DAVIS v. GROVER No. 90-1807.
166 Wis.2d 501 (1992)
480 N.W.2d 460
Lonzetta DAVIS, in her own behalf and as natural guardian of her daughter, Sabrina Davis; Velma Y. Frier, in her own behalf and as natural guardian of her daughter, Shavonne Frier; Janet Grice, in her own behalf and as natural guardian of her son, Melvin Grice; Doris Pinkney, in her own behalf and as natural guardian of her daughter, Antionette Roberson; and Thais M. Jackson, in her own behalf and as natural guardian of her daughter, Tamika Carr; Bruce-Guadalupe Community School; Harambee Community School; Juanita Virgil Academy; Urban Day School and Woodlands School, Plaintiffs-Respondents-Petitioners, v. Herbert J. GROVER, Superintendent of Public Instruction of the State of Wisconsin, Defendant-Cross-Claimant-Defendant-Respondent-Petitioner, Felmers O. CHANEY, Richard Collins, Mary Ann Braithwaite, Lauri Wynn, Linda Oakes, George Williams, Melanie Moore, Donald A. Feilbach, Wisconsin Association of School District Administrators, Inc. Wisconsin Education Association Council, National Association for the Advancement of Colored People, Milwaukee Branch, Association of Wisconsin School Administrators, Milwaukee Teachers Education Association, Wisconsin Congress of Parents & Teachers, Inc., Milwaukee Administrators and Supervisors Council, Inc. and Wisconsin Federation of Teachers, Intervenors-Petitioners-Appellants-Cross Petitioners, v. Charles P. SMITH, State Treasurer and Board of School Directors of the City of Milwaukee, Cross-Claimant-Defendant-Respondent.
Supreme Court of Wisconsin
Decided March 3, 1992.
For the plaintiffs-respondents-petitioners there were briefs by Clint Bolick, Allyson Tucker, Jerald L. Hill, Mark Bredemeier and Landmark Legal Foundation Center for Civil Rights, Washington, D.C. and oral argument by Mr. Bolick.
For the defendant-cross-claimant-defendant-respondent-petitioner the cause was argued by
Warren D. Weinstein, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
For the intervenors-petitioners-appellants-crosspetitioners there were briefs by
Robert H. Friebert, Charles D. Clausen, David S. Branch, Caren B. Goldberg, Peter K. Rofes and Friebert, Finerty & St. John, S.C., Milwaukee and Bruce Meredith and Wisconsin Education Association Council, of counsel, Madison and oral argument by Robert H. Friebert, Mr. Clausen, Mr. Rofes and Mr. Meredith.
Amicus curiae brief was filed by
Michael J. Julka, Jill Weber Dean and Lathrop & Clark, Madison for the Wisconsin Association of School Boards, Inc.
Amicus curiae brief was filed by William H. Lynch, Madison and Gretchen Miller, Milwaukee for The American Civil Liberties Union of Wisconsin Foundation, Inc.
Amicus curiae brief was filed by
Julie K Underwood, Madison for Herbert J. Grover and oral argument by Ms. Underwood.
Amicus curiae brief was filed by
Steven P. Schneider, Milwaukee and William P. Dixon and Davis, Miner, Barnhill & Galland, of counsel, Madison and oral argument by Senator Gary R. George.
Amicus curiae brief was filed by
Eva M. Soeka, Milwaukee and Robert A. Destro and Columbus School of Law, Washington, D.C. and oral argument by James Klauser.
Interested party brief was filed by
Patrick B. McDonnell, special deputy city attorney and Grant F. Langley, city attorney, Milwaukee.
CALLOW, WILLIAM G., J.
This is a review under sec. (Rule) 809.62, Stats., of a decision of the court of appeals, Davis v. Grover,
Three issues are raised in this review. The first issue concerns whether the MPCP is a private or local bill which was enacted in violation of the procedural requirements mandated by art. IV, sec. 18 of the Wisconsin Constitution. We hold that the MPCP is not a private or local bill and, thus, is not subject to the procedural requirements of Wis. Const. art. IV, sec. 18.
The program was and remains politically controversial. As such, it was greatly debated in legislative committee public hearings and by the entire legislature. It is evident the program was not smuggled through the legislature. The purpose of this experimental legislation is to determine if it is possible to improve, through parental choice, the quality of education in Wisconsin for children of low-income families.
The second issue concerns whether the MPCP violates art. X, sec. 3 of the Wisconsin Constitution, which requires the establishment of uniform school districts. We hold that the MPCP does not violate art. X, sec. 3 of the Wisconsin Constitution because the participating private schools do not constitute "district schools," even though they receive some public monies to educate students participating in the program.
The third issue concerns whether the MPCP violates the public purpose doctrine which requires that public funds be spent only for public purposes. We hold that the MPCP does not violate the public purpose doctrine. We give great weight to legislative determinations of public policy. Sufficient safeguards are included in the program to ensure that participating private schools are under adequate governmental supervision reasonably necessary under the circumstances to attain the public purpose of improving educational quality. Further, the cost of education and the funds available for education are dependent upon the taxpayers' ability to fund an intensive public educational program. The amount of money allocated under this program to participating private schools for the education of a participating student is less than 40 percent of the full cost of educating that same student in the Milwaukee Public School (MPS) system. The total amount of public funds appropriated to fund this experimental program is inconsequential when compared to the total expenditures for public education
The relevant facts follow. The MPCP, as enacted into law, provides that a kindergarten through twelfth grade (K-12) student who resides in a city of the first class may attend, at no charge to the student, any nonsectarian private school located in the city if the following criteria are met:
Section 119.23(2)(a), Stats. Additionally, private schools participating in the program must meet defined performance criteria
The legislature placed significant limitations on the scope of the program. The program limits the number of students that may participate in the program to no more than 1 percent of the school district's membership. Section 119.23(2) (b)1, Stats. This limitation makes the program available to approximately 1,000 Milwaukee students. The record reflects that participating students are selected on a random basis with preference afforded to students continuing in the program and their siblings. This narrowly defined and carefully monitored program provides that no private school may enroll more than 49 percent of its total enrollment under this program. Section 119.23(2) (b)2.
Since the goal of the MPCP legislation is to gather information to assist in identifying educational problems and solutions, a number of reporting and supervisory functions on the part of the State Superintendent as well as the Legislative Audit Bureau are statutorily required by the program. The State Superintendent must submit a report to each house of the legislature concerning achievement, attendance, discipline, and parental
The State Superintendent is required to monitor the performance of students participating in the program and is given specific authority to prohibit participation in the program the following school year by any private school which does not meet the performance criteria. Section 119.23(7)(b), Stats.
The State Superintendent is also authorized to conduct one or more financial or performance evaluation audits of the program. Section 119.23(9)(a), Stats. The Legislative Audit Bureau is further required to perform a financial and performance evaluation audit on the program. Section 119.23 (9) (b). Clearly, the legislature included very particular and detailed reporting and supervisory requirements to test a new and innovative method of delivering education services to students of low-income families.
Governor Tommy Thompson first proposed a parental choice program in early 1988. The proposal was analyzed by the Legislative Fiscal Bureau, but was never considered by the legislature. In 1989, the governor again proposed a parental choice program, at which time the Legislature requested the Legislative Council to study the proposal.
In October 1989, the bill that led to the enactment of the Milwaukee Parental Choice Program was introduced by a bipartisan coalition of 47 members of the assembly and nine senate co-sponsors. The bill was referred to the Assembly Committee on Urban Education, which held a public hearing on the proposal. A broad array of persons and organizations, encompassing many of the interests represented in this case, appeared at the public hearing. Based on committee reports and the statements made at the public hearing, the committee
The program, as passed by the assembly, was then considered by the senate and referred to the Committee on Educational Financing, Higher Education and Tourism. Subsequently, it was added to the senate budget adjustment bill, a multi-subject bill addressing numerous unrelated topics. The language of this component of the bill was preceded by the title, "Milwaukee Parental Choice Program." Following the addition of a fiscal amendment relating to the program, the entire budget bill was adopted by the senate. The assembly passed the budget bill without again considering the parental choice program.
The governor signed the bill, but vetoed a sunset provision included in the program which would have limited the effective period of the program to a five-year time span. Thereafter, the MPCP was enacted into law under ch. 119, Stats., the chapter applicable to the school system in cities of the first class.
Lonzetta Davis, et al. (Davis), representing families of participating students and private schools participating in the program, initiated this action challenging a number of regulatory actions taken by State Superintendent of Public Instruction Herbert Grover (Superintendent Grover).
Felmers O. Chaney, et al. (Chaney), representing various school administration organizations and the
The State of Wisconsin, acting on its own behalf, argues that the MPCP is constitutional in all respects.
The circuit court found the MPCP constitutional and that Superintendent Grover's actions exceeded his regulatory authority. Chaney filed an appeal on the constitutional issues with the court of appeals. Superintendent Grover did not appeal the circuit court's decision on the regulatory issues.
The court of appeals reversed the decision of the circuit court and held that the MPCP violated the private/local legislation clause of Wis. Const. art. IV, sec. 18. It did not reach the uniformity clause and public purpose doctrine issues.
No injunction was ever issued against the Milwaukee Parental Choice Program, which continues to operate unaffected by the pending litigation.
The issues presented in this case involve questions of law. On review, this court decides questions of law independently without deference to the decisions of the trial court and court of appeals. Ball v. District No. 4, Area Bd.,
I. THE PRIVATE/LOCAL LEGISLATION CLAUSE
Article IV, sec. 18 of the Wisconsin Constitution states:
It was adopted as part of the original Wisconsin Constitution of 1848 and has remained unchanged. In previous cases, we have explained that art. IV, sec. 18 has three underlying purposes:
Milwaukee Brewers v. Department of Health & Social Services,
The determination of whether a bill violates Wis. Const. art. IV, sec. 18 involves a two-fold analysis. We must first address whether the process in which the bill was enacted deserves a presumption of constitutionality. Second, we must address whether the bill is private or local. If the bill is found to be private or local, then the requirements of art. IV, sec. 18 apply; namely, that the legislation must be a single subject bill and the title of the bill must clearly reflect the subject.
The general rule in Wisconsin is that a statute is presumed to be constitutional and "the burden of establishing the unconstitutionality of a statute is on the person attacking it, who must overcome the strong presumption in favor of its validity." ABC Auto Sales v. Marcus, 255 Wis. 325, 330, 38 N.W.2d 708 (1949). This presumption of constitutionality was recognized in the art. IV, sec. 18 context in Soo Line R. Co. v. Transportation Dep't,
Brookfield, 144 Wis. 2d at 918-19 n.6. In Brookfield, there was no indication that the legislature had adequately considered or discussed the legislation in question that was passed as part of the budget bill. The record in the present case is replete with evidence that the MPCP was introduced by a significant number of
We are aware that time constraints sometimes force legislators to pass a variety of worthy legislation in one multi-subject package. However, multi-subject bills reduce accountability to the public and are very susceptible to the charge of violating the procedural requirements of Wis. Const. art. IV, sec. 18. The legislature could avoid litigatory challenges of this nature by using separate, single subject bills for legislation that is not plainly of statewide concern.
However, we find no evidence in this case that suggests the program was smuggled or logrolled through the legislature without the benefit of deliberate legislative consideration.
Brookfield, 144 Wis. 2d at 918-19 n.6 (emphasis added). The burden of overcoming this presumption of constitutionality falls upon Chaney, et al., the parties attacking the statute.
Even though we conclude that there is no indication that the MPCP was smuggled or logrolled through the legislature without due consideration and we apply a presumption of constitutionality to such process, our analysis does not end here. Article IV, sec. 18 specifies certain procedural requirements that must be satisfied if legislation is found to be private or local. The previous discussion concerning legislative consideration is only relevant to the presumption of constitutionality portion of the analysis. It has no effect on our determination of whether the MPCP is a private or local bill. We now turn to the determination of whether the MPCP is private or local legislation.
This court has developed three prongs of analysis for cases involving a challenge to legislation as being private or local. The first prong of analysis involves legislation that is specific on its face as to particular people, places or things that allegedly runs afoul of art. IV, sec. 18. See Milwaukee County v. Isenring, 109 Wis. 9, 85
The second prong of analysis involves legislation that is not specific on its face, but which involves classifications and allegedly runs afoul of the specific prohibitions of art. IV, sec. 31, which was adopted as an aid in a sec. 18 analysis. Section 31 explains specific areas in which the legislature is prohibited from enacting any special or private laws. The resolution of these cases depends on whether the legislation "falls into the category of matters upon which the legislature is competent to legislate pursuant to sec. 32 notwithstanding the prohibition of sec. 31." Id.
The third, and final, prong of analysis involves legislation that is not specific on its face, involves classifications, does not violate the provisions of sec. 31, but allegedly runs afoul of sec. 18. See Brookfield v. Milwaukee Sewerage,
Five primary elements comprise the Brookfield test. These elements are as follows:
Brookfield, 144 Wis. 2d at 907-09. While these tests are similar to those used in the equal protection context, they are necessarily differently applied because sec. 18 and equal protection address quite different concerns.
The rationale for using the five-factor test was aptly explained in Brookfield, 144 Wis. 2d at 912-14 n.5. We shall not endeavor a reexplanation of that rationale here. We shall state only that sec. 18 addresses the form in which the legislation is enacted and not the substance of the legislation. In the classification legislation context, it is necessary to use the five-factor test to determine exactly what the substance of the legislation is in order to determine whether the procedural requirements of Wis. Const. art. IV, sec. 18 apply. Thus, although the
Notwithstanding the fact that the title of sec. 119.23, Stats., expressly mentions Milwaukee, the text of the MPCP as well as its placement in the statutes suggests that it involves a classification and should be analyzed under Brookfield rather than Milwaukee Brewers. The MPCP applies to any school district in a city of the first class. It is not limited to Milwaukee because Madison presently meets the population requirement and could become a city of the first class by a simple declaration. While the title of legislation expressly refers to Milwaukee, titles of statutes are not part of the statute itself.
The first element of the Brookfield test requires that "the classification employed by the legislature must be
In Brookfield, we acknowledged that the mere size of a particular city does not necessarily justify treating that city differently than any other city in the state. Brookfield, 144 Wis. 2d at 916. However, cities of the first class, by virtue of their large population and concentration of poverty, are substantially distinct from other cities. In Camasco Realty Co. v. Milwaukee, 242 Wis. 357, 377, 8 N.W.2d 372 (1943), where the challenged law pertained to cities of the first class, we noted that "the requirements of a metropolitan city like Milwaukee as against the smaller municipal corporations of the state are so obvious that any other result would be opposed to the public welfare." In State ex rel. Nyberg v. Bd. of School Directors of the City of Milwaukee, 190 Wis. 570, 577, 209 N.W. 683 (1926), this court upheld a statute regarding first class city school districts and stated that "there is a substantial basis for classifying for school purposes the large communities embraced in cities of the first class as established under our law and the smaller communities of the state."
School districts located in areas with monumentally oppressive poverty problems as found in first class cities have particular educational problems as well. These problems were recognized also in Kukor v. Grover,
Various statistical analyses, while not entirely consistent, dramatically show the need for legislative attention. The dropout rate for the Milwaukee Public Schools is higher than any other area in the state. For example, in the 1988-89 school year, the dropout rate for students in grades 9-12 in the MPS reached 14.4 percent.
During the 1988-89 fiscal year, Wisconsin spent $2.4 billion, or $499.57 per capita, on public welfare. Wisconsin ranked sixth among all states for welfarerelated expenditures.
The statistical data clearly illustrates that the socioeconomic disparities and the educational problems are
The second element of the Brookfield test requires that "the classification adopted must be germane to the purpose of the law." Both the trial court and the court of appeals concluded that the only reasonable inference to be drawn from the MPCP was that it was an experiment intended to address a perceived problem of inadequate educational opportunities for disadvantaged children. Davis, 159 Wis.2d 164-65. We agree with this conclusion.
Improving the quality of education in Wisconsin is, without a doubt, a matter of statewide importance. It is apparent that on a national scale the educational needs of many students are not being met by the present educational structure and options. Average School Aptitude Test (SAT) scores fell from 978 in 1960 to just 870 in 1980.
The educational problems that the nation is experiencing are also evident in the Milwaukee Public Schools, where 55-60 percent of MPS students do not graduate from high school or do not graduate in a sixyear period of time. A recent report by the Greater Milwaukee
The consequences of school dropouts and inadequate education are shocking. High school dropouts comprise 75 percent of the prison population and 80 percent of the families receiving Aid for Families with Dependent Children. Only 55 percent of the male dropouts under age thirty have jobs and only 20 percent have full-time jobs.
Recently, researchers have attempted to discover the reasons underlying inadequate public instruction. A Brookings Institution study examined data from more than 60,000 students in 1,000 public and private schools to test the relationship between 220 different variables. The study concluded that the three most important factors that affected student achievement were student ability, school organization, and family background. Chubb & Moe, Politics, Markets & America's Schools 140 (1990). The factor which is most amenable to legislative efforts appears to be school organization. In this
In response to the conclusions reached by the Brookings Institution study and others, the MPCP was drafted to include two main features to help fulfill the
However, the program is not an abandonment of the public school system. Rather, the MPCP would affect at most only 1 percent of the students in the MPS, giving the program a very small window of opportunity to test the effectiveness of an alternative to the MPS.
Furthermore, the MPCP contains a second feature which not only should benefit the MPS but also the state at large. The second main feature of the MPCP creates an extensive data compilation and reporting process which the state can use to measure the effects of choice and competition in education. The experimental nature of the program is evident from these detailed compilation and reporting requirements.
The experimental nature of the program can also be inferred from the fact that the program, as originally drafted, would have been effective for only a five-year period of time. However, in a partial veto, the governor removed the five-year time limit. It is unclear whether the governor felt that the time limitation was too short or too long. It is apparent, though, that the governor and the legislature directed the gathering of extensive information
The success of the program is dependent upon the participation of numerous and diverse nonsectarian private schools such that the fate of the program does not rest on the operations of one or a few schools. The record indicates that at least nine private schools in Milwaukee filed an intent to participate in the MPCP when it was first implemented. We assume no other city in Wisconsin offers as many private schools as Milwaukee. The significant availability of private schools is so necessary to a reliable sampling of alternative educational methods that it distinguishes a first class city such as Milwaukee from all other communities.
We conclude that the classification of first class cities is germane to the purpose of the law. Clearly, improving the quality of education and educational opportunities in Wisconsin is a matter of statewide importance. The best location to experiment with legislation aimed at improving the quality of education is in a first class city, a large urban area where the socio-economic and educational disparities are greatest and the private educational choices are most abundant. The experimental nature of the MPCP places this case in direct contrast to Brookfield where we found no relationship between Milwaukee county's size and the challenged financing scheme. See Brookfield, 144 Wis. 2d at 920. Therefore, the second element of the Brookfield test is satisfied.
The third element of the Brookfield test requires that the classification not be based only on existing circumstances. Rather, "the classification must be subject to being open, such that other cities could join the class." Granted, the title of the statute is "Milwaukee Parental Choice Program." However, the statute is located in ch. 119, Stats., which addresses first class city schools and is applicable, by virtue of sec. 119.01, Stats., to cities of the first class. There are two requirements for a city to be of the first class. The city must have a population of at least 150,000 and the city's mayor must make an official proclamation that the city is of the first class. See sec. 62.05, Stats.
Presently, Milwaukee, with a population of 628,088, is the only city in Wisconsin which is officially a first class city. However, it is not the only city in Wisconsin which qualifies for such status, nor is the classification
The fourth element of the Brookfield test requires that the law be applied equally to all members of the class. As mentioned earlier, there is only one member of the class at the present time. Milwaukee is the only official first class city. However, if Madison or any other qualifying city were to become an official first class city, then there appears nothing to indicate that the benefits and obligations of the MPCP would not equally apply to these additional members. Therefore, we find that the law would apply equally to all cities of the first class. The fourth element of the Brookfield test is also satisfied.
The fifth, and final, element of the Brookfield test which is applicable to the present case requires that "the characteristics of each class should be so far different from those of the other classes so as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation." The satisfaction of this element has already been addressed. Supra at 527-529. The immense disparity in the socio-economic conditions and educational problems in the MPS as well as the greatest potential private educational choices in the urban area of Milwaukee create the ideal testing ground for experimental legislation such as the MPCP.
The MPCP satisfies all elements of the Brookfield classification test. Therefore, we hold that the MPCP is not a private or local bill within the meaning of Wis. Const. art. IV, sec. 18 and, thus, not subject to its procedural requirements. We emphasize that the MPCP is not a private or local bill because it satisfies the applicable tests, not because of the amount of legislative consideration afforded to it.
II. THE UNIFORMITY CLAUSE
Wisconsin Constitution art. X, sec. 3 states:
This court has stated on several occasions that the requirement of uniformity "applies to the districts after they are formed,—to the `character of instruction' given,—rather than to the means by which they are established and their boundaries fixed." Kukor v. Grover,
Chaney argues that the MPCP violates the uniformity clause of Wis. Const. art. X, sec. 3. The thrust of Chaney's argument involves two steps: (1) the participating
In Comstock v. Jt. School Dist. No. 1, 65 Wis. 631, 636-37, 27 N.W. 829 (1886), this court held that a statute allowing school districts to determine whether to admit nonresident school children did not violate the uniformity clause. In that case, we declared that "when the legislature has provided for each such child the privileges of a district school, which he or she may freely enjoy, the constitutional requirement in that behalf is complied with." Id. at 636-37. Thereafter, the legislature is free to act as it deems proper.
This sentiment was reiterated in several subsequent cases and most recently in Kukor, 148 Wis. 2d at 496-97. In Kukor, found that a statutory school finance system did not violate Wis. Const. art. X, sec. 3 because every Wisconsin student has an opportunity to attend a public school with uniform character of instruction.
The MPCP unambiguously refers to nonsectarian private schools. "Private school" is a defined term under sec. 115.001(3r), Stats., and means "an institution with a private educational program that meets all of the criteria under s. 118.165(1) or is determined to be a private school by the state superintendent under s. 118.167." We assume that the legislature was aware of this statutory meaning and intended to use "private school" in the MPCP as a statutory term of art.
Similar to the legislation in Kukor, the MPCP in no way deprives any student the opportunity to attend a
Therefore, we hold that the private schools participating in the MPCP do not constitute "district schools" for purposes of the uniformity clause. The legislature has fulfilled its constitutional duty to provide for the basic education of our children. Their experimental attempts to improve upon that foundation in no way denies any student the opportunity to receive the basic education in the public school system.
Nevertheless, the MPS argues that the method which the state has chosen to fund the program indicates that the legislature considered this program part of the basic public education delivery system and, thus, subject to Wis. Const. art. X, sec. 3 requirements of uniformity. As noted earlier, participating private schools receive public monies under the MPCP for the education of participating students. Chaney argues that a school supported by public taxation is a "public school" by definition under sec. 115.01, Stats.
Under this theory, any school that accepted public monies would become a "district school" which is subject
In no case have we held that the mere appropriation of public monies to a private school transforms that school into a public school. We decline the opportunity to adopt such a conclusion here.
III. THE PUBLIC PURPOSE DOCTRINE
Chaney also argues that the public purpose doctrine prohibits the legislature from authorizing the expenditure of public funds for the basic education of students to private schools without adequate supervision and controls. Therefore, Chaney concludes that the MPCP violates the public purpose doctrine because the program lacks adequate supervision and controls.
Although the public purpose doctrine is not an express provision of the Wisconsin Constitution, this court has long held that public expenditures may be made only for public purposes. Reuter, 44 Wis. 2d at 211. In Reuter, stated, "[w]e need not go into the origin or the validity of the doctrine which commands that public funds can only be used for public purposes. The doctrine is beyond contention." Id.
In considering questions of "public purpose," a legislative determination of public purpose should be given great weight because "`the hierarchy of community values is best determined by the will of the electorate' and that `legislative decisions are more representative of popular opinion because individuals have greater access to their legislative representatives.'" State ex rel. Bowman v. Barczak,
No party disputes that education constitutes a valid public purpose, nor that private schools may be employed to further that purpose. Rather, the parties dispute whether the private schools participating in the MPCP are under proper government control and supervision, as required by Wisconsin Indus. Sch. for Girls v. Clark Co., 103 Wis. 651, 668, 79 N.W. 422 (1899).
Chaney and, particularly, Superintendent Grover contend the controls in the MPCP over participating private schools are woefully inadequate and insist that these schools be subject to the stricter requirements of sec. 121.02, Stats. MPCP advocates, on the other hand, believe the statutory controls applicable to private schools coupled with parental involvement suffice to ensure the public purpose is met. The circuit court agreed with the MPCP advocates' contention, as we do.
The present situation is similar to that faced by this court in Reuter. In Reuter, we upheld an appropriation of public funds to the Marquette School of Medicine for
Chaney attempts to distinguish the present situation from Reuter in two main ways. First, Chaney argues that private schools participating in the MPCP may do whatever they want with the public money that they receive, whereas the funds in Reuter were earmarked for "medical education, teaching and research." Chaney is facially correct in that no express limitations exist on the use of the funds paid to private schools through the MPCP. However, the private schools must still provide their students with an education. It simply does not matter how the school spends the money so long as it gives the participating student an education that complies with sec. 118.165, Stats., in return for the money. Public schools face a similar situation. While the use of certain state aid to school districts is limited under sec. 121.007, Stats., the public schools must continue to provide a basic education to its students regardless of how and to what extent its programs and investments are funded.
Second, Chaney argues that private schools participating in the MPCP have no duty to demonstrate any institutional quality, whereas Marquette University was accredited by an independent national organization as well as federal and state agencies. See Reuter, 44 Wis. 2d at 217. In effect, Chaney is challenging the quality of
The MPCP specifically allows participating students to attend a "nonsectarian private school." See sec. 119.23(2)(a), Stats. "Private school" has an express statutory definition under sec. 115.001(3r), Stats., which requires the institution to meet all of the criteria under secs. 118.165(1) or 118.167, Stats.
Under sec. 118.165, Stats., a private school must:
Even though private schools are not subject to the same amount of controls which are applicable to public schools, they are subject to a significant amount of regulation which is geared toward providing a sequentially progressive curriculum. This issue is uniquely complicated, however, by the underlying thesis of the MPCP that less bureaucracy coupled with parental choice improves educational quality.
Keenly aware of this potential problem, the legislature included within the MPCP sufficient supervision and control measures. The State Superintendent is required to annually report to the legislature comparing the students participating in the MPCP with students in the MPS. The report includes data on academic achievement, daily attendance, percentage of dropouts, and percentage of pupils suspended and expelled. The State Superintendent is authorized to conduct financial and performance audits on the program, and the Legislative Audit Bureau is mandated to perform financial and performance evaluation. We believe that these detailed reports and evaluations in conjunction with the private school requirements under secs. 118.165(1) and 118.167, Stats., provide sufficient and reasonable control under the circumstances to attain the public purpose to which this legislation is directed.
Control is also fashioned within the MPCP in the form of parental choice. Parents generally know their children better than anyone. The program allows participating parents to choose a school with an environment that matches their child's personality, with a curriculum that matches their child's interest and needs, and with a location that is convenient. If the private school does not meet the parents' expectations, the parents may remove the child from the school and go elsewhere. In this way, parental choice preserves accountability for the best interests of the children.
In Wisconsin v. Yoder,
Id. at 213. Yoder involved the protection of the Religion Clauses, whereas the present case involves purely secular considerations. However, the Yoder Court declared that purely secular considerations "may not be interposed as a barrier to reasonable state regulation of education." Id. at 215 (emphasis added). We have determined in this case that the reporting and private school requirements applicable to the MPCP provide sufficient and reasonable state control under the circumstances.
Further, the cost of education and the funds available for education are dependent upon the taxpayers' ability to fund an intensive public educational program. The amount of money allocated to a private school participating in the MPCP to educate a participating student is less than 40 percent of the full cost of educating that same student in the MPS. Each of the participating private schools is willing to accept the responsibility of educating a child for the $2,500 granted by the state.
We conclude that the Milwaukee Parental Choice Program passes constitutional scrutiny in all issues presented before this court. Accordingly, we reverse the decision of the court of appeals.
By the Court.—The decision of the court of appeals is reversed.
LOUIS J. CECI, J. (concurring).
Let's give choice a chance!
Literally thousands of school children in the Milwaukee public school system have been doomed because of those in government who insist upon maintaining the
The Wisconsin legislature, attuned and attentive to the appalling and seemingly insurmountable problems confronting socioeconomically deprived children, has attempted to throw a life preserver to those Milwaukee children caught in the cruel riptide of a school system floundering upon the shoals of poverty, status-quo thinking, and despair.
The dissent by Justice Bablitch attempts to paint a difference in that the schools that these deprived children would attend under this experimental program would be the recipients of "the state's largesse." Dissenting opinion at 569. IMAGINE THAT! If the expenditure of a mere $2,500.00 per child to teach the deprived children of the poor of the city of Milwaukee is—largesse— what foolishness are we engaged in when the taxpayers are spending approximately $5,000.00 for each of these same children in a failing public school system? The reason why the legislature adopted the classification of private schools specifically located in the city of Milwaukee is that the Milwaukee public school system evidently is viewed by the legislature as a failure despite the dedicated labors of its hundreds of teachers and administrators. Perhaps this experimental program will point the way for improvements that can be utilized throughout the public schools of this state.
As recently as December 11, 1991, Dr. Howard Fuller, Superintendent of the Milwaukee Public Schools, addressing some of the awesome problems of the school system, stated in a television interview that he was unwilling to let things be as they were. In other words, the status quo must go. While not addressing the school choice program, he was attempting to address the
The dissent opts for maintaining the status quo. Justice Bablitch obviously does not now trust the legislative process he claims to know so well. His dissent is replete with anecdotal statements not a part of this record, and it is improper that such purported information, known to him alone, be used. Unfortunately, the dissent does not want to attempt to give choice a chance.
On February 22, 1989, less than two years ago, the dissent in Kukor v. Grover,
(Emphasis added.) The author of the above-quoted dissenting opinion? Justice Bablitch.
Apparently the legislature has decided in this constitutionally proper experimental program to give choice a chance. I believe that the legislature has fashioned a constitutionally correct experimental program to deal with the terrible problems it is attempting to resolve. I join the majority opinion, with which I am in full accord.
Let's give choice a chance!
HEFFERNAN, CHIEF JUSTICE (dissenting).
The Milwaukee Parental Choice Program, sec. 119.23, Stats., was enacted in violation of the procedures mandated
The respondents challenge the statute on both procedural and substantive grounds. The method of constitutional review under procedural provisions such as art. IV, sec. 18 is distinct from constitutional review of the substance of a statute. As we explained in Brookfield: "In sec. 18 cases, because the legislature is alleged to have violated a law of constitutional stature which mandates the form in which bills must pass, the court will not indulge in a presumption of constitutionality, for to do so would make a mockery of the procedural constitutional requirement." Brookfield, 144 Wis. 2d at 912-13 n.5. The concept of a "presumption of constitutionality" is inappropriate when discussing legislative procedure.
The majority's novel and disturbing approach to determining whether a presumption of constitutionality exists derives from the discussion in footnotes 5 and 6 of Brookfield regarding whether a sham or fraud has occurred in the legislature. I disagree with the majority's distillation of Brookfield. Article IV, sec. 18 does more than protect against legislative fraud—it ensures accountability. Quite simply, a legislator must vote separately on private or local matters, and must answer to his or her constituency for those votes. See Brewers, 130 Wis. 2d at 145 (Steinmetz, J., concurring in part and dissenting in part), and 156-58 (Ceci, J., concurring in part and dissenting in part). It begs the question to presume that because the choice program was not "smuggled" that it is not in fact a private or local law.
Review of the level of consideration or deliberation accorded a particular piece of legislation is an improper intrusion into the legislative process. Moreover, it is impossible. The majority's astonishing conclusion that choice was "debated extensively" by the entire legislature, despite the fact that it was neither separately debated nor voted upon in the Senate—as it should have been as a local bill—offers a clear example of the inappropriateness of review by judges of the deliberative process of the legislature. Review under art. IV, sec. 18 should be limited to the face of the bill, and nothing more. I agree with Justice Abrahamson that a presumption
Regardless of the presumption accorded the choice legislation, it is apparent that its passage as a part of a multi-subject budget bill violated art. IV, sec. 18. The title of the bill, its "experimental" nature, and the startling statistics cited by the majority regarding the Milwaukee Public School system leave no doubt that the law is private and local and intended to apply only to the city of Milwaukee. The statute, as was the bill, is entitled "Milwaukee Parental Choice Program." The text of the statute consistently refers to "the city." And while the title is not a part of a statute, it is a constitutional requirement that the legislature must caption a private or local bill under art. IV, sec. 18. In this case the title demonstrates that the choice program was specifically tailored for Milwaukee.
The majority's exposition of why Milwaukee and its public school system is so different from other cities is self-defeating—the classification under whose aegis this legislation purports to come is cities of the first class, not Milwaukee—and underscores the fact that the program is aimed only at Milwaukee. As the court of appeals noted:
Davis v. Grover,
The majority goes on to conclude that because choice is "experimental" legislation, the classification is germane to the purpose of the law and therefore is a general, not a private or local law.
The majority opinion and Justice Abrahamson's dissenting opinion agree that the choice program is experimental. I am unconvinced that this is so, and if so that is constitutionally irrelevant. Nothing in the language of the statute indicates that it is "experimental." There is no statement of a legislative purpose to conduct an educational experiment. Nothing in the statute provides for expansion of the program if it proves successful. Governor Thompson's veto of the five-year sunset provision detracts from rather than adds to the argument that the legislation is experimental.
While the majority's conclusion that choice is experimental, in the sense that all legislation is, is logically defensible, calling the law "experimental" in the absence of a clearly expressed legislative intent is the type of post-hoc justification this court rejected in Brookfield, 144 Wis. 2d at 918 n.6. And as stated above, from a constitutional point of view it is irrelevant that it may be experimental. On its face, the legislation is not an experiment, and for art. IV, sec. 18 purposes this court should look no further. From the face of the legislative document it is apparent that the legislation specifically was drafted to address the tremendous problems facing the Milwaukee Public School system, and, as Justice Bablitch concludes, and I join in his conclusion, that the legislation is an attempt to provide funding to private schools which are located only within the city of Milwaukee.
Davis, 159 Wis. 2d at 165 (footnote excluded). Thus, the choice legislation fails the second test of Brookfield that "the classification adopted must be germane to the purpose of the law." Brookfield, 144 Wis. 2d at 907.
I conclude that sec. 119.23, Stats., is a private and local law enacted in violation of art. IV, sec. 18. Finally, I am fully in accord with Justice Abrahamson's rationale and conclusion that as enacted the choice legislation substantively violates Wis. Const. art. X, sec. 3.
I respectfully dissent and would affirm the decision of the court of appeals.
SHIRLEY S. ABRAHAMSON, J. (dissenting).
The majority opinion declares constitutional the "experimental" Milwaukee Parental Choice Program, which involves less than one percent of the city's school population
Despite the majority opinion's limited application, I dissent because I believe that the existing Parental Choice Program violates art. X, the Education Article, of the Wisconsin Constitution. I would affirm the decision of the court of appeals.
First, I conclude that the Parental Choice Program violates the mandate of art. X that the legislature provide a system of free public education for children of a certain age.
In 1846 when Wisconsin's first constitution was drafted, substantially all schooling was private. 37 O.A.G. 347, 349 (1948). Although art. X was debated at the convention, support for wholly publicly funded district schools was virtually unanimous. The constitutional plan was an express rejection of and remedy for the patchwork system of diverse schools with mixed public and private funding that existed during the territorial period. Article X mandates a state system of free
From art. X's command to the legislature to establish publicly funded education and its extensive provisions for a general system of free public schools, I conclude that the constitution prohibits the legislature from diverting state support for the district schools to a duplicate, competitive private system of schools.
My second reason for concluding that the Parental Choice Program is unconstitutional is that the Program does not ensure that the students who receive basic education through public funding in participating private
Interpretation of the uniformity provision is difficult because the language is ambiguous and the framers of the constitution did not discuss this particular clause. Kukor, 148 Wis. 2d at 519 (Heffernan, C.J., Abrahamson, J. & Bablitch, J., dissenting); Erik LeRoy, The Egalitarian Roots of the Education Article of the Wisconsin Constitution: Old History, New Interpretation, Buse v. Smith Criticized, 1981 Wis. L. Rev. 1325, 1350. Nevertheless, the court has derived at least two principles from art. X and from the educational practices in Wisconsin at the time of the adoption of the constitution to govern the interpretation of art. X, sec. 3.
This court has repeatedly asserted the principle that art. X, sec. 3 "applies to the districts after they are formed, —to the character of the instruction given, —rather than to the means by which they are established and their boundaries fixed." Kukor, 148 Wis. 2d at 486 (quoting State ex rel. Zilisch v. Auer, 197 Wis. 284, 290, 223 N.W. 123 (1928)). Therefore we know that the framers were not concerned in art. X, sec. 3, with the structure of the school system established
The majority opinion, however, focuses on the organization of the schools providing the education and not on the character of the education provided in interpreting the term "district schools."
The second principle is that the framers of the 1848 constitution viewed uniform public education as the means to strengthen democracy by allowing knowledgeable participation in all public affairs. LeRoy, supra, 1981 Wis. L. Rev. at 1325-26, 1345-46. "A general system of education was the only system on which we could depend for the preservation of our liberties." Kukor, 148 Wis. 2d at 488 (quoting Journal and Debates of the Constitutional Convention 238 (1847-48)). Uniform public education provided a unifying force for the citizens of diverse heritages who settled in the new state of Wisconsin. "Universal Education," Milwaukee Sentinel & Gazette (August 22, 1846), reproduced in Milo M. Quaife, The Movement for Statehood 188 (1918); LeRoy, supra, 1981 Wis. L. Rev. at 1347.
Article X, sec. 3 requires the legislature to ensure that all Wisconsin children who receive basic education through public funding receive a uniform education reflecting the shared values of our state. By failing to guide adequately the education of students who participate in the Parental Choice Program, the legislature has failed to obey its constitutional mandate.
The majority opinion devotes nearly three quarters of its lengthy opinion to the issue whether this experimental program is a private or local bill passed contrary to the procedural requirements set forth in art. IV, sec. 18, Wis. Const.
Unfortunately this court's prior opinions, and the majority and two dissenting opinions in this case, have not set forth analyses and tests that the legislature, the public, lawyers, circuit courts or the court of appeals can apply with any certainty or confidence. No one can be sure, until this court decides, probably by a closely divided vote, whether a law sets forth a classification making the Brookfield test applicable, Brookfield v. Milwaukee Metro. Sewerage Dist.,
The majority opinion, like the court's prior opinions, again fails to explain the overlap between the classification, test under art. IV, sec. 18, and the test under the state constitutional equal protection guarantee.
More significantly, while upholding the constitutionality of the statute, the majority opinion has mandated an analysis that seriously infringes on the legislature's autonomy. The majority opinion applies a
If the majority believes a law tested under art. IV, sec. 18, a procedural provision, requires a different presumption than the presumption of constitutionality generally accorded a law tested under a substantive constitutional provision, and I do not think it does, I suggest that the court accord the law challenged under art. IV., sec. 18, a presumption of regularity.
Because the legislature has the power to enact private and local laws as separate laws and because the statutes are replete with laws affecting only first class cities or specific people or places in the state, I believe the court should, in deference to the separation of powers doctrine, exercise restraint in declaring laws unconstitutional under art. IV, sec. 18. The court should invalidate a statute on the basis of the form of the statute only in exceptional cases where the private and local aspects are pervasive and only a general statewide interest appears.
For the reasons set forth, I dissent. I would affirm the decision of the court of appeals.
WILLIAM A. BABLITCH, J. (dissenting).
I make no judgment, public or private, as to whether "choice" is good public policy. That issue is not presented nor is it appropriate for us to so decide.
It did not receive such consideration. In fact, it received no consideration whatsoever in the senate.
"Choice" was never debated in the senate. It never received a public hearing in the senate. No expression of public sentiment was ever sought by the senate nor received. There was no separate vote taken on it in the senate. It passed the senate as part of the budget bill four legislative days after the senate received it as a separate piece of legislation from the assembly. See 1989 Wisconsin Assembly Bulletin, 169; 1989 Senate Bulletin 148-149. The committee in the senate to which the original bill was referred never even dealt with it.
Yet the majority opinion inexplicably concludes that "choice" was "greatly debated in legislative committee public hearings and by the entire legislature." Majority op. at 512 (citation omitted) (footnote omitted). "[W]e find no evidence in this case that suggests the program was smuggled or logrolled through the legislature without the benefit of deliberate legislative consideration . . .. Clearly, the legislature `intelligently participate(d) in considering' this program." Id. at 522-523.
The evidence, contrary to the assertions of the majority opinion, is overwhelming that the senate never "intelligently participate[d] in considering" this program. On Wednesday, March 15, 1990, the Wisconsin Assembly passed Assembly Bill 601, The Milwaukee Parental Choice Program, and sent it to the Wisconsin
The majority, having concluded that "choice" was debated extensively by the legislature, affords it a presumption of constitutionality. The majority then, after analyzing only one of two classes that the legislation creates, concludes that it is not a private or local bill within the meaning of article IV, section 18.
I agree with Chief Justice Heffernan that the legislation fails the "private or local" constitutional prohibitions of article IV, section 18 with respect to the classification of school children who live in the city of Milwaukee. That is the first classification created by the law, and that is what the majority addresses. What most observers are unaware of, and what the majority does not address, is that the bill creates a second classification which also violates art. IV, sec. 18: private schools located within the city limits of Milwaukee. These are the only eligible recipients of the state's $2.5 million annual outlay for this program. This is an annual outlay, payable only to a small group of eligible private schools, and will continue to be paid for out of state taxpayers' funds, unless and until it is repealed by the legislature. If the legislature wanted this to be law, it could constitutionally do so only as a separate piece of legislation, considered separately by each house of the legislature, and not as part of a "must pass" omnibus budget bill. Including private legislation in a "must pass" omnibus
The legislation in question provides that only school children in school districts located within cities of the first class may participate; their "choice" is limited to private schools located within the city of Milwaukee. Thus, the legislation adopts two classifications: 1) school children residing in cities of the first class and attending school districts within cities of the first class; and, 2) private schools located within cities of the first class. The majority opinion addresses only the first classification and finds it constitutionally unobjectionable because, in essence, cities of the first class have the most educational problems (the first prong of the classification tests, e.g. real differences); and because this legislation is "experimental" in nature (the second prong of the classification tests, e.g. germaneness).
Missing in the majority's analysis, completely missing, is any meaningful discussion whatsoever with
The first prong of the classification tests provides that the classification employed must be based on substantial distinctions which make one class really different from another. How are private schools located within cities of the first class "really different" from all other private schools located in the state of Wisconsin? To ask the question is to answer it; there are no differences. None are posited by the petitioners, none are discernible. Yet under this legislation a private school located within the city of Milwaukee can be the recipient of the state's largesse, a private school located just outside the city limits cannot. One can only conclude that the authors of this legislation intended to benefit only private schools located within the city, and there are no reasons given to support that discrimination.
The second prong of the test provides that the classification adopted must be germane to the purpose of the law. The majority opinion argues quite cogently that this is "experimental" legislation. The petitioners argued this same point extensively in their briefs and at oral argument. Assuming both petitioners and the majority are correct in that hypothesis, then how is it that only private schools located in the city of Milwaukee can test that experiment? Why not private schools located in the suburbs of Milwaukee, or any other private school? The classification adopted, private schools located in the city of Milwaukee, is simply not germane to the avowed purpose of educational experimentation. Any other private school, located anywhere in the state, is equally capable
The legislation as drafted puts the emphasis on the first classification. But the above analysis becomes clearer if one simply re-states the legislation and puts the emphasis on the second classification. Assume the legislation said: "Any nonsectarian private school located in the city (of the first class) shall receive $2,500 per year for each student who resides in the city (of the first class) and attends the private school providing that all of the following apply: (Here, the bill would state all the criteria listed in the actual legislation)." With this re-drafting, everything ends up the same as the original legislation. But now it becomes clear why this legislation is constitutionally objectionable. "Why should private schools in Milwaukee be treated preferentially?" one would legitimately ask. "Why should they get this $2.5 million annually and not us?" private schools in suburbs of Milwaukee and other cities in Wisconsin would ask. "What is it about them that makes them different from us?" The answers are obvious. There are no reasons.
I do not doubt the sincerity of the authors of this legislation with respect to their belief that "choice" is good public policy. It may be, it may not be. I make no judgment as to that. Perhaps school children who reside in Milwaukee will be major beneficiaries of such a program. But this legislation also targets another beneficiary, a very small group of private schools located only in the city of Milwaukee who will collect the amount of $2.5 million annually. This benefit is not subject to debate. It is their's until the legislature decides otherwise.
This principle was also discussed by a different justice in the same opinion in his dissenting and concurring opinion:
The principles stated in these prior opinions have however been ignored by their authors who inexplicably have joined the majority in this case. The majority opinion here glosses over these principles by pointing out that a similar separate bill had been passed by the Assembly and "all" the Senate did was include it in the omnibus budget bill. But that gloss completely disregards the legislative history of "choice" in the senate. As explained above, this was never debated in the senate, it never received a public hearing in the senate, there was no expression of public will. It passed the senate as part of the budget four legislative days after it was received from the assembly.
I turn next to the discussion in the majority opinion regarding the presumption of constitutionality that should or should not attach to this legislation. The majority adopts a middle ground which will only serve to confuse. Better had they simply stated that either a presumption of constitutionality always attaches to this type of legislation or it does not. From their opinion, one can only guess as to how much deliberation is sufficient for the presumption to attach.
I conclude a presumption of constitutionality should never attach to legislation that is challenged as being procedurally unconstitutional, as opposed to legislation
The procedural challenge here asserts that the legislature failed to follow essential procedural steps mandated by our constitution. The challenge, in essence, is that the legislation on its face is private or local and was included in a multisubject bill, and is therefore violative of article IV, section 18. No one disagrees that on its face the legislation is private or local and was part of a multisubject bill. Why, then, is such legislation entitled to a presumption that it is constitutional? On its face, it clearly is not. Neither logic, common sense, nor precedent requires a presumption of correctness when on its face it is not correct. Our only obligation in such a situation is to determine whether the legislation fits within one of the narrowly circumscribed exceptions that have been carved out by this court. If anything, logic would tell us that legislation that on its face is unconstitutional starts with a presumption that it is not constitutional. But I do not argue for that proposition; I urge only that in such a situation, no presumption should attach either way. When legislation that is private or local on its face and could have been passed as a separate piece of legislation, with all the legislative scrutiny that entails, is instead passed as a part of a multisubject bill, it does not warrant a presumption of constitutionality. Because of the potential for abuse that is present in such a situation, it deserves careful scrutiny with no presumption attaching.
Perhaps an example might make this clearer. Assume that an Assembly Bill granted a liquor license to
The majority's conclusion rests on their belief that this legislation deserves the presumption because of the attention this issue received in the process. Putting aside the problem addressed earlier in this dissent that the senate never even debated it, that conclusion invites confusion. What, in the future, will constitute sufficient "attention" so as to deserve the presumption? The scenarios under which a bill that passes one house but gets sidetracked in the other, and then appears in the budget bill, are almost infinite in number. And yet the majority gives the same presumption of constitutionality to that situation as attaches when both houses pass the bill. The presumption does not apply, if for no other reason than the simple fact that when a bill passes one house but fails to pass in the other, and then magically appears in
The majority does not need their presumption analysis to reach the result they reached. They should discard it in favor of the black letter rule which this court adopted three years ago. Only confusion can result.
In conclusion, the result reached by the majority leaves the law regarding article IV, section 18 in serious disarray in two major respects. First, with respect to classification legislation, the result in this case cannot stand alongside the recently decided case of Brookfield v. Milwaukee Sewerage,
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