*1 Appellants, wife, v. Joint District No. Zweifel, Respondents. another, Belleville, March 3, 1977. No. Submitted 76 - 141. briefs 29, 1977. Decided March 822.) (Also reported 251 N. 2d W. *2 petitioners-appellants For the cause was submitted Bell, Blake Richter & on the Ward brief I. Metzner, S. C. of Madison. respondents on the
For the the cause was submitted Cooper, Bieberstein, brief of Paul C. Gartzke Bruemmer, and Hanson of Gartzke Madison. HANSEN, J. The administration of the
CONNORT. province board, district is purpose opinion for the school district and jointly the school board will be referred to as the respondents. respondents declined admit to kinder-
garten, argument appellants’ the and substance of the by respondents is that action 3, such the is violative of art. provides: Constitution, which Wisconsin schools; tuition; “District instruction; sectarian re- April, [As leased 1972] time. SECTION 3. amended provide by shall for law the establishment nearly schools, of district which shall be uniform as practicable; and such schools shall free and without charge for tuition to all children the between of years; 4 and 20 and no sectarian instruction shall be legislature by may, therein; allowed but the law purpose religious the of instruction the outside district during regular schools, authorize the release of students school . .” hours. . respondents to Pursuant school rule, district the re-
quired seeking kindergarten that children admission as age years students in the district attain the of five or before December 1st of in which admission sought. Kyle February was therefore, 4, born 1972, was and, years would attain the of five until February appellants, sought 1977. The nevertheless, Kyle kindergarten to have admitted to in the fall of 1976. submitting question admission of Prior appellants consulted with board, school Kyle ob- was superintendent of of the district. schools by multidisciplinary team, served, and examined a tested appears There psychologist, physician. a school Kyle exceptional question child no was an to be parents good physical both school health. were His organization teachers instrumental and had been their It was prekindergarten Belleville. of a emotionally socially mentally, opinion that was ready kindergarten. opinion of the It was the first- granted grade ad- that he not be teacher should different Under somewhat mission granted circumstances, previously respondents had Kyle’s early admission to older brother. Kyle’s age, of the district would not receive
Because grade for him either or first state aid appellants to make a if he admitted. The offered equivalent to the district in an amount contribution aid that lost to the state school would have been period years. for a of school district two consider We good only expression intention. accept respondents cannot force contribution; however, we do to be consider this pre- material to the resolution ultimate issues sented. June, appellants’ super-
In 1976, at the request, appeared intendent district before the school presented case for the *4 Kyle. supplied pre- The board was with the of the results kindergarten screening re- tests. board denied the Kyle’s quest early for admission. July, 1976, attorney
In appeared Mrs. Zweifel and her request the before board the renew for ad vote, request again mission. On roll call the was denied. meeting At a third again held August, the board Kyle’s denied entrance into The denial 652 by super upon expressed based five as the
was reasons by Fahey, president intendent and concurred to Francis district, (1) of the school board: under school (a) provisions 121.07(1) (b), Stats., would of sec. Kyle’s attendance;1 (2) not receive state aid for setting precedent other board was concerned with (3) requests; admission the board was concerned Kyle’s with and emotional for kinder social readiness garten; (4) the board with concerned whether or Kyle successfully compete physically other could with students; (5) older the board was aware that special gifted programs district had no students. rejected the offer made to reimburse the district for amount of it aid would not if receive was admitted.
The record reveals some school districts underage kindergarten state admit children to and that others do not. consider the (1)
We issues case to be: Whether uniformity 3, requires clause exceptional school oppor- districts afford an students tunity to kindergarten; whether this section of the requires constitution every provided child in Wisconsin opportunity an public upon attaining age enter school years. of four 121.07(1), Stats., provides computation Sec. for the of state aid available to a pupils school district based the number of Kyle’s age, enrolled. Because under of sec. 121.07(1) (a) (b), respondents -would count able to pupil him enrolled and thus would receive no state aid Kyle’s provide: related to attendance. Those sections “(a) grade pupil A may only be counted if he attains age years of 6 year before December 1 grade. he which enters first “(b) pupil kindergarten A may only enrolled in be counted years he if attains of 5 on or before December he pupil which A enrolls. shall be pupil.” counted as one-half
653 consideration, of in our be Additional facts will stated these issues. appellants districts that if school contend some opportunity admission
the state offer kindergarten uniformity exceptional students, the requires that all districts must so. clause do uniformity a mandate 3, clause sec. is legislature provide to the establish- directed nearly schools, uniform ment of district which be as shall specif- practicable. It toward is not a mandate directed sense ic schools or school districts district legislature they the character and not establish uniformity required. services, different extent of That procedures, opportunities or exist between dis- rules may uniformity; of well evidence of a lack but tricts standing alone not mandate those differences do oppor- procedures, services, of identical establishment or rules in all districts. That determination tunities by by proper case, inor, a this is made logical appellants’ court. The extension of conten- any district within the tion would be op- services, education, could dictate portunities, character throughout simply adopting etc., the state something requiring all or different and thus new to conform. The constitution other districts does mandate such result. contend also grade 115.28(8),
procedures
prescribed for first
require
procedures
Stats.,
that similar
be established for
advancing
argument,
appel
In
upon
par
rely
law,
and in
statutes and case
lants
Pacyna
v.
ticular
the rationale of
Board
Educa
(1973).
tion, 57
“( n ¿/ADMISSIONS to FIRST GRADE. Prescribe procedures, conditions standards under which admis- grade may to sions be made at an earlier than specified exceptional 118.14 that s. cases.” statutory provision early
There no similar for kindergarten. fact, admission to In not school dis- they operate, required tricts nor are operate, to kinder- gartens, Pacyna, supra, pp. 564, 565. 120.13(14), Stats.,
Sec. makes of establishment kindergartens discretionary board, pro- with the school viding : powers. “120.13 School hoard The school board of a high
common or may: union school district a “(14) KINDERGARTEN. In a common school district operating and grades elementary operating elementary high grades, establish maintain a kinder- garten. kindergarten shall constitute a school of the school may district and not be discontinued unless kindergarten the less garten enrollment preceding- than 15. The may school board discontinue kinder- 4-year classes olds.” appears pursuant
It 115.28(8), to sec. Stats., superintendent public instruction promul- has gated relating early standards grade. admission to first preschool Bates, kindergarten Susan consultant for the Department Wisconsin of Public Instruction, testified at tha,t appears It superintendent trial. public instruction position took the application only kindergarten early a admission was standards recommendation; consti- themselves standards recommendations; only that the final authori- tuted grant ty to or refuse respective
rested discretion of school boards. pertaining to kinder- were issued as standards garten kindergarten- ; course to were distributed as of districts; only providing request. and were mailed department approval disapproval neither voiced nor granting requests local boards’ ad- actions proper mission We believe this interpretation application of the law. determining
In the exercise of their discretion in whether to admit at an age, the school board *7 included However, consideration of those standards. reasoning Pacyna Education, v. Board supra, does Kyle granted early not dictate that must be admission kindergarten. Pacyna recognized a that child who was years year six old before proposed December 1st in the he grade grade. enter first must be admitted to first followed, Therefore, it operated that aif school district uniformity required kindergarten, that a who child years five old before December pro- 1st in the he posed kindergarten to enter be must admitted to kinder- garten. “Only by adopting a uniform date for ad- kindergarten kindergarten mission to grade can integrated.” supra, Pacyna Pacyna, 567. is dis- tinguishable since there statutory requirement no is that granted early children be grade admission to either first or appellants here confuse opportunity. results with
They appear argue only Kyle given that opportunity to seek kindergarten, admission into he, but also that fact, in be admitted. grant
The actual or refusal of ais de- cision that rests within the discretion of the school board. given potential
Uniformity requires that the enrollee be apply early admission; that opportunity application, in the exercise board consider board, of its discretion make its final If the in decision. against early discretion, the exercise of ad- its decides mission, way uniformity that no has indicates been violated. us,
On basis of record before we conclude that determining its exercised discretion to admit as an enrollee. agree disagree Whether we with the decision question However, school board not the before us. no under circumstances can it be the board said its abused discretion. provides part
Art. constitution also the district established schools “. . charge shall be free and . without for tuition to all years. children between the of 4 and 20 . . .” The phrase in guaran- read this the constitution as teeing public four-year access for all schools old chil- dren in the state.
Our attention is directed to several authorities from jurisdictions. other unpersuasive findWe them because various constitutional contain different language than our constitution and in several instances statutory issue interpretation. involved *8 opinions The two of attorney general2 the upon relied by affirmatively have negated by been this Pacyna, decision in court’s supra, wherein this court 564, stated at 565: X, 3, “Art. sec. of the Wisconsin Constitution, provides upon a limitation power authority of the
legislature in the establishment of district schools. The requires article district nearly schools be ‘as uniform Op. Atty. 6; 2 10 (1921) Op. Atty. Gen. 10 Gen. 231.
657 charge and without practicable’ ‘free as to be years.’ ages 4 of and 20 tuition to all children between of a kin- require the establishment article does not This dergarten five-year-old . . for four or children. 141 Smith, In Busé 247 N.W.2d 550, v. 74 Wis.2d (1976), p. this court at 568: stated interpretation “In its of constitutional analysis utilized court is committed to method of 179, swpra. Sinclair, Board Education v. Wis.2d [65 of (1974)] 222 143 The court will view: N.W.2d “(1) plain meaning of the context words used; analysis “(2) The of the constitutional de- historical 1848, practices and of in existence bates which to what were reasonably may presume the court also known were ; . of the 1848 constitution. . framers “(3) interpretation The earliest this section legislature ing passed manifested in the as law follow- adoption of the constitution. . .” . analysis deeply One need delve too into method outlined at the above arrive conclusion that the con- adopted Pacyna, supra, struction was correct. language 3, constitution, states was to establish district schools; that nearly to be such schools were as uniform practicable; and that were to such schools be free and charge without for tuition to children between twenty years. specific of four and There is no direc- open tion that the to all schools children between four twenty years, or schools accommodate all children, provided or that education such for all such children. emphasis provision constitutional cited
upon guarantee free tuition and not of education persons falling age groups. within those See: Board Education Sinclair, v. 65 Wis.2d N.W.2d
658 201, Reuter, v. State ex rel. Warren
(1974);
44
Wis.2d
(1969); Manitowoc v. Manitowoc
221,
from the power of district establishment Since the schools. specific grant establish schools existed without a (See: government State ex rel. inherent function of state Dudgeon Levitan, v. 326, 181 193 499 Wis. N.W. ex Giessel, and State rel. Thomson v. 265 61 558, Wis. (1953).) 3, purpose N.W.2d 903 X, clear sec. compel power exercise of to the des- extent supra, 565; ignated. Buse, Manitowoc, supra, 98. Art. X 3, sec. must then be viewed as a limitation the broad power of through the state to educate its citizens operation establishment The limitations schools. precisely schools, are stated: District uniformity, and ages. free tuition for certain clearly There no limitation which compel would legislature provide education every each and year be- tween twenty, four and prohibit which would providing from education for those under age twenty. four and over (See, instance, State ex Reuter, rel. Warren supra, v. 221; West Milwaukee v. Area Vocational, Bd. T. A. Ed., & 356, Wis.2d (1971); N.W.2d 387 and sec. Stats.) 120.13(13), only limitation contained in the provision constitutional relied on persons falling is that for designated within the age groups, if pro- education is vided, provided it must be charge. free of Board of Sinclair, Education v. supra.
In Manitowoc, supra, 98, speaking of art. this court stated: *10 grant the purpose power . . The not to to legislature power exist schools, to establish would grant, compel power without the to but to exercise of designated. implied prohibition extent An cannot be out of construed materials.” such implied legisla- prohibition prevent No which would determining provided ture from when the state education process begin and will can be out of art. end construed legislature X, determine, The sec. 3. is to it thus free entry done, grade permitted has into at will be age six that the individual school districts have option provide to for education in the form of kinder- garten age legislature before The six. determine could provided that education will be statewide for all children aged above, legislature four and but the not constitu- tionally bound do so. The (1847- Journal the Constitutional Convention 262, 336-339,
48), that the indicates of the con- framers titution, drafting pertinent provision X, in 3, were concerned with the distribution of the state school fund to achieve free specifically education and not including excluding with or certain from school. See also: Jorgenson, Founding Public Education (1956), Wisconsin 88-93. We further no observe that age specific imposed by limit was interpreta- earliest tion of this section the constitution as manifest 19 of the Ch. Revised Statutes of during years following the first ten adoption constitution.
We conclude that art. sec. 3 of the Wisconsin Consti- require tution not does all school districts the state to exceptional four-year afford right old children the early entry into kindergarten; respondents did denying abuse their discretion appel- child of the admission; lants and that the constitution does not re- quire every child in Wisconsin be able pub- to enter upon attaining lic school years. of four By Judgment affirmed. the Court. — ABRAHAMSON, majority (dissenting). con- J. uniformity requires: cludes that (1) given opportunity apply a child That early admission; application; that the board consider the (3) that the board in the exercise of its discre- tion make a final decision on the of a child. majority further concludes that “the school board determining
exercised its discretion in admit *11 early kindergarten as an enrollee” that “under no it circumstances can be said that the board abused its discretion.”
Unfortunately the majority opinion does not forth set the criteria or standards which the school board should apply making or did I, therefore, its decision. find it difficult majority understand how the could then re- view the board’s decision no and find abuse of discretion. superintendent
The school set forth his list five rea- sons which he believed the school board rested its (see decision text majority opinion 1). at footnote Three reasons their face could support not the board’s given decision. One reason was that the board did not precedent want to set a early for other admission re- quests. reason This indicates that board believed it could simple, have a flat prohibiting rule admis- majority opinion sions. otherwise; holds the court says the board must exercise its discretion on an in- dividual basis. Second, rejected the board ad- mission because the district special had programs no for gifted factor students. This is irrelevant in a decision on kindergarten. admission to The issue was whether four-year this old sufficiently was mature to fit into the regular five-year kindergarten. old The issue was not special program whether a required was for the child. Third, the lack of is said have considered the significant. Sufficiency aids. State not aid is nothing showing funds is. There is record the school board considered it whether had sufficient funds or facilities child in this at this this time. put other superintendent two forth reasons
related
the board’s concern for the
social,
child’s
emo-
physical ability
tional
kindergarten.
to attend
Al-
though
clearly
these considerations are
relevant and could
support
decision,
board’s
the record does not show
whether the board rested its decision on the individual
ability
child’s
or on one or more of the other reasons
given or whether its decision would have been the same
had one or
given
more of the reasons
been eliminated.
Snajder
State,
303, 316,
v.
74 Wis.2d
As I write fully this dissent I am aware that nearly over and the result of this case is therefore substantially meaningless to person Kyle, most Nevertheless, concerned. for the limited time avail- Kyle able and for Kyles, future I would remand this (1) case to the board to set forth the standards cri- determining teria for admission of children at an kindergarten; to exercise its discretion as to the admission of in accordance with the established criteria; (3) forth bases set standards Kyle. decision as its that Mr. Justice Heffernan am authorized
I joins in dissent. Re Milwaukee, Bank of
First Wisconsin National Appellant. spondent, Bank, v. Midland National Argued February 28, March 1977. Decided 1977. No. 75-401. (Also reported 829.) N. W. 2d