Davis v. Grover, 90-1807

• Decision Date: 03 March 1992
• Docket Number: No. 90-1807,90-1807
• Citation: 480 N.W.2d 460,166 Wis.2d 501
• Parties: , 72 Ed. Law Rep. 1055 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; Highland 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 & Supervisors Council, Inc., and Wisconsin Federation of Teachers, Intervenors - Petitioners - Appellants - Cross - Petitioners, d v. Charles P. SMITH, State Treasurer and Board of School Directors of the City of Milwaukee, Cross-Claimant-Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 460

480 N.W.2d 460 166 Wis.2d 501, 72 Ed. Law Rep. 1055 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; Highland 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 & Supervisors Council, Inc., and Wisconsin
Federation of Teachers, Intervenors - Petitioners -
Appellants - Cross - Petitioners, ^d
v.
Charles P. SMITH, State Treasurer and Board of School
Directors of the City of Milwaukee,
Cross-Claimant-Defendant-Respondent. No. 90-1807. Supreme Court of Wisconsin. Argued Oct. 4, 1991.
Decided March 3, 1992.

Page 461

[166 Wis.2d 510] 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.

Page 462

For the defendant-cross-claimant-defendant-respondent-petitioner the cause was argued by Warren D. Weinstein, Asst. Atty. Gen., with whom on the briefs was, James E. Doyle, Atty. Gen.

For the intervenors-petitioners-appellants-cross petitioners 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 Educ. Ass'n 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 Ass'n of School Boards, Inc.

[166 Wis.2d 511] 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, Sp. Deputy City Atty., and Grant F. Langley, City Atty., Milwaukee.

CALLOW, Justice.

This is a review under sec. (Rule) 809.62, Stats., of a decision of the court of appeals, Davis v. Grover, 159 Wis.2d 150, 464 N.W.2d 220 (Ct.App.1990). The court of appeals reversed the decision of the Dane county circuit court, Judge Susan R. Steingass, and found that the Milwaukee Parental Choice Program (MPCP) violated art. IV, sec. 18 of the Wisconsin Constitution. ¹ The MPCP is a publicly funded program that permits selected children from low-income families to attend nonsectarian private schools at no cost to the student.

[166 Wis.2d 512] The scope of our inquiry is strictly confined to the specific issues raised on this review. We pass no judgment on the wisdom or desirability of the MPCP. The propriety of the program is most appropriately addressed by the legislature, not the judiciary.

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. ² Logically, the best location [166 Wis.2d 513] to test

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the program is in a city such as Milwaukee where the socio-economic disparities and educational problems are particularly great and the potential private educational choices are most abundant.

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[166 Wis.2d 514] allocated to schools throughout the state of Wisconsin.

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:

(1) the family income does not exceed 175% of the poverty level;

(2) the pupil was enrolled in a public school in the city, was attending a private school under this program, or was not enrolled in school the previous year;

(3) the private school notifies the State Superintendent of its intent to participate in the program by June 30 of the previous school year;

(4) the private school complies with 42 U.S.C. sec. 2000d; ³ and

(5) the private school meets all health and safety laws or codes that apply to public schools.

Section 119.23(2)(a), Stats. Additionally, private schools participating in the program must meet defined performance criteria ⁴ and submit to financial and performance [166 Wis.2d 515] audits by the state. ⁵ For each participating student, approximately $2,500 in state educational funding is diverted from the Milwaukee Public Schools (MPS) to the participating private school.

The legislature placed significant limitations on the scope of the program. The

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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 [166 Wis.2d 516] involvement under the program as compared to the public school system in general. Section 119.23(5)(d), Stats.

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...