Vincent v. Voight

¶1¶ 90. (concurring). I agree that the Petitioners' constitutional challenge presents a justiciable issue for this court. I also agree that the current system of school financing is constitutional and that there is no reason to remand the case for further proceedings.

¶2¶ 91. However, I do not agree with the test that the majority opinion sets forth for examining whether the state school financing system violates art. X, § 3 of the Wisconsin Constitution. Therefore, I do not join ¶¶ 3, 48-53, or 87 of the majority opinion.

¶3¶ 92. Article X, § 3 does not mandate absolute uniformity of equal opportunity for education in all school districts in this state. Majority op. at ¶ 46 (citing Kukor v. Grover, 148 Wis. 2d 469, 487, 436 N.W.2d 568 (1989)(Ceci, J., plurality) and id. at 514 (Steinmetz, J., concurring)). Legislative determinations in the area of school finance schemes are entitled to great deference by this court. Majority op. at ¶ 46 (citing Kukor, 148 Wis. 2d at 502-03 (Ceci, J., plurality) and id. at 512 (Steinmetz, J., concurring)).

¶4¶ 93. Like the majority of this court, I conclude that the Petitioners have not demonstrated beyond a reasonable doubt that the present system of school financing is not "as nearly uniform as practicable" as guaranteed by art. X, § 3 of the Wisconsin Constitution. I respectfully concur.

¶5¶ 125. (concurring in part, dissenting in part). This is a landmark case in the history of education for the state of Wisconsin. For the first time, this court has articulated the standard behind the constitutional guarantee to our children of an equal opportunity for education. With three justices, including this writer, joining that part of the majority opinion of Justice Crooks that articulates a constitutional standard for education, the guarantee of an equal opportunity for education finally has teeth.

¶6¶ 126. Unfortunately, a different majority concludes that the present system meets constitutional muster. I disagree. I agree with the concurrence/dissent of Chief Justice Abrahamson that this case should be remanded for further proceedings, in light of the standard we set in the majority opinion, to determine whether the defendants have met their constitutional obligation. This record raises serious and troubling questions about our system of education that should be examined more thoroughly below.

¶7¶ 127. Accordingly, I join paragraphs 3, 87, footnote 2, and Section II of the majority opinion, and join *657the concurrence/dissent of the Chief Justice.1 I write to more fully document the condition of education in this state as shown in the circuit court. This evidence is not in dispute.

¶8¶ 128. This record demonstrates that various school districts suffer from woeful conditions: inadequate course offerings, an inability to raise further funds for ever-increasing educational demands from the state and federal government, and special needs that are either going unmet or are being met at the expense of regular education programs. This record further shows great financial disparities among school districts. As a result of all of this, it cannot come as a surprise that tens of thousands of children across the state fail to meet even basic competency in reading, writing, mathematics, language, science, social studies *658and the arts. These children have major gaps in knowledge and skills basic to progress. For these children, the constitutional guarantee of an education is an empty promise.

¶9¶ 129. Despite the historic and commendable efforts by the Governor and the legislature to support public education, after reading this record one is left with the overwhelming realization that, for too many of our children, those efforts have not satisfied even a minimal constitutional guarantee of an equal opportunity for an adequate education.

¶10¶ 130. This record should leave every citizen greatly concerned at the lack of fairness and opportunity for tens of thousands of children in our schools. For a state founded by immigrants and built with a common commitment to education for all, rich and poor alike, regardless of the accident of place of birth, this record shows that we have drifted far from the dreams of our ancestors.

¶11¶ 131. Several distinct categories illustrate the systemic problems in education.

¶12¶ 132. Plants and equipment. Undisputed affidavits in the record illustrate that conditions in many districts across the state are hardly conducive to education. Maintenance is deferred, if done at all. Leaks, cracks, obsolete lockers go unrepaired. Libraries are inadequately stocked. Computers, where they exist, are largely out of date. School buses are run-down and accordingly more expensive to fix. As buses dwindle, transportation of students takes more time: One district has children traveling 90 minutes, leaving home at 6:50 a.m. and arriving to school at 8:20 a.m.

¶13¶ 133. House trailers, storage rooms, hallways, elevator shafts, and the like are used for classrooms. In one school science class is held in a trailer, but has no *659science equipment. Social studies is being taught off a cart, room to room. Special education therapy space is provided in a janitor's area; and in one school it is held in a storage room closet off the stage. Another school has school suspension served in a janitor's closet.

¶14¶ 134. Many schools are unable to provide facilities that are accessible to people with disabilities. Playgrounds are unsafe, uninsured, and unequipped.

¶15¶ 135. Course offerings. In many schools, course offerings are being curtailed due to needs in other educational areas. Textbooks are seriously outdated. Languages have been cutback or completely eliminated. Advanced courses in subjects such as science, math, and technology are taught on an alternate year schedule. Electives, such as family and consumer economics classes and technical education classes, have been eliminated. Career counseling in many schools is severely limited or nonexistent. Funds for training staff in computer technology are unavailable, which together with inadequate equipment make it impossible to teach basic computer skills.

¶16¶ 136. Children with special needs. It is undisputed in the record that public schools are facing a significant increase in the number of special needs students. These students generally fall into three, sometimes overlapping, categories: Limited English Speaking (LES) students, children living in poverty, and children with disabilities. The children come to school lacking the language, social, and cultural tools many of us take for granted. These children must be taught how to learn before they can begin to learn.

¶17¶ 137. A commonly voiced concern by numerous districts in the state is that special education programs established to meet these needs are eating up the dollars from other already limited education programs. *660The communities of Wausau and Milwaukee are striking examples of this problem.

¶18¶ 138. Wausau has experienced a significant increase in the number of Hmong students, approximately 22 percent in the last ten years, and increasing steadily. The kindergarten enrollment is 34 percent LES students. The language problems are significant. Communications between teacher and student, and between teacher and parent, are severely limited. Accordingly, LES costs, including indirect costs, are high; but unfortunately, state reimbursement has been decreasing. Currently, the state reimburses for 25 percent of the direct LES costs, none for the indirect costs. Direct costs associated with these needs exceed $2.5 million. Indirect costs exceed $1 million. As a result, Wausau School District has had to curtail programs and staffing. It is grossly understaffed in its health services program, despite the increasing number of high needs students who have greater health requirements. Wausau has been unable to implement the state-mandated middle school foreign language program. It has been forced to make cuts with respect to staff development and teacher mentor programs. It has been unable to implement its five-year technology plan, estimating the district is spending approximately three times less on its technology budget compared with adequate technology programs in other districts.

¶19¶ 139. Wausau is trapped in a vicious cycle. As it reduces its general program quality to make up for mandated special needs, students without special needs leave for private schools to seek the quality that public schools no longer provide. With the resulting drop in enrollment, state dollars decrease and the schools must further reduce program quality.

¶20*661¶ 140. Milwaukee must address perhaps an even larger struggle. It is faced with a large number of high needs students. Approximately 80 percent of its students qualify for free or reduced lunch. Over 12,000 of their students are reported as homeless. Poverty undisputedly leads to distinct learning problems. As with Wausau, the needs of these students inevitably impact on regular educational programs.

¶21¶ 141. Financial disparities. The record, which is undisputed, shows inter alia the following financial disparities:

¶221. School districts vary widely in the amount spent per pupil, ranging from $13,534 to $5301.

¶232. The levy rates vary widely, ranging from $4.71 to $20.63 per thousand.

¶243. The ability to raise dollars for every mill levied varies widely. For example, in 1996-67 Gibraltar was able to raise $1,270,000 for every mill levied; Bowler was able to raise $55,000 for every mill levied.

¶25¶ 142. The effects of these disparities are many. To name but two:

¶26.1. Property poor districts that tax at the same rate as property rich districts have significantly fewer dollars to spend on education. For example, the two like-size districts of Neenah and Elmbrook tax at approximately the same rate of $11.55 per thousand. However, due to the disparity of tax base, Elmbrook is able to spend $1400 more per pupil than Neenah, which amounts to over $9,000,000 more available to Elmbrook than to Neenah for educational needs.

¶272. In some like-size districts, which spend the same, the tax burden on the taxpayer is significantly disparate. For example, Beloit and Wauwatosa spend approximately $8500 per pupil. Yet Beloit must tax *662their taxpayers $2.17 per thousand more than Wauwa-tosa to raise the same amount of dollars.

¶28¶ 143. The circuit court found that this evidence was undisputed. Plaintiffs assert that the system's disparities deny students in property-poor districts equal educational opportunities. Based on this record it is hard to disagree. But without a standard, the circuit court was powerless.

¶29¶ 144. Statewide testing.

¶30One measure of student achievement is the Wisconsin Student Assessment System (WSAS) Knowledge and Concepts Examinations at grades four, eight, and ten. Student scores were reported in four general proficiency categories: advanced, proficient, basic, and minimal performance.

¶31¶ 145. "Advanced" means achievement beyond mastery, in depth understanding.

¶32¶ 146. "Proficient" means competent, including mastery of the important knowledge and skills.

¶33¶ 147. "Basic" means somewhat competent, mastery of most of the important knowledge and skill, but evidence of at least one major flaw in understanding.

¶34¶ 148. "Minimal Performance" means limited in content, evidence of major misconceptions or gaps in knowledge and skill basic to progress.

¶35¶ 149. The scores achieved leave serious questions as to the adequacy of education achieved by tens of thousands of children across the state.

¶36¶ 150. Based upon this testing, in the fall of 1996 the Wisconsin Department of Public Instruction estimated2 that in reading, 8 percent of the fourth graders, 15 percent of the eighth graders, and 14 percent of the tenth graders were in the "Minimal Performance Cate*663gory." Assuming approximately 60,000 students in each grade tested, 4800 fourth graders, 9000 eighth graders, and 8400 tenth graders had an education achievement that was limited in content, with major misconceptions or gaps in knowledge and skills basic to progress.

¶37¶ 151. With respect to language and writing skills, 10 percent (that is, 6000 children) of the fourth graders, 19 percent (11,400 children) of the eighth graders, and 14 percent (8400 children) of the tenth graders had an education achievement that was limited in content, with major misconceptions or gaps in knowledge and skills basic to progress.

¶38¶ 152. The figures are even worse in mathematics and science. For example, in mathematics 33 percent of the tenth graders (20,000 children) had an education achievement that was limited in content, with major misconceptions or gaps in knowledge and skills basic to progress.

¶39¶ 153. This lack of educational achievement is particularly evident in the scores of children with special needs, of which there are tens of thousands of the over 800,000 students in K-12. In reading, although 74 percent of the English proficient students in fourth grade were either at the "Proficient" or "Advanced" levels, only 28 percent of the Limited English Proficient students were at those levels. Seventy-nine percent of the students without disabilities were at those levels, while only 31 percent of the disabled students were at those levels.

¶40¶ 154. These wide disparities continue through the grades tested, and cut across mathematics, language, arts, science, and social studies.

¶41¶ 155. It is shaming to this great state.

¶42*664¶ 156. By a slim majority, this court today decides that the present system is constitutionally acceptable. However, if the conditions outlined above remain unattended, the system will inevitably get worse. If the legislature does nothing, the children will be back demanding their constitutional guarantee.

¶43¶ 157. Unquestionably, the cost to fix the system is high. The cost of not fixing it will be much higher: Uneducated citizens will extract extremely high social costs in the future. As the mechanic on television says, "You can pay me now or pay me later."

¶47¶ 158. (concurring in part; dissenting in part). The principal issue in this case is stated by the petitioners: "Does the Wisconsin school finance system violate the Uniformity Provision of the Education Article, article X, § 3 of the Wisconsin Constitution?" A majority of the court holds that it does not. Three justices, however, would rule otherwise. Moreover, these three justices and Justice Crooks interpret art. X, § 3 in a manner that encourages future litigation and will plunge the judiciary into the legislature's domain.

¶48¶ 159. I join the concurring opinion of Justice Sykes not because I am unwilling to apply standards embedded in the text of the constitution or in statutory law-whatever the field, regardless of the consequences-but because I am unwilling to impose legal standards that did not exist before this decision.

¶49I

¶50¶ 160. A majority of the court embraces the proposition that art. X, § 3 of the Wisconsin Constitution gives Wisconsin students "a fundamental right to an *665equal opportunity for a sound, basic education. An equal opportunity for a sound basic education is one that will equip students for their roles as citizens and enable them to succeed economically and personally." Majority op. at ¶¶ 3, 51, 87. Chief Justice Abraham-son's concurrence/dissent at ¶ 94.

¶51¶ 161. Constitutional principles must be rooted in constitutional text. Four members of the court maintain that the standard they embrace is rooted in art. X, § 3. They are mistaken. Article X, § 3 was part of the original constitution. The relevant text now reads:

The legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable; and such schools shall be free and without charge for tuition to all children between the ages of 4 and 20 years; and no sectarian instruction shall be allowed therein; but the legislature by law may, for the purpose of religious instruction outside the district schools, authorize the release of students during regular school hours.

¶52Our analysis must begin with the language of the constitution. Two phrases in art. X § 3 stand out: "district . schools" and "as nearly uniform as practicable."

¶53¶ 162. First, the text emphasizes the term "district schools" not "school districts." There is danger in assuming that these terms are synonymous. They are not. A 1972 amendment to art. X, § 3 authorizing the release of students for religious instruction repeated the term "district schools." The 1972 amendment altered the text of the original section, substituting "4" for "four" and "20" for "twenty," but it did not change the term "district schools."

¶54¶ 163. Section 3 uses the term "district schools" followed by the phrase "such schools" and the clause *666"no sectarian instruction shall be allowed therein," although religious instruction "outside the district schools" is permitted (emphasis added).

¶55¶ 164. By contrast, art. X, §§ 2 and 5 both employ the term "school district." These sections also were part of the original constitution. Article X, § 2 refers to "support and maintenance of common schools, in each school district." Article X, § 5 provides that no appropriation shall be made from the school fund to "any school district for the year in which a school shall not be maintained at least three months." The constitution is precise in avoiding state payments from the school fund to individual schools.

¶56¶ 165. A fair reading of these sections suggests that "school districts" are political entities, whereas "district schools" are literally schools. The legislature distributes state aid to the political entities — to the school districts. Consequently, it is troublesome to base a cause of action that school districts must be made uniform on a section of the constitution, art. X, § 3, that does not apply to them.

¶57¶ 166. It is even more unsettling to give Wisconsin students "a fundamental right to an equal opportunity for a sound basic education" and to ground that right in a section that makes no reference to individual rights, only to "district schools." The responsibility of this court in constitutional interpretation is to state the law, not make the law.

¶58¶ 167. Second, art. X, § 3 contains the phrase "as nearly uniform as practicable." The uniformity in the text is indisputably diluted by the adjacent phrases "as nearly" and "as practicable." "As nearly uniform as practicable" does not mean "equal." "As nearly uniform as practicable" is not as strong or uncompromising as the storied phrase "equal protection of the law." The *667words in the text suggest a goal; they do not impose a rule.

¶59¶ 168. Article X, § 3 may be compared to art. IV, § 23 of the Wisconsin Constitution, which addresses town government and provides in part: "The legislature shall establish but one system of town government, which shall be as nearly uniform as practicable" (emphasis added). Because this section closely parallels art. X, § 3, this court should look to the experience with town government for guidance in interpretation.1 This court has declared that the "uniformity requirement [in art. IV, § 23] has been consistently interpreted not to require absolute uniformity in the system of government, but only practical uniformity. . . .[T]he framers of the constitution recognized that some latitude had to be provided to enable the legislature to authorize departures from absolute uniformity." State ex rel. Wolf v. Town of Lisbon, 75 Wis. 2d 152, 162, 248 N.W.2d 450 (1977).

¶60*668I — I I — I

¶61¶ 169. Over the years, both the legislature and Wisconsin courts have interpreted the Education Article, including art. X, § 3. They have not required uniformity among school districts. The legislature has never required that school districts be equal or uniform in terms of population or enrollment or geographic area. School districts have been created in different ways, T.B. Scott Lumber Co. v. Oneida County, 72 Wis. 158, 161 (1888); Maxcy v. Oshkosh, 144 Wis. 238, 260, 128 N.W. 899 (1910), and they have not been uniform in their organization or reorganization. Joint Sch. Dist. v. State Appeal Board, 56 Wis. 2d 790, 794, 203 N.W.2d 1 (1973). The state authorizes common school districts, union high school districts, and unified school districts. Wis. Stat. §§ 120.001-120.44. These districts may serve different grades. Not all school districts have kindergarten for four-year-olds. Zweifel v. Joint Dist. No. 1., Belleville, 76 Wis. 2d 648, 251 N.W.2d 822 (1977). Compensation among the school districts is not uniform, and employee benefits are not uniform. In Busé v. Smith, 74 Wis. 2d 550, 568, 570, 247 N.W.2d 141 (1976), this court recognized the obvious fact that not all school districts have equal revenue raising power and held that art. X, § 3 did not require equalization of revenue raising power.

¶62¶ 170. Given the text of art. X, § 3, the immense diversity of school districts and district schools and the precedent of prior decisions about what art. X, § 3 does not mean, the court should have dismissed claims that the legislature has a constitutional obligation to equal*669ize educational opportunity among school districts in terms of dollars.2

¶63¶ 171. What the court has done instead is to embrace two conflicting theories of what the section requires: Equality of resources for school districts and special attention to special needs, beyond equality. In 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 in character.

¶64¶ 172. Until today, this court has had difficulty imposing uniformity on much of anything based upon the language of art. X, § 3. The court attempted to explain this section in State ex rel. Zilisch v. Auer, 197 Wis. 284, 289-90, 221 N.W. 860, (1928). In response to arguments about detachment from a school district, the court said:

An examination of the debates in the conventions that framed our present constitution and the constitution of 1846 (which contained a similar provision) discloses that the members of those conventions, *670when they were framing the article relating to schools, were concerned, not with the method of forming school districts, but with the character of instruction that should be given in those schools after the districts were formed, — with the training that these schools should give to the future citizens of Wisconsin.

Viewing the terms of this constitutional provision in the light of its express terms as well as of the purpose which actuated those who drafted it, we conclude that the requirement as to uniformity 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.3

¶65¶ 173. The court cited no authority for these passages. In fact, the language was inspired by the brief of respondent (Zilisch) who did not point to constitutional debates. Rather, counsel relied on a Wisconsin case, State ex rel. Dick v. Kalaher, 145 Wis. 243, 129 N.W. 1060 (1911), which defines a school: "School is a generic term, and denotes an institution for instruction or education" (citing American Asylum v. Phoenix Bank, 4 Conn. 172 (1822); 7 Words & Phrases, 6343). Then counsel argued:

It is this institution and not the district to which the constitutional provision applies. This is shown by the plain wording of the constitution which limits the requirement of uniformity to "schools" and merely prefixes the word "district" to denote the type of schools.

*671This plain and natural construction has been followed by the courts, under similar constitutional provisions. The decisions hold that such uniformity relates only to the character of the institution, called the school.

¶66Respondent's Brief at 64. Today, a new constitutional right is founded on the argument of counsel in a school detachment case almost three-quarters of a century ago.

¶67I — I H — I hH

¶68¶ 174. In the early years of statehood, the hiring and licensing of teachers was entirely a local matter. Wisconsin Blue Book, p. 432 (1999-2000). For a number of years, state support of public education consisted of money derived principally from the sale of public lands that the federal government had granted to the state. Id.In Chapter 287, Laws of 1885, the legislature levied a one-mill state property tax to be collected by the state and distributed to counties for school support. Id.The state's first attempt to equalize tax support for schools in property-poor districts was the Wisconsin Elementary Equalization Law of 1927 (Chapter 536).4Id.

¶69¶ 175. In 1995, the legislature appropriated more than $4 billion to provide 66.7 percent of the revenue for public K-12 schools in Wisconsin beginning in the 1996-97 school year. The money included general aid, delivered through a three-tier formula, *672categorical aid, and school levy credits. The increase over the 1995-96 school year was more than $950,000,000. School funding was increased 5.9 percent for the 1997-98 school year and 5 percent for the 1998-99 school year. Legislative Fiscal Bureau, 1997-98 Wisconsin State Budget, Comparative Summary of Budget Provisions, Public Instruction, at 862-63. These are the school finance plans under challenge.5

¶70¶ 176. This court on many occasions has observed that all legislative acts are presumptively constitutional. If doubts exist about a statute's constitutionality, we must resolve them in favor of the constitutionality of a statute. "Our task is not to judge the merits of the statute or the wisdom of the legislature. Our task is to determine whether the statute clearly contravenes some constitutional provision." Busé, 74 Wis. 2d at 583 (Abrahamson, J., Day, J., and Heffernan, J. dissenting).

¶71¶ 177. We do not hide from the deficiencies that exist in this state's system of public education. We are not insensitive to the fact that fiscal resources are not equal. We might even have salutary proposals for improvements. But it is not the role of the supreme court to shape education policy or provide revenues. *673This vital responsibility is reserved to the executive and the legislative branches. The judiciary's task is to determine whether the acts or omissions of other branches clearly contravene some constitutional provision. In my view, they do not.

¶72¶ 178. I join the majority opinion in affirming the court of appeals and in holding the present school finance system constitutional. In other respects, I dissent.

¶73¶ Í79. I am authorized to state that Justice DIANE S. SYKES joins this concurring/dissenting opinion.