES in our decision as to the consti- tutionality system. present of the school finance *44 appeals
By the court of the Court.—The decision of is affirmed. (concurring). agree I
¶ WILCOX, JON P. J. 90. challenge presents that the Petitioners' constitutional agree justiciable I also that the a issue for this court. financing system current of school constitutional to remand the case for further that there is no reason proceedings. agree
¶ However, I not the test that 91. do with examining majority opinion sets forth for whether the financing §X, violates art. 3 state school join I Therefore, do not the Wisconsin Constitution. majority opinion. ¶¶ 48-53, 3, or 87 of ¶ §X, 3 does not mandate absolute 92. Article uniformity equal opportunity education in all for (citing Majority op. ¶ in this state. at 46 school districts 469, 487, 436 568 Grover, Kukor v. 148 Wis. 2d N.W.2d (Steinmetz, (1989)(Ceci, plurality) J., J., and id. at 514 concurring)). Legislative in determinations the area of great school finance schemes are entitled to deference by Majority op. (citing ¶ Kukor, at this court. (Ceci, plurality) J., 2d at 502-03 and id. at 512 Wis. (Steinmetz, concurring)). J., majority court, Like the I conclude 93. this beyond not demonstrated a that Petitioners have present system of school reasonable doubt financing nearly practicable" is not "as uniform as as by guaranteed §X, art. 3 of the Wisconsin Constitution. respectfully I concur. ABRAHAMSON, 94. SHIRLEY S. CHIEF (concurring dissenting part part).
JUSTICE
majority
opinion
written
Justice Crooks estab-
3,
lishes
51 and
standard
paragraphs
X,
uniformity provision
of article
3 of
interpreting
3,
I join only paragraphs
the Wisconsin Constitution.
and footnote 2 of Justice Crooks'
In
opinion.1
*45
1
argument,
plaintiffs,
defendants at oral
unlike the
the
The
appeals,
plaintiff-intervenors,
the circuit court and the court of
request
did not
the court to set a standard. The defendants^
position
argument,
concurring justices,
like that
the
at oral
Sykes,
Justices David T. Prosser and Diane S.
was that
X,
interpreting
article
3 the Wisconsin
courts have no role
§
X,
Constitution;
only
legislature.
speaks
article
to the
§
suggestion
interpret
that the court should not
the uni
X,
contrary
formity provision
language
of article
3 is
to the
§
long-standing
"The
precedent.
the constitution and this court's
specific
guarantee
constitutional
of education flows from
provision
legislature provide
that
for the establishment of
[legislature's] power
district schools. Since the
to establish
specific grant
an inherent
schools existed without a
as
function
X, 3,
government..
purpose
was to
of state
.the clear
of article
§
designated."
compel
power
the exercise of the
to the extent
648, 658, 251
1,
v. Joint Dist. No.
76 Wis. 2d
N.W.2d 822
Zweifel
(1977).
principle"
A
of state constitutional
law is that
"fundamental
Constitution,
U.S. Constitu
the Wisconsin
in contrast with the
tion,
grant of,
upon, legislative power.
is not a
but a limitation
X,
grant
purpose
power
[of
3] was not to
a
to the
"The
article
schools,
legislature
power
for this
would exist with
to establish
power
of the
to the extent
grant,
compel
out
but to
the exercise
94,
designated."
Rapids,
Manitowoc v. Manitowoc
231 Wis.
(1939).
Smith,
98,
also Busé v.
74 Wis. 2d
contrast to the would the circuit cause to court. parties had 95. Neither the nor the courts have opportunity to consider the state school finance under the constitutional standard set forth majority opinion. Both the circuit court and court of might
appeals suggested other evidence that be majority presented opinion points in this case. The also majority lacking in to evidence that is the record. See establishing op. ¶¶ at 72. After standard of consti- interpretation tutional parties the court should afford the develop opportunity facts, an if additional Accordingly, I needed, in the circuit court. would remand the cause proceedings. the circuit court further remanding, my however, In I note concerns court, and those of the circuit the state school system failing respects. finance certain The state *46 system may failing provide school finance be to each of property-poor necessary the districts with the provide opportunity resources to all students with the for a sound basic education. The state school finance system may providing inadequate resources be to those X, upon power
Article
3 is "a limitation
the broad
of the
§
through
state to educate its citizens
the establishment
operation
precisely
of schools. The limitations
are
stated: Dis-
schools, uniformity,
trict
ages."
and free tuition for certain
Zweifel,
I with the the task of ing uniformity provision X, 3, the of article falls the on courts. § interpreting If the function of the Wisconsin Constitution were legislature, only left to the there would not a be violation of the doctrine, separation powers legislature of but also the would be empowered abiding by to amend the constitution without the requirements constitutional for amendments. disproportionately large high districts with numbers of parties should a chance needs students. have argument relating present evidence and to the stan- today. dard set forth
I—I The framers of the Wisconsin Constitution recognized importance they the of education when cre- governing funding ated article X the establishment public Creating system free and uniform schools. public among schools was considered to be the most Throughout essential of framers' tasks.2 the 1846 expressed conventions, and 1848 the framers poor, students, desire that all of Wisconsin's rich and together public would be educated in the schools.3 For example, requirement in article 4 that locali- X, funding "directly ties contribute to school was included advantage poor," of the it increased the because support commitment to local schools. Without local languished, "the common schools and select schools rose on their ruins."4 revolutionary goals sweeping
¶ 98. The explained by Root, X the state's article were Eleazor superintendent public first instruction and a mem- ber of the education committee at second explained pur- that the constitutional convention. Root pose permanently all the of article X was to secure sys- comprehensive public of a free and benefits -Patzer, E. Public in Wisconsin at 18 Conrad Education (.1924). (Milo Quaife, ed., 3 SeeThe Convention at 574-75 M. of1846
1919).
*47
Grover,
469, 489,
2d
645 excluded, are condemned tem. "None are —none grow up ignorance. in or fortune to accidents of birth part par- The state acts the of a wise affectionate bounty dispenses impartial an ent, and its with hand to up .[and] . to train them so as to all its children. seeks In render them useful and honorable citizens."5 State Auer, 284, 289-290, v. 221 ex rel. Zilisch 197 Wis. N.W. (1928), the court summarized the intent of the framers as follows: X, that significant applies [article 3]
It to — schools," of district not to the "establishment An establishment of school districts. . . . examina- tion of the debates in the conventions that framed present our constitution and the constitution of (which contained a provision) similar discloses conventions, they that the members of those when schools, framing relating were the article were concerned, forming not with the method of districts, but with the character of instruction that given should be those schools after the districts formed, training were that these schools —with give should to the future citizens of Wisconsin. X 99. Article read as a whole demonstrates that require legislature intended framers to cre- equitable ate and finance a school that is throughout uniform character the state and that provides equal opportunity educational for all students. "virtually
¶ 100. The constitution declares that public power function, education is a state based upon principle the well-established the whole state is interested in the education of the children of (Dec. Report Superintendent 31,1849) the State at 13 Appendix Plaintiff-Intervenors at 321. *48 by the state and that this function must be exercised people the as a whole. . . ."6 The framers believed that public the creation of free and uniform schools was "the only system depend preserva- on which we could for the legislature recognized tion of our liberties."7 The has that "education is a state function" and that "the state guarantee opportunity must that a basic educational pupil."8 be available to each
HHI—I plaintiffs ¶ 101. The focus their claim on the inequities per capita by in the student funds caused the provide equalization failure to sufficient aid.9 The plaintiffs "equity approach": they focus on the seek to disparity among eliminate the equalizing school districts recognizing resources, available while that spend individual school districts should be able to more They argue inequal- for their children's education. system adjust ities stem from a failure to adequately disparity property for the in the tax base.
¶ 102. The framers ofthe Wisconsin Constitution did not intend the school districts' boundaries to be Public Education in Wisconsin at 37 Patzer, Conrad E. (1924).
7 Kukor,
Debates,
Journal and
(quoting
uniform taxing spending capacity to uni- be school districts' ability taxing spending form, since and school But the state school are related.10 district boundaries provide districts and schools with finance must funding needed to meet the constitutional. man- *49 undisputed, record, The which is shows that date. vary widely spent per in the amount school districts $5,301), (ranging ability $13,534 to the student from every levied, mill in the to raise dollars for actual levy rates. plaintiff-intervenors,
¶
The
the Wisconsin
103.
Education Association Council and a number of teach-
ers and school administrators
from school districts
state,
the state
finance
across the
assert that
school
system is unconstitutional because it does not allow
significant
high
districts
numbers of
needs stu-
with
adequate
dents to
students an
offer these
educational
opportunity. High needs
include disabled
students
economically disadvantaged
children,
children and
English language.
children with limited skills
the
probably
concedes,
must,
The State's
as it
that it
brief
per
high
costs more
child to educate
needs students.
A
non-uniform education can result from
treating similarly situated students and school dis-
differently,
treating
tricts
it
but
can also result from
differently situated students and school districts in the
requirement
uniformity applies
the
to
districts
formed,
they
given,
after
are
to the character of the instruction
rather than to the means which the districts are established
Bd.,
Appeal
and their
v.
boundaries are fixed. See Larson
State
823, 827,
(1973);
56 Wis. 2d
current state school finance fails to account the distinct needs of school that dispro- districts have a portionate high students, number of needs so that these school provide districts are unable to educational that are uniform opportunities sufficiently or basic.12 example, For the plaintiff-intervenors emphasize, admits, State that State reimburses districts Kukor, 516-17, 525, In his dissent in 2d at Wis. which joined, I Justice A. Bablitch William wrote:
The fundamental that flaw of state formula is it distributes regard every dollars to educational It without needs. assumes that begins journey child in this state his or her educational from the starting point. began journey same If all children from *50 starting point, provide same then formula would no constitu- objection:every opportunity. tional child would start the same with may reality, exceptions, That well have been with few in 1848. reality today. significant It even is not close to The is that a result equal in opportu- number schoolchildren this state are denied an nity people. to become educated However, inspection a close of the record reveals that some while special "exceptional" being needs of students are met in districts, special programs such are overburdened school needs regular draining programs resources and staff from of instruction. plaintiff-intervenors Reply state issue The in the Brief at 16 as follows: [Wjhether categor- declining of revenue combination limits prevented aids have some of children from
ical Wisconsin's receiving equal opportunity the basic education and educational to they constitutionally which are entitled. educating only approximately cost of the 39% educating lim- students and 25% of the cost disabled (LES) regard English-speaking students. With ited economically disadvantaged students, the state school system provided on a has no extra resources finance statewide basis.13 system Because the state school finance educating high needs stu-
fails to address the costs argue plaintiff-intervenors that schools or dents, the disproportionate number of such school districts with provide anywhere near the students are not able to opportunities school dis- of other schools or educational finance the state school tricts.14 While implic plaintiff-intervenors note that the State has The by require more resources itly accepted that these children (Student program Achievement recently instituting the "SAGE" Education) basis, aimed at pilot on a which is Guarantee reducing high-poverty class size in schools. Plaintiff-interven- Brief at 14. ors biggest current state school problems One of the with the system, according plaintiff-intervenors, to the is the finance recently caps limits restrict adopted revenue limits. Revenue state aid and the amount of revenue a district can raise from seq. Stat. 121.90 et The base property local taxes. See Wis. spending from a district's spending limit is calculated statutorily year, and a defined flat rate the 1992-93 school year. spending is allowed each The increase spending increase may A school district per was student 1996-97. local $206 only a voter referendum. Plain exceed these revenue limits tiff-intervenors Brief at 10-11. argue plaintiff-intervenors that these revenue limits heavily system that to a state school finance is arbi-
contribute high trary take into account needs students. and refuses to based, according plaintiff-intervenors, on These limits are *51 misguided assumptions that all students cost the same to change and that educational needs do not over time. educate 650 especially property-poor fails school districts with dis- proportionate high students, of needs numbers plaintiff-intervenors property-rich assert that even disproportionate school districts that have numbers of high students, Madison, needs such as are unable to opportunities offer educational that are uniform with large the rest state.15 School districts with num- high may bers of needs students have to divert funds to pay higher high for the costs associated with the needs leaving students, other students at a disadvantage.16 example, Wausau, 107. for as a result of
Hmong
kindergarten
resettlement, has a
enrollment of
high
34% LES students. Because ofthe
costs associated
educating
only
portion
students,
with
such
a small
state,
which is reimbursed
the Wausau educa-
community
funding shortages.
tion
faces severe
staffing
Wausau
been
has
forced to cut
and is unable to
implement
programs.17
certain state-mandated
In
Milwaukee the school district suffers
being relatively property-poor
the combined effects of
a
15
high
impact
For a discussion of the
needs students
on
Heading
see Gia
Toward A
Weier,
district,
Madison's
Crisis?,
Isthmus,
19,
May
5 (discussing
at
Madison's
growing problem
providing adequately
for its disabled stu
maintaining
strong
dents while
curriculum
for other
students).
challenges
systems
For
finance
state school
based on
e.g.,
Rose v.
equality
see,
adequacy,
educational
and educational
Education,
Council
Better
(Ky. 1989);
district According high briefs, the which needs students. approximately disputed, of Milwaukee's 70% are not disadvantaged economically the extent students are they qualify lunch. Over for a free or reduced-cost that reported as home- students are 12,000 of Milwaukee's constituting of the student more than 10% less, population.18 more than 25% of educates Milwaukee of the more than 36% LES students and the state's poverty. living addition, In Milwau- state's students disadvantage comparative the that it has kee asserts being by richest of the state's a number surrounded thirty-four dis- of the Twelve school districts. "unequalized," in that are the State concedes tricts that they large disproportionately amount of have a schools, are within fund their which to resources with non-party commuting A brief distance of Milwaukee. Mayor Norquist by that asserts Milwaukee John filed "unequalized" drain stu- rich school districts these comparatively the teachers, and resources from dents, schools.19 underfunded Milwaukee that some shows The evidence submitted decrepit, that are old and school facilities Milwaukee staffing shortages education exist, and that vocational significantly programs have been reduced and other students limitations. Milwaukee of financial because averages dramatically in the state scored below System test Student Assessment 1997-98 Wisconsin by Department of Public Instruction. administered tenth-graders only example, 26% of Milwaukee For reading proficient score on the a or advanced achieved 9-10; Brief at Plain American Civil Liberties Union See Appendix at 282-85. tiff-Intervenors 19 Mayor Norqnist Brief at 6-8. See compared average examination, the statewide with 63%.20 plaintiff-intervenors argue
¶ 110. The Department tests statewide offered of Public eighth grades fourth, Instruction and tenth show economically disadvantaged students, that LES stu- drastically dents and disabled students have lower "proficiency achieving rates level of or above."21 *53 Although de-empha- ¶ 111. the defendants' brief opportunities sizes the differences in educational offered to students around the state and characterizes plaintiffs' anecdotal, evidence as the defendants dispute were not able to confirm or school dis- offerings, trict-specific allegations concerning course physical plants, staffing and other items. The circuit suggests property-poor court that at least some dis- having difficulty providing adequate tricts are with opportunities educational their to students. according
¶ 112. The evidence, to the circuit suggests inability court, that the school districts' to raise funds has resulted in increased class size with taught partially classes sometimes in condemned buildings, storage hallways, basements, rooms, audito- stages, facilities, rium unused shower elevator shafts janitorial closets. The circuit court found that delayed, resulting maintenance of facilities is often in antiquated leaking heating cooling systems, roofs, inadequate lighting running through and water Furthermore, walls. the circuit that in court found some districts textbooks are lack outdated a options computer math, in science, electives, advanced technology and extracurricular activities exists. Civil See American Liberties Union Brief at 10. Appendix See Plaintiff-intervenors at 324-325.
¶ also that The circuit court found school 113. pro- spend per to more student are able districts opportunities more a students with vide their variety property-poor of areas while students equal opportunities. educational districts do not have Dykman, Judge ¶ P. in his concur- 114. Charles Appeals, from the rence in the Court of concluded spending "lower school districts are labor- record that very ing conditions." under difficult provides recognize I that the funds 115. State limited-English speaking students and dis- educate categorical Although aids. abled students the form only por- the school districts for this aid reimburses educating high students, these needs tion the cost court on remand would determine whether circuit aid is sufficient to all school dis- this additional enable provide students with an tricts with resources equal opportunity for a sound basic education. Although equal I realize that dollars do necessarily opportu- equal translate to educational not nity, funding is clear differences it that substantial *54 may significantly opportunities affect students' to Money only affecting is learn. not the variable educa- legislature opportunity, it is one that the can tional but equalize. appeals
¶ 117. Both circuit court and court of the acknowledged they adequately that were unable to developed adjudicate this of the of a case because lack regarding requirements from this the standard court § I the X, article 3. would remand the cause to circuit proceedings light further in of the standard court for opinion majority present forth in case the sets the to met their determine whether the defendants have con- obligation. stitutional
¶ 118. The circuit court would determine disparities funding among whether the school dis- unacceptable inequality an tricts result in level of opportunity. educational The circuit court would also property-poor decide whether those students dis- disproportionate tricts inor school districts with high unaccept- numbers of needs students are offered ably opportunities. diminished educational plaintiffs' plaintiff-intervenors' the If proof sufficient, court circuit would not be limited choosing declaring to between the entire state school system finance constitutional or unconstitutional. It may system be that the state school finance is constitu- tionally acceptable districts, for some school but not for others.
¶ 120. If the circuit court were to declare all or part present system of the state school finance uncon- up stitutional, adopt it would not be to the circuit court to a state school finance circuit interpret court considers be constitutional. Courts representatives the constitutional As the mandate. people, legislature should craft the state school system. ways finance There are doubtless numerous a legislature might design acceptable constitutionally system. state school finance Any unconstitutionality
¶ 121. declaration aspersion legislative would cast no on the or executive government, assuredly branches of which have worked very system. hard to craft our current educational legislature appropriated money has vast sums education in this state. The executive branch has diligently improve proficiency. worked the students' legislative ¶ 122. The and executive branches recognize high and the of the citizens state cost of improving system, they further the educational but *55 improving educa- that the cost of not the also realize system will to the constitutional mandate tional meet president higher. Bok, Derek former be much As University, wisely you "If think educa- stated, Harvard try ignorance." expensive, tion ¶ I the cause to the circuit 123. would remand proceedings. forth, For the reasons set court for further separately. I write
¶ that I am to state Justices 124. authorized BRAD- A. and ANN WALSH WILLIAM BABLITCH join opinion. LEY this (concurring
¶ BABLITCH, J. A. 125. WILLIAM dissenting part, part). This case in is a landmark history for the of Wisconsin. For the of education state time, this court has articulated standard first guarantee our children of constitutional behind the jus- equal opportunity three an for education. With including joining part tices, writer, that of the this majority opinion a Crooks that articulates Justice guarantee education, standard for constitutional finally equal opportunity education has teeth. an Unfortunately, majority 126. different con- system present cludes that meets constitutional disagree. agree I I with concur- muster. Justice this rence/dissent Chief Abrahamson proceedings, case remanded for further should be opinion, light majority set in the of the standard we determine met the defendants have their con- whether obligation. stitutional This record raises serious and troubling questions our of education that about thoroughly should examined more below. be join paragraphs Accordingly, 3, I 87, foot- join majority opinion, note Section II of the *56 the of the Chief concurrence/dissent Justice.1 I to write fully more document the condition of education in this the state as shown in circuit court. This evidence is not dispute. in
¶ 128. This record demonstrates
that various
school districts suffer from woeful conditions: inade-
quate
offerings,
inability
course
an
to raise further
ever-increasing
for
funds
educational demands from
government,
special
the state and federal
and
needs
going
being
that are either
unmet
are
met
the
at
expense
regular
programs.
of
education
This record
great
disparities among
further shows
financial
this,
districts. As a result of all
it
as
of
cannot come
a
surprise that
of
tens
thousands of children
the
across
competency
reading,
state fail to
even
meet
basic
in
writing,
language,
mathematics,
science, social studies
today
adopt
we
standard
recalls the standard
I
which
my
urged
years
Grover,
in
in
ago
dissent
Kukor v.
2d
148 Wis.
469, 520-21,
(1989), joined
by
embracing opportunities equip broad educational needed to chil- citizens, political participants system, dren for their as roles competitors market-place and in both the labor market and the ideas, [citations omitted]. given by uniformity I conclude that the mandate clause in art. X, provide S of a sec. the Wisconsin Constitution is that the state that all character instruction the state schools such children provided opportunity equipped are with a uniform to become citizens, political system, participants their future roles as in the competitors intellectually. short, economically In both provide state must a allows each character of instruction that child person. opportunity an an educated become disparities a on on It was standard based not financial but adequacy provided. adequacy of the education I read point newly education as the adopted focal of our standard. major gaps have in knowl- children and edge arts. These progress. children, these skills basic to For guarantee of an education is an the constitutional empty promise. Despite and commendable the historic legislature support and the
efforts the Governor reading public left education, this record one is after many overwhelming that, realization for too with the children, efforts have not satisfied even our those *57 equal guarantee opportu- of an minimal constitutional nity adequate education. for an every ¶ citizen This record should leave 130. opportu- greatly and the lack of fairness concerned at nity For of children in our schools. for tens of thousands immigrants and with a com- a state founded built poor all, commitment rich to education and mon place regardless birth, this alike, of the accident have far from the dreams record that we drifted shows of our ancestors. categories
¶ distinct illustrate the 131. Several systemic problems in education. equipment. Undisputed affida- Plants and many in that conditions in
vits the record illustrate hardly are to educa- districts across the state conducive Leaks, deferred, if at all. tion. Maintenance is done go unrepaired. cracks, Libraries are lockers obsolete they inadequately Computers, exist, stocked. where largely out of date. are and are School buses run-down accordingly expensive dwindle, fix. to As buses more transportation time: dis- of students takes more One traveling leaving minutes, home trict has children arriving and at a.m. at 6:50 a.m. to school 8:20 storage hallways, rooms, trailers, 133. House shafts, In elevator like are used for classrooms. trailer, is in a no one school science class held but has equipment. being taught is science Social studies aoff Special therapy space cart, room to room. education is provided janitor's area; in a and in one school it is held storage stage. in off a room closet Another school janitor's suspension has school served in a closet. Many provide ¶ 134. are schools unable to facili- people ties that are accessible with disabilities. Playgrounds unequipped. unsafe, uninsured, are offerings. many
¶ 135. schools, Course In course offerings being are curtailed due needs in other edu- seriously cational areas. Textbooks are outdated. Languages completely have been cutback or elimi- subjects science, nated. Advanced courses such as technology taught year math, and on are an alternate family Electives, schedule. such as and consumer eco- nomics classes, classes technical education have counseling many been eliminated. Career schools severely training limited or nonexistent. Funds for computer technology unavailable, staff in are which together inadequate equipment impossi- with make it computer teach ble to basic skills. special
¶ 136. Children It is with needs. undis- puted public facing are the record that schools *58 significant special in increase the number needs stu- generally three, dents. These students fall into categories: overlapping, English sometimes Speaking Limited (LES) living poverty, students, children and The to children with disabilities. children come lacking language, social, school and cultural tools many granted. of us take for These children must be they begin taught to how to learn before can learn. commonly ¶ 137. A concern voiced numerous special programs districts in the state is that education eating up meet established to these needs are the dol- already programs. from lars other limited education Milwaukee are strik- The of Wausau and communities problem. ing examples this significant experienced a 138. Wausau has Hmong approxi- students, in the number of increase mately increasing years, percent in ten and the last percent steadily. kindergarten is 34 enrollment The problems significant. language are LES students. student, teacher and between Communications severely parent, are limited. teacher between including Accordingly, costs, indirect are costs, LES high; unfortunately, has state reimbursement been but Currently, per- decreasing. for the state reimburses costs, LES none for the indirect costs. cent of the direct these needs exceed $2.5 Direct costs associated with result, million. As a Indirect costs exceed million. $1 programs has had to curtail Wausau School District staffing. grossly in its It is understaffed health increasing program, despite the number services high greater require- have needs students who health implement to ments. Wausau has been unable foreign language pro- state-mandated middle respect gram. cuts It has forced to make with been programs. development It has and teacher mentor staff five-year technology implement plan, its been unable to estimating spending approximately three the district is compared technology budget on with ade- times less its quate technology programs districts. other trapped cycle. As it 139. Wausau is in vicious program up general quality make its reduces special special needs, without mandated students quality private seek the needs leave for schools to resulting public longer provide. schools no With the drop enrollment, dollars decrease and the state program quality. must schools further reduce *59 perhaps ¶ 140. Milwaukee must address an even larger struggle. large high It is faced with a number of Approximately percent needs students. of stu- its qualify dents for free or reduced lunch. 12,000 Over reported Poverty their are students as homeless. undisputedly learning problems. leads to distinct As inevitably Wausau, with needs these students impact regular programs. on educational disparities.
¶ 141. record, Financial which is undisputed, following shows inter alia the financial disparities: vary widely
1. School districts in the amount spent per pupil, ranging $13,534 from to $5301. levy vary widely, ranging
2. The rates from $4.71 per to $20.63 thousand. ability every
3. The to raise for dollars mill levied widely. example, varies For in 1996-67 Gibraltar was every $1,270,000 able to raise for levied; mill Bowler every $55,000 was to raise for able mill levied. disparities many. ¶ 142. The effects of these are To name but two: Property poor districts that tax at the same
.1. property significantly rate rich as districts have fewer spend example, dollars to on education. For the two like-size districts of at Neenah Elmbrook tax approximately per rate the same thousand. $11.55 disparity However, tax due to the is base, Elmbrook spend pupil per able Neenah, to more than $1400 which $9,000,000 amounts over more available Elmbrook than to Neenah educational needs. spend In districts, some like-size which significantly taxpayer same, the tax burden on disparate. example, spend For Beloit and Wauwatosa approximately per pupil. Yet tax Beloit must $8500 *60 per taxpayers thousand more than Wauwa-
their $2.17 of the same amount dollars. to raise tosa ¶ found that this evidence The circuit court 143. system's undisputed. that the dis- Plaintiffs assert was parities deny property-poor equal in districts students opportunities. Based this record it is on educational disagree. standard, But without a the circuit hard to powerless. court was testing.
¶ 144. Statewide is the One measure of student achievement Wis- (WSAS) System Student Assessment consin grades Knowledge Concepts four, at and Examinations reported eight, in four ten. Student scores were and general categories: proficient, proficiency advanced, performance. basic, and minimal beyond ¶ means achievement 145. "Advanced" understanding. mastery, depth in competent, including ¶ "Proficient" means mastery knowledge important and skills. of the competent,
¶ somewhat mas- 147. "Basic" means knowledge important tery skill, but of most of the understanding. major at one flaw in evidence of least in 148. "Minimal Performance" means limited major gaps misconceptions in content, or evidence knowledge progress. and skill basic ques-
¶ 149. The scores achieved leave serious by adequacy tions as to the education achieved tens of children across the state. of thousands upon testing, this in the fall of 1996 150. Based Department of Public Instruction esti- the Wisconsin reading, graders, percent 8 the fourth mated2 that eighth graders, percent percent and 14 of the 15 graders were in the "Minimal Performance Cate- tenth 2 samples are on These statewide estimates based devel oped Hill under contract with DPI. CTB/McGraw
662 gory." Assuming approximately 60,000 students grade graders, eighth tested, each 4800 fourth 9000 graders, graders tenth an had education major was in content, achievement that misconceptions limited with gaps knowledge and skills basic to progress. respect language writing
¶ 151. With (that children) percent skills, graders, is, of the fourth children) (11,400 percent eighth of the (8400 children) graders, percent and 14 of the tenth *61 graders had an education achievement that was lim- major misconceptions gaps content, ited in with or in knowledge progress. and skills basic to figures
¶ 152. The are even in worse mathemat- example, ics and science. For in 33 mathematics children) percent (20,000 graders of the tenth had an education achievement content, that was limited in major misconceptions gaps knowledge with in progress. skills basic to
¶ 153. lack This of educational achievement is particularly spe- evident in the scores children with needs, cial of which there tens are of thousands of the reading, although 800,000 over students in K-12. In percent English proficient of the students fourth grade at the were either "Proficient" or "Advanced" only percent English levels, of the Limited Profi- Seventy-nine cient students were at those levels. percent of the students at without disabilities were only percent levels, those while of the disabled stu- dents at were those levels. through disparities
¶ 154. These wide continue grades tested, the mathematics, cut across lan- guage, arts, science, and social studies. shaming great
¶ 155. It is to this state. today majority, By ¶ this court 156. a slim constitutionally system present is decides that acceptable. above However, if the conditions outlined inevitably system get unattended, will remain nothing, legislature does the children will If the worse. guarantee. demanding their constitutional be back system Unquestionably, the cost fix fixing higher: high. it will be much is The cost not extremely high extract social Uneducated citizens will says, on in the future. the mechanic television costs As pay pay can me now or me later." "You (concurring PROSSER, J. 158. DAVID T. dissenting part). part; principal issue in this petitioners: "Does the Wisconsin case stated Uniformity finance violate the Provision §X, 3 Article, majority article of the Wisconsin the Education A of the court holds it does Constitution?" justices, however, Three would rule otherwise. not. Moreover, interpret justices three and Justice Crooks
these encourages §X, 3 in a manner that future art. judiciary plunge legisla- litigation into the and will ture's domain. *62 join concurringopinion ¶ 159. I the of Justice Sykes unwilling apply not becauseI am standards statutory embeddedin the text ofthe constitutionorin law-whatever the regardless field, of the conse- quences-but unwilling imposelegal becauseI am standardsthat didnot existbeforethis decision.
I majority pro- ¶ 160. A of the the court embraces position §X, 3 of the Constitution that art. Wisconsin gives right students "a fundamental to an Wisconsin sound, equal opportunity basic An education. equal opportunity for a sound basic education one is equip that will students for their roles as citizens and economically personally." them enable to succeed Majority op. ¶¶ 51, at 87. Chief Justice Abraham- son's concurrence/dissent at 94. principles
¶ 161. Constitutional must be rooted text. constitutional Four members the court main- they tain that the standard X, embrace is rooted art. They part § 3. X, are mistaken. Article was original constitution. The relevant text now reads: legislature shall provide by law for the estab- schools,
lishment of district nearly which shall be as uniform practicable; as and such shall schools be charge free and without for tuition to all children ages between the of 4 years; and 20 and no sectarian therein; instruction shall be allowed legisla- but the by ture may, law for the purpose religious schools, instruction outside the district authorize regular the release during of students school hours. analysis begin language Our must with the of the con- phrases § 3 stitution. Two in art. X stand out: "district nearly practicable." schools" "as uniform as . emphasizes First, the text the term "dis- danger trict schools" not "school districts." There assuming synonymous. They that these terms are are authorizing §X, not. A 1972 amendment to art. religious repeated release of students for instruction the term "district schools." The 1972 amendment original substituting "4" section, altered text "twenty," change for "four" and "20" for it did not but the term "district schools."
¶ 163. Section 3 uses the term "district schools" phrase "such schools" and the followed clause *63 therein," shall "no instruction be allowed sectarian although religious the instruction "outside district added). permitted (emphasis is schools" By employ §§ 2 ¶ contrast, X, art. and 5 both 164. part sections also were "school district." These term "sup- original §X, to Article 2 refers of the constitution. port schools, in of common each and maintenance appro- provides §X, 5 that no district." Article school "any priation made from the school fund to shall be year in which a school shall not be district for school The is maintained precise least three months." constitution at avoiding payments state from to individual schools. fund reading suggests of these sections 165. A fair political entities, are whereas that "school districts" literally legislature are schools. The "district schools" political aid to the entities —to the distributes state Consequently, it is to school districts. troublesome base that school districts must be made cause of action § constitution, X, 3, that on a section of the art. uniform apply does not to them. unsettling give
¶ 166. It is even more to Wiscon- right equal an sin "a fundamental to students ground opportunity a sound education" and to basic right that makes no reference indi- in a section rights, only schools." The vidual "district responsibility interpreta- of this court constitutional law, tion is to state the not make the law. phrase Second, X, "as art. contains the uniformity
nearly practicable." The in the uniform as adjacent indisputably phrases diluted "as text is practicable." nearly nearly" uniform as and "as "As nearly practicable" "equal." not mean "As uniform does practicable" strong uncompromising not as as as phrase "equal protection of the law." storied *64 suggest goal; they impose in the words text a do not a rule. may compared §X, 168. IV, Article 3 be to art.
§ 23 of the Constitution, Wisconsin addresses which government provides part: legisla town "The ture shall one establish but of town government, nearly prac which shall be as as uniform added). (emphasis closely ticable" parallels Because this section experi § 3,X,
art.
this court should look to the
government
guidance
ence with town
interpretation.1 This court has
"uni
declared that the
formity requirement
[in
23]§
IV,
art.
been
has
consistently interpreted
require
not to
uni
absolute
only practical
formity
system government,
in the
of
but
uniformity.
.[T]he
recog
. .
of
framers
the constitution
provided
nized that some latitude had to be
to enable
legislature
departures
the
uniformity."
to authorize
from absolute
Lisbon,
State ex rel.
v. Town
75
Wolf
(1977).
Wis.
152, 162, 248
2d
N.W.2d 450
1
litigation
Jack Stark summarizes
under
this section in
Constitution,
The
State
A
book,
Wisconsin
Guide
his
Reference
(1997):
at 100
According
principal organizational
to this section "the
features
same," but,
government
specifies,
town
must be the
as the section
only "practical" uniformity
general
required,
so
enactments that
among
make reasonable distinctions
towns are constitutional
Lisbon,
152, 161-62,
[State ex rel.
Town
75 Wis. 2d
248
Wolf v.
(1977)].
distinctions,
"pro
As to
this
N.W.2d
reasonable
section
powers
of different
vides for
exercise
the boards of different
towns,
anything
when there is
in a town which calls for the exercise
[Land,
powers"
Log
different or
such
additional
& Lumber Co.
(1889)].
others,
294,
and others v. Brown
Wis.
I—I legislature years, both the 169. Over interpreted Arti have the Education Wisconsin courts including They required §X, not cle, art. have legislature uniformity among has school districts. equal required or uniform never that school districts be geographic population enrollment or in terms of created different area. School districts have been County, ways, Scott Lumber v. Oneida 72 Wis. T.B. Co. (1888); Maxcy 260, Oshkosh, v. 144 Wis. 158, 161 *65 (1910), they have not been uniform 128 899 N.W. reorganization. organization Joint Sch. Dist. in their Appeal 794, Board, 790, 56 2d 203 N.W.2d v. State Wis. (1973). districts, 1 authorizes common school state high districts, union and unified school districts. school may §§ 120.001-120.44. These districts Wis. Stat. grades. kin Not all school districts have serve different dergarten four-year-olds. Joint Dist. No. for v. Zweifel (1977). 1., Belleville, 648, 2d 251 822 76 Wis. N.W.2d Compensation among districts is not uni the school employee form, are not uniform. In Busé v. benefits 550, 568, 570, 247 141 Smith, 74 Wis. 2d N.W.2d (1976), recognized the fact that not this court obvious equal raising power all have revenue school districts equalization require §X, 3 and held that art. did not raising power. revenue
¶ § 3, X, 170. the text of art. immense Given diversity districts and district schools and school prior precedent §X, decisions art. 3 does about what that mean, not the court should have dismissed claims obligation equal- legislature has a constitutional to ize educational opportunity among districts terms of dollars.2 What court has done instead is to conflicting
embrace two theories of what the section requires: Equality resources for school districts and special needs, attention to special beyond In equality. short, EQUALITY PLUS. This may be desirable social and educational policy but it does not arise from the text of our constitution. It is distinctly legislative character. 172. Until today, this court has had difficulty
imposing uniformity on much of anything based upon X, the language of art. 3. The court attempted explain this section State ex rel. Auer, Zilisch v. (1928). 284, 289-90, Wis. In N.W. response arguments district, about detachment from a school the court said:
An examination of the debates in the conventions that framed our present constitution and the consti- (which provision) tution of 1846 contained a similar conventions, discloses that the members of those brief, Thompson argues equal In his Governor support public ized share of state education has increased *66 percent percent from 72.3 of state aid in 77.6 1986-87 to Non-Party by Tommy Thompson Brief 1998-99. Governor G. at three-part general 4. first tier the of school aid formula is up for costs shared between the state and school district to a $1,000 primary ceiling per cost of student. The share at state's using guaranteed property this level is calculated valuation of Book, per p. $2 million student. 1997-98 Wisconsin Blue argue disequalizing spend Plaintiffs that the first tier creates ing by disparities its hold harmless feature. The Governor disequalization responds percent that this has fallen from 0.7 equalization payments percent total in 1996-97 to 0.52 1999-2000. Id. at 5.
669 framing relating the article they when were concerned, schools, not with the method of were districts, the character of but with forming in those schools given instruction that should be formed, training were the after the districts —with give should to the future citizens that these schools of Wisconsin. provision in
Viewing the terms ofthis constitutional pur- its terms as well as of the light express the it, drafted actuated those who we pose which uniformity as to requirement conclude that the formed, they after are applies to the districts —to than given, the character of the instruction —rather they means are established and by to the which fixed.3 their boundaries authority 173. The court cited no for these fact, language by In was
passages. inspired (Zilisch) who did not to consti- respondent point brief Rather, counsel relied on a Wisconsin tutional debates. Kalaher, case, State ex rel. Dick v. 145 Wis. (1911), defines a school: "School is a N.W. 1060 which term, and denotes an institution for instruction generic Asylum American v. Phoenix (citing or education" 6343). Bank, Conn. 172 (1822); Phrases, 7 Words & argued: Then counsel
It is this institution and not the district to which the applies. constitutional This is shown provision wording of the constitution which limits plain requirement uniformity "schools" merely the word "district" to denote the prefixes type of schools. conclusion, reaching In State ex this court overruled (1926). 285, 209 Haney,
rel. Brown v. 190Wis. N.W. 591 *67 This and natural construction has been plain fol- courts, by lowed the under similar constitutional provisions. uniformity The decisions hold that such institution, only relates to the character the called of the school. Respondent's Today, Brief at 64. constitutional new right argument is founded on the of counsel in a school three-quarters century detachment case almost ago. of a
I—IH—I hH years early hiring In statehood, 174. the of the licensing entirely of teachers was a local matter. (1999-2000). p. Book, Wisconsin Blue For a num- years, support public of of consisted ber state education money principally public from the of derived sale government granted federal had the lands Chapter legislature 287, 1885, Id. In state. Laws property by a one-mill state tax to be collected levied support. state and to counties for school distributed attempt equalize support tax for Id. The state's first property-poor schools in districts was the Wisconsin 536).4 Elementary (Chapter Equalization of 1927 Law Id. legislature appropriated In 1995, 175. provide percent
more than billion to 66.7 $4 begin- public for K-12 schools Wisconsin revenue year. money ning included the 1996-97 school through general formula, aid, a three-tier delivered Book, According Chapter to the 1999-2000 Wisconsin Blue 1927, promoted Superintendent State Laws of was Callahan, urged percent a 40 level Instruction John who Public figure costs. This was not support of state for local school high support reached until after 1970. There was no state Book, p. until Wisconsin Blue schools 1875.1999-2000 *68 levy categorical aid, and school credits. increase year than over the 1995-96 school was more funding per- $950,000,000. School was increased 5.9 year percent school and 5 for the cent for the 1997-98 year. Legislative Bureau, 1998-99 school Fiscal Budget, Comparative 1997-98 State Sum- Wisconsin mary Budget Provisions, Instruction, Public at plans 862-63. These are the school finance challenge.5 under many ¶ 176. This court on occasions has legislative presumptively that all acts are observed If exist about a statute's consti- constitutional. doubts tutionality, must the judge we resolve them favor of constitutionality of a statute. "Our task is not to legisla- the merits of the statute or the wisdom of the ture. Our task is to determine whether the statute clearly provision." contravenes some constitutional (Abrahamson, Day, Busé, J., J., 2d at 583 Wis. dissenting). Heffernan, J.
¶ 177. not hide from We do the deficiencies that system public exist in this state's education. We are not insensitive to the fact that fiscal resources are not equal. might salutary proposals We even have improvements. supreme But it is not the role of the shape policy provide court education revenues. printouts The court obtained of school referenda in the Department According 1990s from the of Public Instruction. calculations, our there were 166 successful referenda to exceed caps years revenue in the four 1996-1999. These referenda $85,000,000. approximately approxi totaled There also were mately long during referenda on term successful debt these years. same four The value of these referenda exceeded $2.5 part Local are billion. school referenda of the state school system. A plaintiffs finance number of the school district in this participated case in successful referenda. responsibility
This vital is reserved to the executive legislative judiciary's and the branches. The task is to determine whether the acts or omissions of other clearly provi- branches contravene some constitutional my they view, sion. In do not. join majority opinion affirming
¶ 178. I appeals holding present court of respects, finance constitutional. In other I dissent. I Í79. am authorized to state that Justice joins concurring/dissenting
DIANE S. SYKES this opinion. *69 (concurring part; S. SYKES, DIANE J. in
dissenting part). agree majority's I in with the conclu- sion that the state school finance is not Const, § unconstitutional under X, 3, Wis. art. the uni- Const, formity clause article, of the education or Wis. Equal §I, 1, art. Protection I Therefore, Clause. join opinion, sections I III of the as well as the agree However, decision to I affirm. cannot with sec- majority opinion, II tions and V of the which announce expansive right an new state constitutional under art. equal opportunity §X, 3 to "an for a sound educa- basic equip tion," defined as an education "that will students for their roles as citizens and enable them to succeed economically personally." Majority op. ¶¶ 3, 51, at 52, 87. petitioners allege
¶ 181. The the current uniformity school finance formula violates the clause of Equal the education article as well as the Protection by creating Clause of the Wisconsin Constitution failing alleged disparities to redress educational so- "property-poor" many called districts, districts with high-needs children, and districts where charter program schools and school choice decrease the public in the Four enrollment schools. members of this court are convinced that in order to decide the uniform- ity challenge, required clause the court is to articulate right a constitutional standard or test for the to educa- they §X, so, tion under art. 3. And have done reference to an elaborate definition of "educational ade- quacy" support that has no the text of the any prior itself of our X, constitution nor art. cases. Any
¶ 182.
of education or
definition
standard for
inherently
adequacy
political
pol-
educational
icy question,
justiciable
people
not a
one. The
of this
through
representatives
leg-
their elected
in the
state —
governor's
islature,
office and local school
boards —decide
their
what
schools will teach and how
adequate
much education is
or desirable for their chil-
"adequate"
dren. What constitutes an
or "sound" or
emphatically
ques-
even "basic" education is most
not a
any
tion of constitutional law for this or
other court.
majority opinion
¶ 183. As the
discusses at
length,
pertaining
our cases
to the education article
have held that the framers of the Wisconsin Constitu
tion
nature,
were concerned with the
character and
*70
purposes of education —not the technicalities of school
composition
size,
district
boundaries
viewed
—and
necessary
preservation
liberty
as
education
to the
perpetuation
productive,
and the
of a
honorable citi
zenry. Majority op.
¶¶ 31-47;
Grover,
at
Kukor v.
148
(1989);
469, 485-90,
Wis. 2d
674 ¶ 184. But I do not read these cases to mean that judiciary, §X, art. 3 commits to the in the exercise of its obligation interpretation, questions of constitutional adequacy, scope. educational content or There is cer- tainly nothing support § in the text X, of art. 3 to such a Const, provides: § conclusion. Wisconsin X, art. The legislature shall provide by law for the estab- schools, lishment of district which shall be as nearly practicable; uniform as and such schools shall be free and without charge for tuition to all children ages between the of 4 and years. . ..
¶ 185. The other sections of the education article pertain superintendent to the election of the state (art. (art. public 1),§ instruction X, X, school fund (art. 5), 4), §§ sity system 2, local X, school taxes the state univer- (art. 6) §X, and the sale of school and (art. university 7,8). nothing §§X, lands There is in the specifically generally education article that or even scope addresses the content, character or of the educa- legislature provide tion must in the state's district schools.1 majority opinion power 186. As the notes, the government,
to establish schools is inherent
in state
and so the education article of the Wisconsin Constitu
always
interpreted
tion has
been
as a directive
compelling
legislature
power
its
exercise
for the
public
establishment of a
rather than as
organic grant
legislative authority
an
over educa
Majority op.
tion.
1,
at 29.
v. Joint Dist. No. 76
Zweifel
(1977);
648, 658,
Wis. 2d
flows from the that the provision the establishment of district schools. Since power to schools existed without a specific establish grant government, as an inherent function of state X, 3, purpose compel the clear of art. sec. was to power designated. exercise of the to the extent Art. X, 3, upon sec. must then be viewed as a limitation power the broad of the state to educate its citizens through the establishment and operation of schools. The limitations are precisely stated: District schools, uniformity, and free tuition for certain ages. (citation omitted). 2d at
Zweifel, 76 Wis.
See also
("the
[of
purpose
3]§
Manitowoc,
X,
legislature complained and some amici about the lack right of a constitutional definition or standard for the *72 §X, 3.2 The court has under art. to education by adopting complaints responded a broad new to these right that is as to education breathtak- definition of anything ing scope in text disconnected to in as it is of the constitution. right
¶ definition of the to 189. The court's new grounded in ideas about constitutional education is adequacy in the and the found law reviews educational supreme courts, measured decisions of other state sufficiency equal instruction and the reference to the specific proficient opportunity in curricular to become Majority approach subjects. op. ¶¶ at 48-52. The new objective equalizing emphasizes student out- opinion although majority notes that comes, unequal proficiency tests would not student scores on enough a constitutional violation. alone to make out be Majority op. ¶¶ 51-53, n.21. The court's new stan- at prescribing part in statutes curricular dard is linked to Majority op. requirements public at for the schools. ¶ 51. right newly-minted is constitutional a fundamental
as follows: "Wisconsin students have right equal opportunity for a sound basic educa- an opportunity equal education An for a sound basic tion. equip roles as citizens for their is one that will students economically person- and enable them to succeed and ally." Majority op. right to education at 3. The new proficient opportunity for students be includes "the reading writing, geogra- science, mathematics, in phy, history, instruction and for them to receive "right nowhere mentions the The Wisconsin Constitution Rights, in the Declaration to education." It is not contained judicial It I, anywhere education article. art. nor in the X, art. 3. Busé v. uniformity clause of extrapolation from the (1976). 550, 567, Smith, 74 Wis. 2d N.W.2d training, music, the arts and sciences, vocational social physical foreign language, health, education and age aptitude." accordance with their Id. There is equal opportunity more: "An for a sound basic educa- acknowledges tion fungible that students and districts are not dispro-
and takes into account districts with portionate economically students, numbers of disabled disadvantaged students, and students with limited English language legislature skills." Id. And the must provide henceforward "sufficient resources" to meet the standard; otherwise, X, new it will be violation of art. § 3. Id. problem
¶ 191. The with all of this is that there is support anywhere no for it in the text of the Wisconsin *73 entirely product judicial It is Constitution. of inven- despite parts tion, particular statutory efforts to tie some of the standard to may
enactments. This be fine edu- policy, parent certainly cation support and as a and a citizen I aspirations goals
the educational expressed by require- standard, new as well as the specified ment that schools include instruction in the subject judge, compelled curricular areas. But as a I am say forcefully as Ias can that the court's exercise in standard-writing nothing education clause has what- soever to do with constitutional law. my judgment, any attempt by
¶ In this court to create a constitutional standard or definition of the right upon to education based ideas about educational adequacy, offerings outcomes and curricular is seri- ously misguided. upon prerogatives It encroaches legislative government, implicating of the branch of separation powers principles bringing play of into political question doctrine of Carr, Baker v. (1962). judiciary U.S. 186 The should not be drawn into deciding essentially political issues that are in nature, exclusively by the constitution to another committed susceptible judicial government and not branch clearly management such an or resolution. This is issue. Supreme
¶ 193. In Baker the United States analyzing Court established the basic framework for justiciability political questions: question pri- of a nonjusticiability political Much marily separation powers. a function of the capacity 'political results from the of the confusion case-by-case to obscure the need for question' label any has in mea- inquiry. Deciding whether a matter by the Constitution to another sure been committed action of that government, branch of or whether the authority exceeds whatever has been com- branch mitted, is itself a delicate exercise in constitutional responsibility and is a of this Court interpretation, ultimate of the Constitution. interpreter as any case held to involve Prominent on the surface of textually is found a demonstra- political question of the issue to a ble constitutional commitment judi- a lack of department; coordinate political for manageable standards cially discoverable it; deciding without resolving impossibility or the clearly of a kind policy an initial determination *74 discretion; impossibility or the of a nonjudicial resolution without undertaking independent court's respect lack of the due coordinate expressing need or an unusual government; branches of decision political adherence to unquestioning made; potentiality or the of embarrassment already by various pronouncements from multifarious one departments question. on
679 210-11, States, Id. at 217. See also Nixon v. United 506 (1993); 224, U.S. 228-29 McCormack, Powell v. 395 (1969). ultimately 486, U.S. 518-19 The Court ixiBaker reapportionment justicia- found the issue before it to be by ble, a conclusion followed this court State ex rel. Reynolds Zimmerman, v. 22 544, 561-64, Wis. 2d 126 (1964), overruling Broughton N.W.2d 551 State ex rel. (1952), Zimmerman, 398, v. 261 52 Wis. N.W.2d 903 Zimmerman, and State ex rel. Martin v. 101, 249 Wis. (1946). 23 610 N.W.2d duty particular is, course, 194. It
province judiciary interpret of the the constitution (1 say Marbury Madison, and Cranch) what the law is. v. 5 U.S. (1803); 137 State ex rel. Wisconsin Senate v. Thompson, 429, 436, Wis. 2d N.W.2d 385 (1988).3 fully political I am that the aware doctrine of question nonjusticiability rarely invoked and in fact directly applied by ques has not been this court on a tion of state constitutional law since Baker. I convinced, am however, of the doctrine's
applicability
§ X,
art.
at least to the extent that
creating
this court has now ventured into
a constitu-
adequacy." My
tional standard or test for "educational
upon
conclusion is based
X, 3,
text of art.
judicially
manageable
obvious lack of
discoverable or
adequacy,
impossi-
standards for educational
and the
bility
deciding
undertaking
the issue without
an
clearly nonjudicial policy
initial,
determination.
(Alexander Hamilton)
Federalist,
See also The
No. 78
("The interpretation of
proper
peculiar prov
the laws is the
is,
fact,
ince of the courts. A constitution
and must be
regarded judges,
as a fundamental
law. It therefore
belongs to them
meaning,
to ascertain its
as well as the mean
ing
any particular
proceeding
legislative body").
act
from the
*75
analysis,
concept
"the
196. Under the Baker
of
political depart-
a textual commitment to a coordinate
completely separate
concept
ment is not
from the
of a
judicially
manageable
lack of
discoverable and
stan-
judicially
resolving
manageable
it;
dards for
the lack of
may strengthen the conclusion that there
standards
is
textually
a
demonstrable commitment to a coordinate
already
As I
Nixon,
tutional profound soaring as the breadth and rhetoric of the court's new standard demonstrate. More fundamen- tally, just adequate how much education is to the requirements expectations parents students, and society any given point manifestly in time at nonjudicial type. policy involves determinations of a Finally, uncertainty ¶ 198. there is and risk conflicting pronouncements multiple inherent H emanating policy different about education from 4 course, suddenly charging legislature if started tui Of justiciable turning away tion there would be a claim students matters, X, explicit for violation of art. 3. The text is as to these remedy. clearly judicial capable which are resolution government. By constitutionalizing branches (however adequacy" of "educational notion we would *76 it), potential to define create the never- choose ending we for litigation. school finance majority opinion ¶ 199. The refers to the neces- sity adopting adequacy-based an constitutional goad backstop "as a as a to standard education or legislature...." Majority op. legisla- ¶at 50. But no satisfy everyone, particularly policy ture can ever in a fraught competing area so with nuances and interests right as this one. The constitutional to education by today guarantees announced the court not better litigation, schools but bi-annual school finance as dis- satisfied in the combatants battle for state education budget go dollars to court with claims of educational "inadequacy." majority justiciability
¶ 200. The dismisses the by issue reference to the unremarkable fact that this challenges §X, before, court has entertained art. 3 Majority op. Kukor, 2, Busé and Zilisch. at n.2. In gone way other words: "We've a little down this road why poor before, not continue further?" This is consti- justification exploration tutional for the in educational policymaking engages today. court The differ- ence, course, this case and the between earlier ones arrogated is that this itself, court has never before guise interpretation, under the power of constitutional content, to dictate educational character or scope.5 today. Not until Smith, There is unfortunate dicta in Busé v. 74 Wis. 2d
550,
(1976),
suggests
N.W.2d
which
that this court has
authority
subjects
taught
public
dictate
to be
in the
Referring
schools.
to the distinction drawn in State ex rel.
Auer,
(1928),
Zilisch v.
197 Wis.
What constitutes a "high quality" education, and may how it provided, best be cannot be ascertained by any judicially discoverable manageable stan- dards. The constitution provides no principled basis for a judicial high definition of quality. It would be a transparent conceit to suggest that whatever stan- dards of quality courts might develop would *77 actually be derived from the any constitution in meaningful sense. Nor is education a subject within the judiciary's field of expertise, such that role in giving content to the judicial guarantee
education
might
Rather,
be warranted.
the question of educa-
creation, the court in Busé stated: "If 'character of instruction'
required
was all that
nearly
was
to be 'as
practicable'
uniform as
constitution,
under the mandate ofthe
up
then it was left
to this
ultimately
court to
subjects
determine what
towere be included
in 'character of
legislature
instruction' and to the
to determine
what uniformity
'practicable.'" Busé,
was
tional is considerations that call practical and philosophical legislative the exercise of and administrative for discretion. quality of educational question
To hold that the judicial largely to determination would subject general of the of a voice deprive public the members to the hearts of all individ- in a matter which is close type in Illinois. Judicial determination ofthe uals and it can education children should receive how provided depend opinions be would on the best expert litigants might whatever witnesses the call testify they might to and whatever other evidence present. general public, Members of the choose however, obliged respectful would be to listen in certainly silence. We do not mean to trivialize the educators, views of school administrators and public others have studied the which problems who nonexperts students, par- schools confront. But — ents, employers, important and others —also have to contribute which are not experiences views easily through judicial factfinding. reckoned formal contrast, open public In an debate is the robust political process lifeblood of the in our democracy. representative problems Solutions quality emerge spirited educational should from a dialogue of the State and their people between representatives. elected Rights Edgar, Committee Educ. v. 672 N.E.2d for (Ill. 1996). Adequacy See also Coalition *78 Funding, Chiles,
Fairness in Sch. Inc. v. 680 So. 2d (Fla. 1996)(challengers finance present appropriate failed to mining "an standard for deter- [educational] 'adequacy' present that would not judicial powers a substantial risk of intrusion into the responsibilities assigned legislature"). expansive ¶ 202. So it here. constitutional right explicated by to education announced and today any court is not derived from the constitution in meaningful entirely inappropriate sense, and it is representative system disputes our to resolve over edu- adequacy through content, cational X, or finance art. litigation. political question § 3 To invoke the doctrine nonjusticiability responsi- here is not to abdicate the bility judicial review but to vindicate the democratic process by which these sorts of issues are best resolved. legislature This does not leave the to exercise its authority over education issues unchecked. The checks and balances of the ballot box are oftentimes far more effective than those of a coordinate branch of government. Accordingly, parts
¶ 203. I cannot subscribe to II paragraph majority opinion, V, 3 of the in which "right the court articulates a new constitutional to edu- respectfully §X, Therefore, cation" under art. I parts majority opinion, concur in I and III of the but respects, other I dissent.
¶ 204. I am authorized to state that Justice joins opinion. PROSSER, DAVID T. this