Will the Budget Bill Render Unconstitutional the State’s School Finance System?

The Wisconsin Supreme Court has held in both Kukor v. Grover, 148 Wis. 2d 469, 496, 436 N.W.2d 568 (1989) and Vincent v. Voight, 2000 WI 93, ¶3, 236 Wis. 2d 588, 614 N.W.2d 388, that Wisconsin public school students have a fundamental right to an equal opportunity for a sound basic education.

In Vincent, the court explained that this fundamental right entails both the opportunity for students to be proficient in mathematics, science, reading and writing, geography, and history, and for them to receive instruction in the arts and music, vocational training, social sciences, health, physical education and foreign language, “in accordance with their age and aptitude.”  The court held in Vincent that the state’s school finance system will pass constitutional muster only so long as the legislature provides sufficient resources so that school districts across the state can offer students the equal opportunity for a sound basic education that the Wisconsin Constitution requires

The proposed state budget will hold revenue limits constant for the next two years.  The only additional funding provided will be a bump in categorical aid in the second year of the biennium.  Other than this additional $100 per student categorical aid in 2016-17, school districts throughout the state will be unable to increase the amount of revenue they can raise and so, for practical purposes, the amount they can spend over the next two years.

Every school district’s expenses go up every year.  With revenue capped, the only route to a balanced budget entails cuts in the programs and activities that generate the expenses.

Will there be school districts whose budgets will be so pinched by the revenue limits imposed by the legislature that their district schools will no longer be able to provide the “instruction in the arts and music, vocational training, social sciences, health, physical education and foreign language” in accordance with the age and aptitude of the schools’ students that the Wisconsin Constitution requires?

Particularly for rural school districts with declining enrollment, the answer will almost certainly be yes.  Under Vincent, which is controlling Wisconsin precedent, this will violate the constitutional rights of the students in any such districts.  Under Vincent’s logic, this in turn would render the state’s school finance system unconstitutional.

Or so, at any rate, lower courts in Wisconsin will be obligated to hold if the issue is presented to them.  If the issue were to reach the supreme court, the likelihood that the current Wisconsin Supreme Court would honor stare decisis and follow its Vincent precedent is another matter entirely.

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12 Responses to Will the Budget Bill Render Unconstitutional the State’s School Finance System?

  1. Good points, Ed. My question is who will bring the legal challenge?

    • Jeff — I suppose that suit could be brought on behalf of students in a strapped school district that was forced to cut classes in required subjects, naming the school district and state as defendants (after giving proper notice). Be a tough case to take on as an attorney, though, given what the ultimate outcome is likely to be.

      • But who would pay for the significant costs of the litigation?

        • Do any of the existing education advocacy organizations have the funding to bring such lawsuit?

          Is another consequence of Act 10’s destruction of the teachers unions the loss of about the only organization who had the funding and the national support to have brought such a lawsuit?

          • If some school districts really get squeezed over the next few years such that they truly can’t provide the classes that the supreme court has required, then a lawsuit could be considered. I think the cost of the litigation wouldn’t be an insuperable problem if there was a realistic chance of success. But it is hard to believe that there would be a realistic chance of success, given the current make-up of Wisconsin Supreme Court

  2. Mad4Madison says:

    Ed –
    I do not believe the following statement is accurate:

    “With revenue capped, the only route to a balanced budget entails cuts in the programs and activities that generate the expenses.”

    Act 10 does not limit the ability for a district to go before the citizens and ask for a referendum. Yes, that bar is high. And yes, it is not a 100% guarantee. But any district can get a higher than capped amount by successfully going before the community.

    • Yes, it is true that any school district can go to referendum, and the voters would either approve or reject the extra spending. But the rights of students denied an equal opportunity for a sound basic education because their school district can’t afford to provide one cannot be dependent on the whims of the voters at a referendum. So the possibility of a referendum won’t be a defense to a claim of students that they are being denied their fundamental educational rights. I also don’t think it would be a defense for the state if it were dragged into a lawsuit by a school district sued by students, though I suppose that may be arguable.

      • Mad4Madison says:

        Ed –

        I am not disputing the legal aspect of a case. I am merely pointing out an error in your comment. The only route to a balanced budget is not to cut programs or activities. There are two others: increase the tax receipts coming in and increase actual revenue to the district. For example, allowing the community to rent out space for conferences, etc. Or creating programming for the local businesses – I am thinking education, etc. Or allowing advertising in school stadiums. Or allowing sponsorships of athletics.

        Do some in the community find those options less than appealing? Of course. But it is an option and it is a route.

        As to the chances of an operating referendum passing in a rural district, well what would the chances be for a referendum to pass in a large district where $23m was obtained several years ago for maintenance – especially one where the funds could not be audited after the Board requested specifics? Oh wait, that actually did happen and the referendum was passed…

        I am not an expert in the law. Ed, what would the courts say if a district simply eliminated programming without attempting to balance the budget with the other tools that were available? Does the burden to deliver the education to the students lie with the state or the district? Could the courts rule that the law simply comments on the education and not the method or the manner upon which the education is delivered? For example, could a district partner with an online provider of language education and claim that they are indeed offering language courses – just not in the manner that they are used to?

        • The obligation to provide an equal opportunity for a sound basic education falls on the school district. If a school district that is falling short is sued, theoretically it could seek to bring the state into the litigation as an additional defendant, claiming that the state’s lack of funding and stringent revenue limits are responsible for the school district’s alleged failure to provide what the state constitution requires.

          I think that providing, say, language instruction via online classes would likely be okay from a constitutional perspective, so long as the online classes weren’t plainly lousy. A court’s unlikely to get into the business of passing judgment on the suitability of different modes of instruction.

  3. Laura chern says:

    I wonder what the chances are of an operating referendum passing in a rural district.

  4. Kristen says:

    We have schools right here in MMSD that are unable to provide that kind of instruction. I believe they are going to completely cut foreign language instruction from my daughter’s high school next year. (It’s Shabazz – the alternative school, so perhaps they have different requirements because of their smaller size?) I’m more than happy to have her do foreign language virtually (or pay for a class at MATC) in order to reap the enormous benefits that Shabazz offers….but be aware that these types of cuts aren’t just happening in the rural districts.

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