State ex rel. Vanko v. Kahl, 190
| Citation | 52 Wis.2d 206,188 N.W.2d 460 |
| Decision Date | 29 June 1971 |
| Docket Number | No. 190,190 |
| Parties | STATE ex rel. Peter VANKO et al., Petitioners, v. William C. KAHL, State Supt. of Public Instruction, et al., Respondents. State |
| Court | United States State Supreme Court of Wisconsin |
Individual petitioners are the parents and natural guardians of children attending the elementary schools in Racine county operated by the corporate petitioners. Corporate petitioners are churches, each being a separate corporation (except that Concordia Lutheran school is an association affiliated with three Massouri Synod Lutheran churches, to wit: Holy Cross Lutheran church, Grace Lutheran church, and Faith Lutheran church). Each corporate petitioner operates as part of its corporate structure an elementary school located within the boundaries of the Unified School District No. 1 of Racine county. Each corporate petitioner is affiliated with either the Roman Catholic church or the Missouri Synod Lutheran church.
Respondent William C. Kahl is the state superintendent of public instruction of the state of Wisconsin, the state official responsible for the administration of the school laws of the state of Wisconsin. Respondent Unified School District No. 1 of Racine county is a municipal body corporate created by law to govern the public school district, vested with the powers and responsibilities statutorily delegated to operate the public school system within the boundaries of such district.
The transportation of school children to and from school is governed by ch. 121, Stats., subchapter II. Portions of said subchapter relevant to this action are secs. 121.51(4) and 121.54(2)(b) 1, Stats., as enacted and amended by the Laws of 1969, providing:
The respondent school district set proposed 'criteria' for attendance areas that it would approve. These were: (1) No attendance area of a religious denominational school could overlap the attendance area of another school affiliated with the same denomination; (2) no attendance area could contain 'islands;' (3) each attendance area must be compact, consisting of contiguous territory with boundaries; and (4) each private school to which pupils are to be bussed must be located 'within the physical boundaries of its attendance area.' (With the exception of two Wisconsin Synod Lutheran schools, St. John's in Caledonia and Trinity Lutheran in Caledonia, none of the private schools have requested the state superintendent to act pursuant to sec. 121.51(4), Stats.)
The respondent school district has approximately 32,000 pupils. It operates nineteen grade schools, four junior high schools, and three senior high schools. As of March 17, 1971, the school district was transporting 5,759 junior and senior high school students, 4,769 elementary school pupils, and 2,583 private school students. Its total budget for the fiscal year 1971 is approximately $26,000,000, exclusive of federal government grants. Of this amount, $1,000,000 is budgeted for the transportation of students. The number of children bussed by the school district to private schools affiliated with the same religious denomination is 1,379. The number of children not being bussed to such schools because they do not reside within the attendance area of the private school they attend is 576. Each of the individual petitioners is the parent or natural guardian of a child who is attending but not being transported to one of the petitioning private schools who would be transported except that such child lives outside the attendance area established for the school he attends.
Foley & Capwell, Racine, for petitioners.
Robert W. Warren, Atty. Gen., John William Calhoun, Asst. Atty. Gen., Madison, for William C. Kahl.
La France, Thompson, Evans, Dye, Hostak & Clack, Racine, for school board.
This action for declaratory judgment is an attack upon the constitutionality of the 1969 amendment to the school transportation statute providing for the transportation at public expense of students to and from private schools--on an attendance area basis.
The attendance area concept is no newcomer to the educational scene in Wisconsin.* Long before transportation to schools, public or private, was provided at public expense, the approach of area-based public school districts was the rule. One of the statutory responsibilities of local public school boards involved the often troublesome and frequently controversial assignment of establishing school attendance district lines and boundaries. Exceptions were made by reason of overcrowding of particular schools or individual or special situations, but proximity was the measuring stick used. While parents and school administrators often disagreed as to what the attendance area boundaries ought to be, there was acceptance of the general neighborhood school approach that sought to assign pupils to the nearest available public school. Before bussing at public expense came along, cold winters alone made eminently reasonable minimizing the time and distance involved in walking to and from school, elementary or high school.
The coming of the automobile, the merger of school districts, expanded parental expectations, greater concern for health and safety of school children, and other factors combined to bring about an expansion of home-to-school and back again bussing at public expense of public school pupils. Additionally, there came the development of specialized schools, such as those in Milwaukee for educational development of physically handicapped and retarded children, with special arrangements made for transporting such chilcren with special problems to specialized schools. But the concept of an attendance areabased public school system continued, with exceptions made for reasons established and accepted as reasonable.
When the United States Supreme Court upheld as constitutional a New Jersey statute allowing reimbursement to parents for expenses incurred in bussing their children to private and parochial schools, 1 the way was cleared for providing similar transportation at public expense to children attending private schools. A state level constitutional roadblock in this state to providing public financed transportation to nonpublic school children 2 was removed when the people of Wisconsin amended their constitution to provide:
It then being clear that neither the state nor federal constitution prohibited the state from 'providing for the safety and welfare of children' by providing for the transportation of children to and from public and private schools, the legislature amended the existing statutes for public school transportation to provide transportation of children to parochial and private schools. 3 Transportation was to be furnished on a reasonably uniform basis to children attending either public or private schools. 4 In 1969 the legislature amended the schools transportation statutes to add two sections that are challenged by this action. 5
Basically, the 1969 amendment provided that district school boards 'shall provide transportation to and from the school the attends' for elementary and high school students in private schools 'located 2 miles or more from his residence, if such private school is a school within whose attendance area the pupil resides' (Emphasis supplied.) and if the private school is within the school district or not more than 5 miles beyond the district boundaries. 6
Generally defining the term 'attendance area,' the 1969 amendment provided: "Attendance Area' is the geographic area designated by the governing body of a private school as the area from which is pupils attend and approved by the school board of the district in which the private school is located.' 7
Anticipating the type of problems encountered in determining attendance, area boundaries in public school systems, the legislature provided: 'If the private school and the school board cannot agree on the attendance area, the state superintendent shall, upon request of the private school and the board, make a final determination of the attendance area.' 8
Then was added this sentence: 'The attendance areas of private schools affiliated with the same religious denomination shall not overlap.' 9
Petitioners read this reference to schools affiliated with the same religious denomination as providing that, only as to religiously-affiliated schools, is there any provision against overlapping. The suggested construction of the statute is that is authorizes overlapping of attendance areas established for...
To continue reading
Request your trial
-
St. Augustine Sch. v. Taylor
...the transportation benefit in a single attendance area. ¶30 This court first addressed this language in 1971 in State ex rel. Vanko v. Kahl, 52 Wis. 2d 206, 188 N.W.2d 460 (1971). In Vanko , the court addressed a constitutional challenge to the attendance area statute.¶31 The court acknowl......
-
St. Augustine Sch. v. Evers
...private schools "affiliated or operated by a single sponsoring group , whether ... secular or religious." State ex rel. Vanko v. Kahl , 52 Wis.2d 206, 215, 188 N.W.2d 460 (1971) (emphasis added). According to that court, the statute’s reference to denominational affiliation is not meant to ......
-
Hahner v. Board of Ed.
...and from any parochial or private school or institution of learning."12 40 Wis.2d 494, 505, 162 N.W.2d 5, 10-11 (1968).13 52 Wis.2d 206, 212, 188 N.W.2d 460 (1971).14 74 Wis.2d 144, 150, 246 N.W.2d 230 (1976).15 43 Wis.2d 58, 66, 168 N.W.2d 295, 298-299 (1969).16 These statutory words "to i......
-
St. Augustine Sch. v. Evers
...plaintiffs' state-law claim. For this reason, I will begin by discussing the relevant state cases, which are State ex rel. Vanko v. Kahl , 52 Wis. 2d 206, 188 N.W.2d 460 (1971) and Holy Trinity Community School, Inc. v. Kahl , 82 Wis. 2d 139, 262 N.W.2d 210 (1978) .In Vanko , several ind......