William J. Vincent and Judy S. Vincent v. Jack C. Voight
Annotate this Case
Download PDF
2000 WI 93 SUPREME COURT OF WISCONSIN Case No.: 97-3174 Complete Title of Case: William J. Vincent and Judy S. Vincent, individually and as parents of Tonya M. Vincent, Carol Bartlein, individually and as parent of Kurt Bartlein, Sara Bartlein and Kimberly Bartlein, Pam Britten, individually and as parent of Travis Britten, Cortney Britten and Taylor Britten, Karen Drazkowski, individually and as parent of Steve Drazkowski and Ann Drazkowski, Michael Endress and Susan Endress, individually and as parents of Jill Endress and Megan Endress, Michael J. Fairchild and Juliana Schmidt, individually and as parents of Kara B. Fairchild and Alexander R. Fairchild, Charles Hetfield, individually and as parent of Angela Hetfield, Rebecca Hetfield and Brock Hetfield, John Keller and Kathleen Keller, individually and as parents of Courtney K. Keller, Lynn Klatt, individually and as parent of Leslie Klatt and Ross Klatt and as foster parent of Blade Corrente, William Loasching, individually and as parent of Kelly Loasching, Kari Loasching, Kirt Loasching and Katie Loasching, Margaret McGinnity and Thomas McGinnity, individually and as parents of Ann McGinnity, Kate McGinnity, Megan McGinnity, and Betsy McGinnity, Joyce A. Olson, individually and as parent of Casey Brouhard and Robert Brouhard, Denise Callaway Reistad and Gary Reistad, Individually and as parents of George Reistad, Kelsey Reistad and Sonja Reistad, Mary Rochon-Jewert, individually and as parent of Keith Jewert and Candyl Jewert, Pao Vang, individually and as parent of Phong Vang, Lee Vang, Mary Vang, See Vang, Toua Vang, Sheng Vang, Lue Vang, Xay Vang and Jenny Vang, Gloria Wahl, individually and as parent of Jordan Woods-Wahl, Ronald J. Walsh, individually and as parent of Ryan J. Walsh and Laura M. Walsh; and, Jacqueline Ward, individually and as parent of Jessica Justiniano and Tatiana Justiniano, Tonya M. Vincent, Kurt Bartlein, Sara Bartlein, Kimberly Bartlein, Travis Britten, Cortney Britten, Taylor Britten, Steve Drazkowski, Ann Drazkowski, Jill Endress, Megan Endress, Kara B. Fairchild, Alexander R. Fairchild, Angela Hetfield, Rebecca Hetfield, Brock Hetfield, Courtney K. Keller, Leslie Klatt, Ross Klatt, Blade Corrente, Kelly Loasching, Kari Loasching, Kirt Loasching, Katie Loasching, Ann McGinnity, Kate McGinnity, Megan McGinnity, Betsy McGinnity, Casey Brouhard, Robert Brouhard, George Reistad, Kelsey Reistad, Sonja Reistad, Keith Jewert, Candyl Jewert, Phong Vang, Lee Vang, Mary Vang, See Vang, Toua Vang, Sheng Vang, Lue Vang, Xay Vang, Jenny Vang, Jordan Woods-Wahl, Ryan Walsh, Laura M. Walsh, Jessica Justiniano and Tatiana Justiniano, minors, on behalf of themselves and all other public school students and prospective students in the State of Wisconsin similarly situated; and, Mary Bills, Douglas Haselow, Ray Heinzen, Mary Lohmeier, David Smette and Jerome A. Sommer, on behalf of themselves and all other property taxpayers in the State of Wisconsin similarly situated; and Ray Heinzen, Mary Lohmeier and Roland Rockwell, on behalf of themselves and all Other citizens of the State of Wisconsin Similarly situated; and, School District of Abbotsford and its School Board, School District of Algoma and its School Board, School District of Alma and its School Board, School District of Alma Center-Humbird Merrillan and its School Board, School District of Ashland and its School Board, School District of Augusta and its School Board, Baldwin-Woodville Area School District and its School Board, Barron Area School District and its School Board, School District of Bayfield and its School Board, School District of Beecher-Dunbar-Pembine and its School Board, School District of Beloit and its School Board, School District of Benton and its School Board, Berlin Area School District and its School Board, School District of Black Hawk and its School Board, School District of Black River Falls and its School Board, School District of Bloomer and its School Board, Boyceville Community School District and its School Board, School District of Cadott Community and its School Board, School District of Cameron and its School Board, School District of Cashton and its School Board, School District of Chetek and its School Board, Clayton School District and its School Board, School District of Clear Lake and its School Board, Clintonville Public School District and its School Board, Cochrane-Fountain City Community School District and its School Board, School District of Colfax and its School Board, School District of Cornell and its School Board, School District of Cuba City and its School Board, School District of Denmark and its School Board, Desoto Area School District and its School Board, Dodgeland School District and its School Board, Dodgeville School District and its School Board, School District of Durand and its School Board, Elk Mound Area School District and its School Board, School District of Elmwood and its School Board, School District of Fall Creek and its School Board, Frederic School District and its School Board, School District of the City of Galesville, Villages of Ettrick and Trempealeau, Towns of Caledonia, Dodge, Ettrick, Gale and Trempealeau in Trempealeau County and the Town of North Bend in Jackson County and its School Board, School District of Gilmanton and its School Board, School District of Grantsburg and its School Board, School District of Greenwood and its School Board, School District of Holmen and its School Board, School District of Horicon and its School Board, School District of Howard-Suamico and its School Board, Kewaunee School District and its School Board, Kickapoo Area School District and its School Board, School District of La Crosse and its School Board, School District of Lake Holcombe and its School Board, School District of Laona and its School Board, Lena Public School District and its School Board, School District of Luck and its School Board, Manitowoc Public School District and its School Board, School District of Marion and its School Board, School District of Mayville and its School Board, Medford Area Public School District and its School Board, School District of the Menomonie Area and its School Board, Milwaukee Public Schools and the Board of School Directors of the City of Milwaukee, Mineral Point Unified School District and its School Board, School District of Mondovi and its School Board, School District of Mosinee and its School Board, Necedah Area School District and its School Board, School District of New Richmond and its School Board, North Crawford School District and its School Board, Oconto Falls School District and its School Board, Oconto Unified School District and its School Board, Osseo-Fairchild School District and its School Board, School District of Owen-Withee and its School Board, Pepin Area School District and its School Board, School District of Phillips and its School Board, School District of Poynette and its School Board, Prairie Farm Public School District and its School Board, Pulaski Community School District and its School Board, Racine Unified School District and its School Board, Reedsville School District and its School Board, School District of Rib Lake and its School Board, Rice Lake Area School District and its School Board, Riverdale School District and its School Board, River Ridge School District and its School Board, Saint Croix Central School District and its School Board, School District of Seneca and its School Board, Seymour Community School District and its School Board, School District of Shell Lake and its School Board, School District of Siren and its School Board, School District of Somerset and its School Board, Southwestern Wisconsin Community School District and its School Board, School District of Spring Valley and its School Board, School District of Stratford and its School Board, School District of Superior and its School Board, School District of Thorp and its School Board, School District of Tigerton and its School Board, Tomah Area School District and its School Board, Valders Area School District and its School Board, Viroqua Area School District and its School Board, School District of Wabeno Area and its School Board, School District of Washburn and its School Board, School District of Waupun and its School Board, Joint School District, Villages of Wauzeka and Steuben, Towns of Wauzeka, Bridgeport, Eastman, Haney, Marietta and Prairie du Chien and its School Board, School District of West Salem and its School Board, School District of Weston and its School Board, Weyerhauser Area School District and its School Board, School District of Winter and its School Board, School District of Wonewoc and Union Center and its School Board, and Mary Bills, Pam Britten, and Lynn Klatt, on behalf of themselves and all other school board members in the State of Wisconsin similarly situated, Plaintiffs-Co-Appellants-Petitioners, Terrance Craney, Guy Costello, Regina Washinawatok, Jeffrey Erhardt, Kathleen Hildebrandt, Randy Kuivinen, William Nelson, Douglass Thomas, and Wisconsin Education Association Council, Intervening Plaintiffs-AppellantsPetitioners, v. Jack C. Voight, in his official capacity as State of Wisconsin Treasurer, John T. Benson, in his official capacity as State of Wisconsin Superintendent of Public Instruction, Wisconsin Department of Public Instruction, Cate Zeuske, in her official capacity as Secretary of the Wisconsin Department of Revenue, and Wisconsin Department of Revenue, Defendants-Respondents. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 223 Wis.2d 799, 589 N.W.2d 455 (Ct. App. 1999 Unpublished) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Concur & Dissent: July 11, 2000 February 8, 2000 Circuit Dane Richard J. Callaway WILCOX, J., concurs (opinion filed). ABRAHAMSON, C.J. concurs in part, dissents in part (opinion filed). BABLITCH and BRADLEY, J.J., join concur/dissent. BABLITCH, J., concurs in part, dissents in part (opinion filed). PROSSER, J., concurs in part, dissents in part (opinion filed). SYKES, J., joins concur/dissent. SYKES, J., concurs in part/dissents in part (opinion filed). PROSSER, J., joins concur/dissent. Dissented: Not Participating: ATTORNEYS: For the intervening plaintiffs-appellants- petitioners there were briefs by Bruce Meredith, Chris Galinat and Wisconsin Education Association Council, Madison, and Robert H. Friebert and Friebert, Finerty & St. John, SC, Milwaukee, and oral argument by Bruce Meredith. For the plaintiffs-co-appellants-petitioners there were briefs by David J. Hase, Heidi L. Vogt and Cook & Franke, S.C., Milwaukee, and oral argument by David J. Hase. For the defendants-respondents the cause was argued by Peter C. Anderson, assistant attorney general, with whom on the brief was James E. Doyle, attorney general, and Bruce A. Olsen, assistant attorney general. Amicus Curiae brief by Patricia A. Brannan, Alethia Nancoo and Hogan & Hartson, L.L.P., Washington, D.C., on behalf of The Council of the Great City Schools. Amicus Curiae brief by Gary E. Sherman on behalf of State Representatives Gary E. Sherman, Dan Schooff, John H. Ainsworth, Tom Sykora, Shirley I. Krug, Marlin D. Schneider, Peter E. Bock, Robert L. Turner, Julie M. Lassa, Mary Hubler, G. Spencer Coggs, Pedro A. Colon, Barbara Gronemus, Donald W. Hasenohrl, John W. Lehman, Mark Miller, Joe Plouff, Jon Richards, Marty Reynolds, Christine Sinicki and State Senators Brian D. Rude, Brian B. Burke, Gwendolynne S. Moore, Kimberly M. Plache. Amicus Curiae brief by Raymond P. Taffora, Jordan J. Hemaidan, Karla M. Davis and Michael, Best & Friedrich LLP, Madison, on behalf of Fair Aid Coalition. Amicus Curiae brief by Lawrence A. Wiley on behalf of Governor Tommy G. Thompson. Amicus Curiae brief by James D. Peterson, Brady C. Williamson and LaFollette Sinykin, LLP, Madison, on behalf of Institute for Wisconsin s Future, Inc., Wisconsin Coalition for Advocacy, Inc., and Wisconsin Parent Teachers Association. Amicus Curiae brief by Peter M. Koneazny on behalf of American Civil Liberties Union of Wisconsin, Inc. Amicus Curiae brief by James D. Peterson, Brady C. Williamson and LaFollette Sinykin, LLP, Madison, on behalf of City of Milwaukee Mayor John Norquist. 2000 WI 93 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 97-3174 STATE OF WISCONSIN : William J. Vincent and Judy S. Vincent, individually and as parents of Tonya M. Vincent, Carol Bartlein, individually and as parent of Kurt Bartlein, Sara Bartlein and Kimberly Bartlein, Pam Britten, individually and as parent of Travis Britten, Cortney Britten and Taylor Britten, Karen Drazkowski, individually and as parent of Steve Drazkowski and Ann Drazkowski, Michael Endress and Susan Endress, individually and as parents of Jill Endress and Megan Endress, Michael J. Fairchild and Juliana Schmidt, individually and as parents of Kara B. Fairchild and Alexander R. Fairchild, Charles Hetfield, individually and as parent of Angela Hetfield, Rebecca Hetfield and Brock Hetfield, John Keller and Kathleen Keller, individually and as parents of Courtney K. Keller, Lynn Klatt, individually and as parent of Leslie Klatt and Ross Klatt and as foster parent of Blade Corrente, William Loasching, individually and as parent of Kelly Loasching, Kari Loasching, Kirt Loasching and Katie Loasching, Margaret McGinnity and Thomas McGinnity, individually and as parents of Ann McGinnity, Kate McGinnity, Megan McGinnity, and Betsy McGinnity, Joyce A. Olson, individually and as parent of Casey Brouhard and Robert Brouhard, Denise Callaway Reistad and Gary Reistad, individually and as parents of George Reistad, Kelsey Reistad and Sonja Reistad, Mary Rochon-Jewert, individually and as parent of Keith Jewert and Candyl Jewert, Pao Vang, individually and as IN SUPREME COURT FILED JUL 11, 2000 Cornelia G. Clark Clerk of Supreme Court Madison, WI No. parent of Phong Vang, Lee Vang, Mary Vang, See Vang, Toua Vang, Sheng Vang, Lue Vang, Xay Vang and Jenny Vang, Gloria Wahl, individually and as parent of Jordan Woods-Wahl, Ronald J. Walsh, individually and as parent of Ryan J. Walsh and Laura M. Walsh; and, Jacqueline Ward, individually and as parent of Jessica Justiniano and Tatiana Justiniano, Tonya M. Vincent, Kurt Bartlein, Sara Bartlein, Kimberly Bartlein, Travis Britten, Cortney Britten, Taylor Britten, Steve Drazkowski, Ann Drazkowski, Jill Endress, Megan Endress, Kara B. Fairchild, Alexander R. Fairchild, Angela Hetfield, Rebecca Hetfield, Brock Hetfield, Courtney K. Keller, Leslie Klatt, Ross Klatt, Blade Corrente, Kelly Loasching, Kari Loasching, Kirt Loasching, Katie Loasching, Ann McGinnity, Kate McGinnity, Megan McGinnity, Betsy McGinnity, Casey Brouhard, Robert Brouhard, George Reistad, Kelsey Reistad, Sonja Reistad, Keith Jewert, Candyl Jewert, Phong Vang, Lee Vang, Mary Vang, See Vang, Toua Vang, Sheng Vang, Lue Vang, Xay Vang, Jenny Vang, Jordan Woods-Wahl, Ryan J. Walsh, Laura M. Walsh, Jessica Justiniano and Tatiana Justiniano, minors, on behalf of themselves and all other public school students and prospective students in the State of Wisconsin similarly situated; and, Mary Bills, Douglas Haselow, Ray Heinzen, Mary Lohmeier, David Smette and Jerome A. Sommer, on behalf of themselves and all other property taxpayers in the State of Wisconsin similarly situated; and Ray Heinzen, Mary Lohmeier and Roland Rockwell, on behalf of themselves and all other citizens of the State of Wisconsin similarly situated; and, School District of Abbotsford and its School Board, School District of Algoma and its School Board, School District of Alma and its 2 97-3174 No. School Board, School District of Alma Center-Humbird Merrillan and its School Board, School District of Ashland and its School Board, School District of Augusta and its School Board, Baldwin-Woodville Area School District and its School Board, Barron Area School District and its School Board, School District of Bayfield and its School Board, School District of Beecher-Dunbar-Pembine and its School Board, School District of Beloit and its School Board, School District of Benton and its School Board, Berlin Area School District and its School Board, School District of Black Hawk and its School Board, School District of Black River Falls and its School Board, School District of Bloomer and its School Board, Boyceville Community School District and its School Board, School District of Cadott Community and its School Board, School District of Cameron and its School Board, School District of Cashton and its School Board, School District of Chetek and its School Board, Clayton School District and its School Board, School District of Clear Lake and its School Board, Clintonville Public School District and its School Board, Cochrane-Fountain City Community School District and its School Board, School District of Colfax and its School Board, School District of Cornell and its School Board, School District of Cuba City and its School Board, School District of Denmark and its School Board, Desoto Area School District and its School Board, Dodgeland School District and its School Board, Dodgeville School District and its School Board, School District of Durand and its School Board, Elk Mound Area School District and its School Board, School District of Elmwood and its School Board, School District of Fall Creek and its School Board, Frederic School District and its School Board, School District of the City of Galesville, Villages of Ettrick and 3 97-3174 No. Trempealeau, Towns of Caledonia, Dodge, Ettrick, Gale and Trempealeau in Trempealeau County and the Town of North Bend in Jackson County and its School Board, School District of Gilmanton and its School Board, School District of Grantsburg and its School Board, School District of Greenwood and its School Board, School District of Holmen and its School Board, School District of Horicon and its School Board, School District of Howard-Suamico and its School Board, Kewaunee School District and its School Board, Kickapoo Area School District and its School Board, School District of La Crosse and its School Board, School District of Lake Holcombe and its School Board, School District of Laona and its School Board, Lena Public School District and its School Board, School District of Luck and its School Board, Manitowoc Public School District and its School Board, School District of Marion and its School Board, School District of Mayville and its School Board, Medford Area Public School District and its School Board, School District of the Menomonie Area and its School Board, Milwaukee Public Schools and the Board of School Directors of the City of Milwaukee, Mineral Point Unified School District and its School Board, School District of Mondovi and its School Board, School District of Mosinee and its School Board, Necedah Area School District and its School Board, School District of New Richmond and its School Board, North Crawford School District and its School Board, Oconto Falls School District and its School Board, Oconto Unified School District and its School Board, Osseo-Fairchild School District and its School Board, School District of Owen-Withee and its School Board, Pepin Area School District and its School Board, School District of Phillips and its School Board, School District of Poynette and its School Board, Prairie Farm Public School District and its 4 97-3174 No. School Board, Pulaski Community School District and its School Board, Racine Unified School District and its School Board, Reedsville School District and its School Board, School District of Rib Lake and its School Board, Rice Lake Area School District and its School Board, Riverdale School District and its School Board, River Ridge School District and its School Board, Saint Croix Central School District and its School Board, School District of Seneca and its School Board, Seymour Community School District and its School Board, School District of Shell Lake and its School Board, School District of Siren and its School Board, School District of Somerset and its School Board, Southwestern Wisconsin Community School District and its School Board, School District of Spring Valley and its School Board, School District of Stratford and its School Board, School District of Superior and its School Board, School District of Thorp and its School Board, School District of Tigerton and its School Board, Tomah Area School District and its School Board, Valders Area School District and its School Board, Viroqua Area School District and its School Board, School District of Wabeno Area and its School Board, School District of Washburn and its School Board, School District of Waupun and its School Board, Joint School District, Villages of Wauzeka and Steuben, Towns of Wauzeka, Bridgeport, Eastman, Haney, Marietta and Prairie du Chien and its School Board, School District of West Salem and its School Board, School District of Weston and its School Board, Weyerhauser Area School District and its School Board, School District of Winter and its School Board, School District of Wonewoc and Union Center and its School Board, and Mary Bills, Pam Britten, and Lynn Klatt, on behalf of themselves and all other school board members in the State of Wisconsin similarly situated, 5 97-3174 No. 97-3174 Plaintiffs-Co-AppellantsPetitioners, Terrance Craney, Guy Costello, Regina Washinawatok, Jeffrey Erhardt, Kathleen Hildebrandt, Randy Kuivinen, William Nelson, Douglass Thomas, and Wisconsin Education Association Council, Intervening PlaintiffsAppellants-Petitioners, v. Jack C. Voight, in his official capacity as State of Wisconsin Treasurer, John T. Benson, in his official capacity as State of Wisconsin Superintendent of Public Instruction, Wisconsin Department of Public Instruction, Cate Zeuske, in her official capacity as Secretary of the Wisconsin Department of Revenue, and Wisconsin Department of Revenue, Defendants-Respondents. REVIEW of a decision of the Court of Appeals. ¶1 are N. PATRICK CROOKS, J. various Wisconsin students, Affirmed. The Petitioners in this case parents, teachers, school districts, school board members, citizens, and the president of the Wisconsin Education Association Council (WEAC).1 1 The We remember Ralph Waldo Emerson's words to the Harvard graduating class of 1837: [T]here is a portion of reading quite indispensible to a wise man [or woman]. History and exact science he [or she] must learn by laborious reading. Colleges [and public schools], in like manner, have their 6 No. 97-3174 Petitioners collectively challenge the constitutionality of the state school finance system under Wis. Stat. ch. 121 and Wis. Stat. §§ 79.10 and 79.14. review: 1) whether Two main issues are presented for our the state school finance system is unconstitutional under Wis. Const. art. X, § 3the uniformity clause of the education article; and 2) whether the state school finance system is unconstitutional under Wis. Const. art. I, § 1the Equal Protection Clause. The Petitioners contend that the school finance system violates both art. X, § 3 and art. I, § 1 because it fails to equalize access to financial resources among school districts. ¶2 upheld In the an unpublished constitutionality decision, of the the school court of appeals finance system. Vincent v. Voight, No. 97-3174, unpublished slip op. (Ct. App. Dec. 23, 1998). The court determined that the current school finance system is not materially different from the system that indispensable officeto teach elements. But they can only highly serve us when they aim not to drill, but to create; when they gather from far every ray of various genius to their hospitable halls, and by the concentrated fires, set the hearts of their youth on flame. Thought and knowledge are natures in which apparatus and pretension avail nothing. Gowns and pecuniary foundations, though of towns of gold, can never countervail the least sentence or syllable of wit. Forget this, and our American colleges [and public schools] will recede in their public importance, whilst they grow richer every year. Ralph Waldo Emerson, "The American Scholar" in Ralph Waldo Emerson: Essays and Journals, 1837, at 37 (Lewis Mumford ed., 1968) (words added in brackets). 7 No. 97-3174 this court upheld as constitutional in Kukor v. Grover, 148 Wis. 2d 469, 436 N.W.2d 568 (1989).2 Slip op. at 6. We agree that the Petitioners have not proved beyond a reasonable doubt that the current state school finance system violates either art. X, 2 We hold that this case presents a justiciable issue. In Baker v. Carr, 369 U.S. 186, 211 (1962), the United States Supreme Court stated that a court must decide on a case-by-case inquiry whether a so-called political issue is justiciable, and "[d]eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation . . . ." This court on numerous occasions has interpreted the state constitution to find that assessing the constitutionality of the state school finance system is within its province. See, e.g., Kukor v. Grover, 148 Wis. 2d 469, 436 N.W.2d 568 (1989); Busé v. Smith, 74 Wis. 2d 550, 247 N.W.2d 141 (1976); State ex rel. Zilisch v. Auer, 197 Wis. 284, 221 N.W. 860 (1928). In Kukor the court of appeals specifically certified the issue of whether the judiciary has the power to declare the system of financing unconstitutional, after the circuit court found that "'[w]hether a higher degree of uniformity is now 'practicable' is for the Legislature to decide . . . . The battle over scarce tax dollars for education is a political one . . . . The Legislature is where the framers of the constitution intended these decisions to be made.'" Kukor, 148 Wis. 2d at 483 n.8. This court clearly concluded that it does have that power by proceeding to examine the constitutionality of the school finance system. Moreover, in Busé, 74 Wis. 2d at 581, we held a portion of the school finance system unconstitutional. There we specifically stated, "to hold that the legislature is constitutionally mandated to provide an equal opportunity for education . . . is not necessarily to validate as constitutional any means chosen by the legislature to achieve that end." Id. at 567. We are satisfied that the issues presented to us in this case are appropriate for decision by this court in the exercise of our constitutional role. This is an area where all three of the co-equal branches of state government share power and authority consistent with the Wisconsin Constitution. It is indeed "a delicate exercise in constitutional interpretation." 8 No. 97-3174 § 3 or art. I, § 1 of the Wisconsin Constitution. The present school finance system more effectively equalizes the tax base among districts than the system in place at the time Kukor was decided. ¶3 We further hold to an that equal Wisconsin opportunity students for a have sound a fundamental right 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. The legislature has articulated a standard for equal opportunity for a sound basic 121.02(L) education (1997-98) proficient in as in the mathematics, Wis. Stat. opportunity science, §§ 118.30(lg)(a) for students reading and and to be 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.3 An equal opportunity for a sound basic education acknowledges that students and districts are not fungible and takes into account districts with disproportionate numbers of disabled students, economically disadvantaged students, and students with limited English language skills. So long as the legislature is providing sufficient resources so that school districts offer students the equal opportunity for a sound basic education as required by the constitution, the state school finance system will pass constitutional muster. 3 See Wis. Stat. §§ 118.30(1g)(a) and 121.02(L) (1997-98). 9 No. 97-3174 I A. The Wisconsin School Finance System ¶4 We begin by applicable to Constitution outlining school finance. establishes the the constitutional Article state X public of provisions the school Wisconsin system4 and provides that the school districts "shall be as nearly uniform as practicable . . . ." Wis. Const. art. X, § 3. The constitution also creates a school fund for the "support and maintenance" of schools and libraries. Wis. Const. art. X, § 2. Article X, § 4 allows for the imposition of a local tax on the school districts. It states that the sum to be raised locally must be "not less than one-half the amount received by such town or city respectively for school purposes from the income of the school fund." Wis. Const. art. X, § 4. Section 5 provides for the distribution of the income from the school fund "in some just proportion to the number of children and youth resident therein between the ages of four and twenty years." Wis. Const. art. X, § 5. ¶5 From these constitutional provisions, the legislature has developed an elaborate state school finance formula.5 One 4 The constitution refers to "common schools," "normal schools," and "district schools," instead of "public schools," which is the general terminology used today. Wis. Const. art. X, §§ 2(1), 2(2), and 3. Common schools, district schools, and normal schools were all forms of publicly funded schools. See generally, Conrad E. Patzer, Public Education in Wisconsin (1924). 5 The state appropriated approximately $7.72 billion in school aid for 1997-99 biennium budget. Wisconsin Legislative Fiscal Bureau, Elementary and Secondary Sch. Aids 1 (Jan. 1999). 10 No. 97-3174 source of school funding is the directly to each local district. of funding is state aid.6 property tax, which applies The other significant source State aid includes equalization aid, categorical aid, and the school levy tax credit.7 We describe each type of aid in turn. EQUALIZATION AID ¶6 According to the Legislative Fiscal Bureau, equalization aid "is intended to ensure that differences in tax rate primarily reflect differences in school district spending 6 The federal government also contributes a limited amount of aid to school districts, which is generally used for special education and remedial education. Elementary and Secondary Sch. Aids at 3. The amount of this aid is not significant for the purposes of this case, so we do not address it further in this opinion. 7 The legislature, as part of Wis. Stat. ch. 121the chapter on school financefurther includes a provision on school district standards, which directs school boards to maintain certain licensure requirements, facility and curriculum standards, and standardized testing procedures. Wis. Stat. § 121.02 (1997-98). This statute is incorporated into the subchapter on general aid. Section 121.02(L) directs local school boards to provide regular instruction in particular courses in the elementary grades, grades 5-8, and grades 9-12. 11 No. 97-3174 levels."8 Wisconsin Legislative Fiscal Bureau, Elementary and Secondary Sch. Aids at 10 (Jan. 1999). Equalization aid is distributed on the basis of a school district's relative fiscal capacity. from Id. at 1. property differs The majority of school funds are derived taxes. However, between districts, the since state the property distributes tax base equalization aid according to the formula set forth in Wis. Stat. § 121.07 (1997-98).9 district Equalization aid provides each qualifying school with a guaranteed tax base, thereby minimizing differences in the ability of school districts to raise revenue through property deficiencies in tax. a Equalization school district's tax guaranteed amount provided by the state. equalization district's base." aid actual "make[s] up the tax and the base aid compensates base up to any the In other words, the difference state['s] between guaranteed the tax Elementary and Secondary Sch. Aids at 7. 8 We note that equalization aid is a component of general school aids. Elementary and Secondary Sch. Aids at 1. Other general school aids include integration aid and special adjustment aid. Id. at 11. We only discuss equalization aid in detail because many school districts do not receive either integration aid or special adjustment aid. Id. at 12. A school district receives integration aid when it transfers students to change the racial balance of the district. Id. Special adjustment aid is given to a district that is experiencing a reduction in general school aid, or when a school district is consolidating. Id. at 13. We also note that a portion of the School District of Milwaukee's equalization aid goes toward paying for the Milwaukee Parental Choice Program and charter schools. Id. at 13-14. 9 All subsequent references to the Wisconsin Statutes are to the 1997-98 text unless otherwise noted. 12 No. 97-3174 ¶7 Computation of state equalization aid depends on five factors: a) valuation, membership, b) shared cost, c) equalized property d) guaranteed available funding. valuation, and e) the amount of Elementary and Secondary Sch. Aids at 7. The number of students enrolled in a district determines the district's membership. Wis. Stat. § 121.07(1)(a). Shared cost is the "sum of the net cost of the general fund and the net cost of the debt represents those equalization Sch. Aids market service school formula at value 8. of fund." § 121.07(6)(a). district provides Equalized taxable expenditures aid. Elementary property property in Shared for the which and valuation is school cost the Secondary "the full district as determined by the Department of Revenue (DOR) . . . each year." Id. District equalized value (DEV) is the equalized valuation on a per pupil basis. 33. See Elementary and Secondary Sch. Aids at Guaranteed valuation represents a guaranteed tax base. at 10. Id. The state guaranteed valuation (SGV) is "the amount of property tax base support which the state guarantees behind each pupil." ¶8 Id. at 8. Equalization aid applies at three different district spending levels. of See also § 121.07(7)-(8). shared cost. District spending levels are defined in terms The first level consists of a primary guaranteed tax base of $2,000,000 per pupil for the first $1,000 13 No. 97-3174 of shared costs.10 Wis. Stat. § 121.07(6)(b), (c), and (7)(a). The $1,000 is also referred to as the primary cost ceiling. The Legislative Fiscal Bureau further explains: The first level is for shared costs up to the "primary cost ceiling" of $1,000 per member. The state's sharing of costs at the primary cost ceiling, referred to as "primary shared costs," is calculated using a statutory guaranteed valuation of $2,000,000 per member. State aid at the primary level is based on a comparison between a school district's equalized valuation per member and the primary guaranteed valuation; state aid will equal the amount of costs that would be funded by the missing portion of the guaranteed tax base. Elementary and Secondary Sch. Aids at 8. Currently, all school districts primary equalization aid. in the state receive some The primary guarantee is protected by a hold harmless provision, which means that negative aids cannot reduce any district's primary aid amount. ¶9 See id. The state gives secondary equalization aid to a school district when the district spends at a level between the primary shared cost ceiling and the secondary cost ceiling. and Secondary Sch. Aids at (dg). 8. The See also 1998-99 Elementary Wis. secondary Stat. § 121.07(6)(d)(1)-(2) and cost ceiling was $6,285. Elementary and Secondary Sch. Aids at 8. The amount of aid is determined by the ratio of a district's 10 A different primary guarantee applies to various types of school districts. The primary guarantee for a K-12 school district is $2,000,000. A union high school's primary guarantee is $6,000,000, and the primary guarantee for a K-8 school is $3,000,000. This opinion focuses on the primary guarantee for K-12 school districts because most districts are in that category. Elementary and Secondary Sch. Aids at 9. 14 No. 97-3174 actual per-pupil equalized valuation to the secondary guaranteed valuation. amount. ¶10 Id. The secondary guaranteed valuation is a variable In 1998-99 it was $676,977. Id. The third level, or "tertiary shared cost" level, "is that portion of a school district's shared cost which is greater than the secondary ceiling cost per member multiplied by its membership." legislature Wis. acted in Stat. 1995, § 121.07(6)(dr). the state Before employed a the two-tiered system, which was replaced by the current three-tiered system under 1995 Wis. Act. 27. The amount of tertiary aid is deducted from the secondary aid amount if the amount of tertiary aid is a Elementary and Secondary Sch. Aids at 9. negative number. is referred to as "negative aid." This However, when the secondary and tertiary aid equal a negative number, the resulting amount is not deducted from the primary aid. Id. The tertiary guarantee is designed to discourage districts from spending at a level above the disparities. Id. ¶11 receives ceiling, and to narrow per pupil spending Applying these concepts, the amount of aid a district at any level may be determined by the following formula: State aid = 1-DEV/SGV x shared cost11 The general equalization formula to determine the amount of aid a school district receives is: 11 As defined in ¶7, "DEV" represents the district equalized value figure, and "SGV" represents the state guaranteed valuation figure. 15 No. 97-3174 Equalization aid = (1-(DEV/primary SGV) x primary shared cost) + (1-(DEV/secondary SGV) x secondary shared cost) + (1-(DEV/tertiary SGV) x tertiary shared cost) CATEGORICAL AID ¶12 The There are approximately 25 categorical aid programs.12 programs programs. are either formula-driven, Formula-driven programs give or they funds are to grant school districts on the basis of the number of students who meet the criteria for the program. 14. Elementary and Secondary Sch. Aids at Grant programs require districts to submit a proposal to receive funds. Id. Categorical aids differ from equalization aid in that they do not depend on the relative wealth of a school district. Id. Categorical aids are not calculated into statutory revenue limits. 12 The following is a list of the state categorical aid programs: 1) handicapped education, 2) county children with disabilities education boards (CCDEBs), 3) pupil transportation, 4) school library, 5) TEACH technology block grants, 6) TEACH training and technical assistance grants, 7) telecommunications access program, 8) technology infrastructure loans, 9) pioneering partners grants, 10) bilingual-bicultural education, 11) aid to Milwaukee Public Schools (desegregation settlement aid), 12) preschool to grade 5 grants, 13) state tuition payments; open enrollment transfer payments, 14) full-time open enrollment aid for transportation, 15) alcohol and other drug abuse (AODA) grants, 16) head start supplement, 17) nutritional programs, 18) student achievement guarantee in education (SAGE), 19) driver education, 20) children-at-risk programs, 21) peer review and mentoring, 22) CESA administration, 23) environmental education, 24) alternative schools for American Indians, 25) youth options and open enrollment transportation. Elementary and Secondary Sch. Aids at 14-25. 16 No. 97-3174 THE SCHOOL LEVY TAX CREDIT ¶13 The school levy tax credit is paid to municipalities, in contrast to equalization aid and categorical aid, which are paid to school districts. 1. Elementary and Secondary Sch. Aids at See also Wis. Stat. §§ 20.835(3)(b), 79.10, 79.14. credit is designed to reduce property taxes. Id. The tax In 1998-99, on a statewide level, the school levy credit reduced the school portion of tax bills by 16.8% on average. Elementary and Secondary Sch. Aids at 29. ¶14 In addition to the school levy tax credit, district increases funded by local taxes are limited by a fixed amount, termed a "revenue limit." Wis. Stat. § 121.91. Revenue limits may only be exceeded if residents in a district pass a voter referendum. § 121.91(3). A school district may be penalized if the school district exceeds the maximum allowed revenue under § 121.91. B. § 121.92. Procedural History ¶15 We now turn history of this case. October 1995. to an examination of the procedural The Plaintiffs initiated this action in Thereafter, the president of the Wisconsin Education Association Council (WEAC) and other teachers ("the Intervening Plaintiffs") intervened. The Plaintiffs, Intervening Plaintiffs, and Defendants filed cross-motions for summary judgment on February 24, 1997. 17 No. 97-3174 ¶16 The Petitioners13 contend that the needs of Wisconsin students are changing and that the school finance system has not kept up with those needs. They contend that the perceived inequities in the system violate the uniformity clause and the Equal Protection Clause, contrary to the Wisconsin Constitution. The inequality stems from a failure "to adequately adjust for the disparity in tax base." (Pl.-Pet'r's Br. at 4.) As a result, property wealth dictates educational opportunity in this state, the Petitioners argue. ¶17 According to the Petitioners, categorical aids have been reduced, which "effectively restricts district spending by preventing the school board from compensating for the reduced state aid with additional property tax revenue." Pl.-Pet'r's Br. at 12.) This results in (Intervening school districts shifting funds away from regular programs and into categorical programs. As a result, some districts are unable to retain teaching positions or districts have their cut maintain school offerings in facilities. advanced Other placement or multiple foreign languages. ¶18 The Petitioners further contend that revenue prevent school districts from raising necessary funding. 13 limits For We refer to the Plaintiffs and Intervening Plaintiffs collectively as "Petitioners," except when referring to the procedural history of this case. Throughout this opinion, we also identify specific arguments made by either the Plaintiffs or the Intervening Plaintiffs in their briefs as "PlaintiffsPetitioners," or "Intervening Plaintiffs-Petitioners." 18 No. 97-3174 instance, revenue limits prohibit school districts from purchasing and implementing new technology. ¶19 Moreover, the Petitioners argue that there has been a significant increase in "high need" students in Wisconsin. High need students include impoverished children, disabled children, and children with limited English skills. Additional programs have been mandated by either the state or the federal government for these high need students, but without necessarily increasing funding for the programs. ¶20 Finally, the Intervening Plaintiffs-Petitioners contend that charter schools and the Milwaukee Parental School Choice Program pull students out of the public schools. This in turn decreases the number of pupils, or members, in a school district, reducing the amount of funding the district receives. ¶21 The circuit court, the Honorable Richard J. Callaway presiding, found that under Kukor, 148 Wis. 2d 469, the school finance system is constitutional and granted the defendants' motion for summary judgment. The court first noted that all children an in this state have equal right to education. However, the Plaintiffs "mistakenly framed the issue as whether the State equalizes distributes local budgets its school rather than money in whether a the manner which children of Wisconsin . . . are receiving the education to which they are entitled." The court then concluded that the Plaintiffs and Intervening Plaintiffs had not overcome the strong presumption of constitutionality that statutes enjoy. See, e.g., United States v. National Dairy Prod. Corp., 372 U.S. 29, 32 (1963). 19 No. 97-3174 ¶22 The school finance system does not violate the uniformity clause of the constitution, the circuit court found, because according uniformity to clause in this court's Kukor, 148 interpretation Wis. 2d at the (Ceci, 492 of J. plurality); 148 Wis. 2d at 514 (Steinmetz, J., concurring), the constitution does not require that the educational opportunities provided by school districts be absolutely equal. ¶23 The circuit court also determined that the finance system does not violate equal protection. school The court repeatedly noted that the Plaintiffs and Intervening Plaintiffs failed to give virtually any evidence relating to the quality of education students receive in Wisconsin, and therefore, the court could not ascertain whether students are being deprived of their right to an education. The state has significantly increased its total state aid to the public schools, and the increase in state aid distribution of tax credit court further recognized outweighs to any wealthy that the disproportionate property current owners. system The provides schools across the board with more state aid than the system at issue in Kukor. The schools face the same problems that they did when the Kukor court reviewed the system, and the Kukor court was unpersuaded by those facts. ¶24 In sum, the circuit court concluded that the Plaintiffs and Intervening Plaintiffs did not demonstrate the school finance system's negative impact on education. Without such evidence, the court had no way to ascertain "the magnitude 20 No. 97-3174 of any deficiencies in the State's effort to fulfill its duty to provide students with a basic education." ¶25 not The court of appeals agreed that the plaintiffs did demonstrate any material difference between system and the system at issue in Kukor. 6. the current Vincent, slip op. at In other words, no significant disparities exist between the aid given under either system. Slip op. at 28-29. Moreover, the court found no evidence of children who do not receive at least a basic education. Slip op. at 32-33. In fact, the court concluded, "the evidence suggests that the state is providing greater aid to school districts than it did at the time Kukor was decided." ¶26 Slip op. at 33. Judge Dykman concurred in the court of appeals' decision, but noted the record demonstrated "that lower spending school districts are laboring under very difficult conditions." Vincent, slip op. at 35 (Dykman, J., concurring). The concurrence also lamented that Kukor contained no test for the court of appeals to use in assessing the current finance system and that "substantially improved programs are needed in our less affluent school districts." ¶27 light Slip op. at 36. In part II of this opinion we analyze art. X, § 3 in of its precedent. We constitutional affirm history Kukor, but and explain this further definition of equal opportunity for an education. and IV violates we address art. X, whether § 3 and the current art. Constitution. 21 I, school § 1 court's of the past Kukor In parts III finance the system Wisconsin No. 97-3174 II ¶28 X, § 3 We begin by interpreting the uniformity clause in art. of the Wisconsin Constitution, which states that the district schools "shall be as nearly uniform as practicable."14 We interpret constitutional provisions de novo. Craney, 199 Wis. 2d 674, 680, 546 N.W.2d Thompson v. 123 (1996). We benefit, however, from the analyses of the circuit court and the court of appeals. ¶29 was to We recognize that "the clear purpose of art. X, § 3, compel 648, exercise 658, 251 N.W.2d 822 principle" that the Wisconsin power. of the power to the extent Zweifel v. Joint Dist. No. 1, Belleville, 76 Wis. designated." 2d the (1977). It Constitution is a limits "fundamental legislative Manitowoc v. Manitowoc Rapids, 231 Wis. 94, 97, 285 N.W. 403 (1939). See also State ex rel. Dudgeon v. Levitan, 181 Wis. 326, 339, 193 N.W. 499 (1923); Pauly v. Keebler, 175 Wis. 428, 439, 185 N.W. 554 (1921); Outagamie County v. Zuehlke, 165 Wis. 32, 35, 161 N.W. 6 (1917). In Busé v. Smith, 74 Wis. 2d 550, 564, 247 N.W.2d 141 (1976), we specifically stated that "the 14 Wisconsin Const. art. X, § 3District schools; tuition; sectarian instruction; released timestates: 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. 22 No. 97-3174 search is not for a grant of power to the legislature but for a restriction thereon." Moreover, it is "a limitation upon the broad power of the state to educate its citizens through the establishment and operation of schools. precisely stated: District and free Zweifel, 76 Wis. 2d at 658. tuition for certain ages." schools, The limitations are uniformity, See also Manitowoc, 231 Wis. at 97-98; Zuehlke, 165 Wis. at 35. ¶30 Three sources guide constitutional provision: our interpretation of a "the plain meaning of the words in the context used; the constitutional debates and the practices in existence at the time of the writing of the constitution; and the earliest interpretation of the provision by the legislature as manifested in the first law passed following adoption." ¶31 The word "uniform" in the context of art. Id. X, § 3 plainly refers to the "character of instruction" provided in the public schools. In T.B. Scott Lumber Co. v. Oneida County and another, 72 Wis. 158, 161, 39 N.W. 343 (1888), this court found that the organization of a township school system15 violate the uniformity clause under art. X, § 3. did not By finding the township school system "uniform," this court implied that it did not equate equal acreage with "uniformity." The Exception to the Rule: Suzanne M. Steinke, Wisconsin's Fundamental Right to Education and Public School Financing, 1995 Wis. L. Rev. 1387, 15 A township school system was organized and taxed through a town. Patzer, Public Education in Wisconsin at 63. Under this system, independent school districts became sub-districts of the greater township school unit. Id. 23 No. 97-3174 1399 [hereinafter, The Exception to the Rule]. Later, in State ex rel. Zilisch v. Auer, 197 Wis. 284, 290, 221 N.W. 860 (1928), we determined that the uniformity clause in art. X, § 3 related to the "character of instruction" at the public schools after they were established, districts," or not fixing the district "method of forming boundaries. school "Character of instruction" was described as "the training that these schools should give to the future citizens of Wisconsin." representative cases demonstrate that from Id. our These earliest jurisprudence on, we have construed the uniformity clause to relate to the "character of instruction" offered in the public schools, and not the size, boundaries, or composition of the school districts. See also The Exception to the Rule, 1995 Wis. L. Rev. at 1400. ¶32 The practices in existence around the time of the constitutional conventions further guide our interpretation of Wis. Const. art. X, § 3. Before the mid-1800's, elementary and secondary schools were generally privately funded. Erik LeRoy, The Egalitarian Roots of the Education Article of the Wisconsin Constitution: Criticized, Old History, New Interpretation, Busé v. Smith 1981 Wis. Egalitarian Roots]. Wis. L. Rev. at L. Rev. 1325, 1344 [hereinafter, See also The Exception to the Rule, 1995 1391. The territorial government in 1836 created a "district school" system that was financed partially by taxes, but still in large part by private Egalitarian Roots, 1981 Wis. L. Rev. at 1344-45. 24 subscription. No. 97-3174 ¶33 Several factors produced an "impetus" for free public school education in Wisconsin. Egalitarian Roots, 1981 Wis. L. Rev. viewed at 1347. First, some public schools as an opportunity to eliminate distinctions between the wealthy and the poor.16 to Id. at 1346. integrate the "transplants." Others viewed public schools as a way swell of Id. at 1347. new immigrants East Coast Finally, others simply wanted to use state funds to "to pay for education." ¶34 with Id. at 1348. It appears that by the time of the 1846 constitutional convention, there was general for a constitutional Egalitarian Roots, 1981 Wis. L. Rev. at provision on education. 1348 and n.101. support The 1846 constitutional convention manifested its support for education by devoting 500,000 acres of land, which the federal government attaining statehood. was to Id. at 1349. give to Wisconsin upon Unfortunately, however, no debates ensued relating to the draft of art. X, § 3 at either the 1846 or 1848 constitutional provision was wholly uncontroversial. conventions because the Id. at 1350. ¶35 Finally, we examine the early state statutes on school finance. The state laws of 1848 contained a number of statutory provisions relating comprehensive statute to the public on public schools. schools included The a most detailed section on local taxes17 and a section on the distribution of 16 The suffrage movement has also been credited with promoting public education. Egalitarian Roots, 1981 Wis. L. Rev. at 1346 n.93. 17 Laws of 1848Of Taxes for School Purposes: 25 No. 97-3174 Sec. 90. It shall be the duty of the supervisors of the towns in this state to assess the taxes voted by every school district in their town, and also all other taxes provided in this chapter chargeable against such district or town upon the taxable property of the district or town respectively, and to place the same on the town assessment roll, in the column of school taxes and the same shall be collected and returned by the town treasurer in the same manner and for the same compensation as town taxes. Sec. 91. The supervisors of each town shall assess upon the taxable property of said town a sum not less than one half of the amount received by said town from the school fund of this state, and the same shall be collected and returned in the same manner as is provided in the preceding section and shall be apportioned to the several school districts in the town in proportion to the number of children in each district between the ages of four and twenty years for the support of schools therein. Sec. 92. The supervisors shall also assess upon the taxable property of their township two and a half mills on each dollar of the valuation thereof in each year which shall be apportioned to the several school districts in the townships for the support of schools therein, and the same shall be levied, callected [sic] and returned in the same manner as is provided in the preceding section. Sec. 93. Each school district at any regularly called meeting of the legal voters of said district may raise an additional tax to defray the expenses of teachers wages and contingent expenses: and said tax shall be levied collected and returned as the town taxes provided for in this act: Provided, that when a tax shall be voted in any school district meeting, the notice for such meeting shall specify the object of raising such tax. Sec. 94. The supervisors on delivery of the warrant for the collection of taxes to the town treasurer, shall also deliver to said treasurer a written statement of the amount of school taxes, the amount raised for district purposes on taxable property of each district in the town, the amount belonging to any new district on the division of the former district and the names of all persons having judgments assessed under the provisions of this 26 No. 97-3174 income of the school fund. "An Act in Schools," Laws of 1848, p. 240-41, 243. Relation to Public Significantly, Section 91 of the statute required each town receiving state funds to match at least half of the amount donated by the state. 92 set the dollar." property tax at "two and a half Section mills on each Section 93 provided for an additional tax that could be raised after a vote was taken to fund teachers' wages and expenses. receive number The school fund provision stated that towns would interest from of children the in school such fund town . "in . . proportion ." to Section the 104, Distribution of Income of the School Fund, Laws of 1848, p. 243. ¶36 the The plain meaning, the practices around the time of constitutional convention, and the early statutes all indicate that art. X, § 3 was intended to refer to the character of the instruction given at the public schools. ¶37 We now turn to regarding school finance. this court's more recent precedent This court has directly examined the chapter, upon the taxable property of any district with the amount payable to such person on account thereof. Sec. 95. The town treasurer of each town shall retain in his hands out of the moneys collected by him the full amount of the school tax collected on the assessment roll, and hold the same subject to the order of the district treasurer. Sec. 96. Said treasurer shall from time to time apply to the county treasurer for all school moneys belonging to his town or the districts thereof, and on the receipt of the moneys to be apportioned to the districts, he shall notify the town clerk of the amount to be apportioned. 27 No. 97-3174 constitutionality of the state school finance system twice in the last 25 years. At issue in Busé, 74 Wis. 2d at 556, were two created statutes that negative aid for certain school districts, or reduced the positive aid those districts could have received. The plaintiffs, the negative aid school districts and property taxpayers residing in the negative aid school districts, argued that the negative aid statutes were unconstitutional. Their main argument was that the statutory negative aid provisions violated the rule of uniform taxation, articulated in art. VIII, § 1 of the Wisconsin Constitution. Busé, 74 Wis. 2d at 554. Additionally, the court addressed whether negative aid was unconstitutional under art. X, §§ 3 and 4 and art. I, § 1 of the Wisconsin Constitution. ¶38 Id. at 562. The court first examined whether the statutes violated the uniformity clause of Wis. Const. art. X, § 3. specifically considered whether art. X, § 3 The court requires the legislature "to provide an equal opportunity for education for all school children in the state." Busé, 74 Wis. 2d at 562. The court recognized that while the United States Constitution does not require the establishment of schools, San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), the Wisconsin Constitution does contain that requirement. Busé, 74 Wis. 2d at 564 (quoting Wis. Const. art. X, § 3). Besides establishing the public schools, art. X, § 3 also states that the public schools must be "as nearly uniform as practicable" and that children in the state may attend the public schools without charge. Id. at 565. 28 No. 97-3174 ¶39 Having provisions, the set court forth held the the pertinent framers of constitutional the constitution intended the phrase "as nearly uniform as practicable" to refer to the "character of instruction" at the district schools. Id. at 566 (quoting State ex rel. Zilisch v. Auer, 197 Wis. 284, 289-90, 221 N.W. 860, 223 N.W. 123 (1928)). The court further stated that "[e]quality of opportunity for education is equated with the right of all school children to attend a public school free of charge . . . ," id. at 565, and equal opportunity for education is a fundamental right. Id. at 567. However, the court concluded that according to the plain meaning of art. X, § 3 and constitutional history, art. X, § 3 does not require educational opportunity to be absolutely uniform. ¶40 With regard to art. X, § 4 of Id. at 568. the Wisconsin Constitution, the court examined whether local district control of funding was, in some measure, required by the constitution. Busé, 74 Wis. 2d at 570. The court again carefully examined the language of the constitution, the constitutional debates, and the early districts legislative retain enactments the to control determine to that provide "[l]ocal educational opportunities over and above those required by the state and they retain the power to raise and spend revenue ' . . . for the support of common schools therein . . . . '" ¶41 The court then found the Id. at 570-72. negative aid provisions unconstitutional in light of the uniform tax rule in art. VIII, § 1 of the Wisconsin Constitution. The court set forth the limitations on the power to tax, noting that "the purpose of [a] 29 No. 97-3174 tax must be one which pertains to the public purpose of the district within which the tax is to be levied and raised." at 577. The state does not have the power to tax a local entity "'for a purely local purpose.'" Id. at 576 (quoting Thomas M. Cooley, Law of Taxation, § 86, pp. 211, 212 (1924)). the Id. court concluded, "the state cannot compel As such, one school district to levy and collect a tax for the direct benefit of other school districts, or for the sole benefit of the state." Id. at 579. ¶42 Finally, the court examined whether the negative aid provisions violated equal protection and due process. the court held that equal educational opportunity Because is a fundamental right, the court applied the strict scrutiny test to its equal protection analysis. concluded that scrutiny. negative aid provisions The court then Id. ¶43 the Id. at 580. survived strict The concurrence viewed negative aid as a state tax. Busé, 74 Wis. 2d at 581 (Robert W. Hansen, J., concurring). However, the concurrence agreed with the majority that a municipality cannot be forced to assume obligations that it does not ordinarily have. Id. (quoting Lund v. Chippewa County, 93 Wis. 640, 648-49, 67 N.W. 927 (1896)). ¶44 The dissent disagreed that negative aid violated the uniform taxation rule. dissenting). had not Busé, 74 Wis. 2d at 583 (Abrahamson, J., The dissent first noted that it felt the majority "accorded constitutionality." this statute Id. at 584. 30 the proper presumption of Moreover, the dissent argued No. 97-3174 it was "not clear beyond reasonable question that the statute conflicts with the constitution," and when in doubt, a court must "'favor . . . the validity of the act.'" Id. (quoting State ex rel. New Richmond v. Davidson, 114 Wis. 563, 579-80, 88 N.W. 596, 90 N.W. 1067 (1902)). ¶45 The dissent articulated the issue before the court as "whether the 'negative aid' statute violates the public purpose doctrine . . . ." that negative districts," Busé, 74 Wis. 2d at 589. aid "applies and "[n]o one across school the The dissent state district is to all singled school out to Id. at support another school district or state education." 594. found Moreover, the dissent felt that negative aid should not be invalidated just because some, but not all, districts have to pay it. Id. The dissent concluded that provisions were consistent with precedent. ¶46 the negative aid Id. at 594-95. More recently, in Kukor v. Grover, the plurality and concurrence agreed that under art. X, § 3 of the Wisconsin Constitution each student is guaranteed a basic education.18 148 Wis. 2d at 503 (Ceci, J., plurality); id. at 514 (Steinmetz, J., 18 We have adopted the United States Supreme Court's treatment of plurality opinions in applying the holdings of that Court. Lounge Management v. Town of Trenton, 219 Wis. 2d 13, 21-22, 580 N.W.2d 156 (1998); Tomczak v. Bailey, 218 Wis. 2d 245, 284, 578 N.W.2d 166 (1998) (Crooks, J., concurring). In a plurality "'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" Id. (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 [] (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). See also Marks v. United States, 430 U.S. 188, 193 (1977). 31 No. 97-3174 concurring). The plurality and concurrence further agreed that education does not have to be absolutely uniform to satisfy art. X, § 3.19 Id. at (Steinmetz, J., concurrence held 487 (Ceci, J., concurring). that the plurality); Second, the legislature's id. at 514 plurality and fiscal decisions regarding education are entitled to great deference. 502-03 (Ceci, concurring). is not J., plurality); id. at 512 Id. at (Steinmetz, J., Third, the plurality and concurrence held that it necessary to analyze the school funding system under strict scrutiny, because equal allocation of state resources is not a fundamental right.20 Id. at 498 (Ceci, J., plurality); id. at 513 (Steinmetz, J., concurring). ¶47 The dissent characterized the state school finance system as "fundamentally flawed" because the state, according to the dissent, did not take educational need into account when distributing funds. dissenting). had been Kukor, 148 Wis. 2d at 516 (Bablitch, J., The dissent noted that "character of instruction" defined by this court as "'services, procedures, opportunities or rules' provided in district schools." Id. at 520 (quoting Zweifel v. Joint Dist. No. 1, Belleville, 76 Wis. 19 We also note that the plurality viewed the "character of instruction" that must be uniform as the standards set forth in Wis. Stat. § 121.02, such as "minimum standards for teacher certification, minimal number of school days, and standard school curriculum." Kukor v. Grover, 148 Wis. 2d 469, 492-93, 436 N.W.2d 568 (1989). 20 However, the court recognized that equal access education is a fundamental right. Kukor, 148 Wis. 2d at 496. 32 to No. 97-3174 2d 648, 653, 251 N.W.2d 822 (1977)). The dissent then pointed to the circuit court's findings, which indicated the failure of the school finance system. dissent criticized the Id. at 522-24. finance In particular, the system's method of funding "special needs" programs, leaving school districts with little choice but to draw funds from "regular" programs to be used for "special needs." Id. at 525. The dissent felt that the evidence demonstrated the finance system's failure to provide children with person." Id. at 526. ¶48 right Our that "a uniform decision we explain in opportunity Kukor today. laid to become the Recently, an educated foundation a number for of the states considering the constitutionality of school finance systems have turned toward the notion of educational adequacy as a better approach than previous educational equality analyses. See, e.g., McDuffy v. Secretary of the Executive Office of Educ. and others, 615 N.E.2d 516, 554 (Mass. 1993) (quoting Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 212 (Ky. 1989)); Pauley v. Kelly, 255 S.E.2d 859, 877 (W. Va. 1979). The adequacy approach to school finance refers to an examination of "the quality of the educational services delivered to children in disadvantaged Equality Behind: districts . . . ." Peter Enrich, Leaving New Directions in School Finance Reform, 48 Vand. L. Rev. 101, 109 (1995) [hereinafter, Leaving Equality Behind]. ¶49 Courts have turned toward adequacy as an alternative way to analyze school finance systems because previous decisions 33 No. 97-3174 centered on equality have not lessened the disparity between school districts. 102-03. benefits. "grounded Leaving Equality Behind, 48 Vand. L. Rev. at Focusing on adequacy, it is claimed, has a number of Among in other broadly benefits, shared the societal adequacy values approach concerning is the importance of education and the obligation to provide for the basic needs of society's least advantaged." adequacy approach also may be appealing Id. at 170. because it The does not threaten to lower the level of achievement in some districts in an effort to create equality. ¶50 Id. Under the adequacy approach, a state generally lists the types of knowledge that a child should possess to guide a legislature in fulfilling its constitutional obligations. example, Massachusetts articulated the following guidelines: An educated child must possess "at least the seven following capabilities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable students to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient selfknowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient level of academic or vocational skills to enable public school students to compete favorably with their counterparts in 34 For No. 97-3174 surrounding market." states, in academics or in the job McDuffy, 615 N.E.2d at 554 (quoting Rose, 790 S.W.2d at 212). This type of standard articulates the content of an adequate education. Leaving Equality Behind, 48 Vand. L. Rev. at 176. Courts that have used this approach do not attempt to "displace the legislative function of identifying realistic parameters for the state's ambitions, but rather [attempt] to serve as a goad or as a backstop to the legislature's accomplishment of that task." In Massachusetts, it was expected that limited Id. judicial intervention would likely be "quite productive." ¶51 Id. 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. The legislature has articulated a standard for equal opportunity for a sound basic 121.02(L). education in Wis. Stat. §§ 118.30(1g)(a) and Section 118.30(lg)(a) states that "each school board shall adopt pupil academic standards in mathematics, science, reading and writing, geography and history." Section 121.02(L) requires that "each school board shall . . . provide instruction" in several subjects, according to school grades. ¶52 By grounding the standard in statutes, we reiterate our position in Kukor, 148 Wis. 2d at 503, 505 n.14, wherein we stated that we defer to the legislature because it "is uniquely equipped to evaluate and respond to such questions of public policy . . . ." As such, we defer here to the legislature's 35 No. 97-3174 wisdom in choosing which core subjects21 should be involved in providing an equal opportunity for a sound basic education.22 ¶53 Further, we note that the reason for articulating the standard in terms of equality and adequacy is to guarantee "that each district can provide its students with an acceptable basic level of educational services." Vand. L. Rev. at 112. Leaving Equality Behind, 48 The objective is to adopt a standard that will "equaliz[e] outcomes, not merely inputs." Id. at 151. III ¶54 We now consider the Petitioners' argument that the statutory school finance system set forth in Wis. Stat. ch. 121, and Wis. Stat. §§ 79.10 and 79.14, lacks uniformity under art. X, § 3 of the Wisconsin Constitution. A party challenging a statute must prove that the statute is unconstitutional beyond a reasonable doubt. Norquist v. Zeuske, 211 Wis. 2d 241, 250, 564 21 The opportunity to be proficient in these core subjects must be as equal as practicable; the performance on proficiency tests is not expected to be equal. This means that poor student performance on proficiency tests in school districts is not, without much more, an indicia of the unconstitutionality of the state school finance system. 22 Wisconsin Stat. § 118.30 (1997-98) was the result of a coordinated effort on the part of both the executive and legislative branches of Wisconsin state government. For instance, the state superintendent is responsible for general pupil assessments given in the 4th, 8th, and 10th grade, § 118.30(1)(a), and the department must develop a high school graduation examination based on pupil academic standards if academic standards are issued by the governor. § 118.30(1)(b). In accepting and applying the standard set forth today, this court is cognizant of its role, and the respective roles of the other co-equal branches of government in Wisconsin. 36 No. 97-3174 N.W.2d 748 (1997). "Constitutional challenges to a statute must overcome presumption a strong of constitutionality," and the presumption of constitutionality is greatest for tax statutes. Id. We make every effort to construe a statute consistent with the constitution. proved beyond a Id. We conclude the Petitioners have not reasonable doubt that finance system violates art. X, § 3. the statutory school The state adequately funds each school district to provide for a basic education, and any disparity between districts is a result of district revenueraising capacity above the state's guaranteed tax base. The right to an equal opportunity for a sound basic education has not been shown to be violated by the present school finance system. ¶55 We begin by briefly summarizing the Petitioners' arguments relating to their challenge under art. X, § 3 of the Wisconsin Constitution. Both the Plaintiffs-Petitioners and the Intervening Plaintiffs-Petitioners argue that the school finance system fails because, they contend, the state does not equalize financial resources between school districts. at 41; Intervening Petitioners Pl.-Pet'r's specifically argue Br. at that 33.) the (Pl.-Pet'r's Br. The Plaintiffs- Legislature should "eliminate the tax base disparities from the system so districts that tax the same (at whatever level they choose), spend the same." ¶56 (Pl.-Pet'r's Br. at 71.) The Intervening Plaintiffs-Petitioners argue that the state should create a school finance system that "recognizes, rather than ignores, differing 37 needs of both property-poor No. 97-3174 districts and high needs students." Br. at 34.) would like (Intervening Pl.-Pet'r's Essentially, the Intervening Plaintiffs-Petitioners the state school financing system to adjust the financial resources distributed to school districts to take into account the cost of educating high need students. Pl.-Pet'r's Br. at 35.) (Intervening The Intervening Plaintiffs-Petitioners also would like the state to formulate objective standards to measure whether education. ¶57 the students are receiving at least a basic (Intervening Pl.-Pet'r's Br. at 34.) Historically, this court has held that disparity in revenue-raising capacity of a school district constitute a violation of the uniformity clause. does not As we stated earlier, in Zilisch, 197 Wis. at 289, we considered whether the phrase, method "as of nearly uniform establishing as practicable," school districts, or referred to to the maintaining schools after the districts were established. The court looked to refers the language of art. X, § 3, which establishment of district schools," for guidance. to Id. "the This language revealed that the framers applied the uniformity clause to the schools themselves, not to the creation of the school districts. Id. at 290. The court explained that the provision spoke to "the character of instruction that should be given in those schools after the districts were formed,with the training that these Wisconsin." ¶58 schools should give to the future citizens of Id. Similarly, in Larson v. State Appeal Board, 56 Wis. 2d 823, 827-28, 202 N.W.2d 920 (1973), this court again held that 38 No. 97-3174 art. X, § 3 of the Wisconsin Constitution applies to the "character of instruction" in schools, not the nature of the boundaries between school districts. The appellant in Larson set forth evidence relating to the equalized valuations, the number of students, and the size of the Watertown and Johnson Creek school districts. Id. at 826-27. The court refused to apply an analysis under Wis. Const. art. X, § 3 because the court found that those facts did not pertain to the character of Id. at 828. instruction in the districts. that this court does not review the Larson reaffirmed composition of school districts under the guise of an art. X, § 3 analysis. ¶59 We find this conclusion to be very significant. The Petitioners argue that some school districts have low property values and therefore cannot raise as much local revenue as other districts. the However, according to a careful reading of Zilisch, constitution revenue-raising does not capacity. require The districts Zilisch to court have uniform stated that districts are not required to have uniform boundaries, or to be established in a uniform manner. Zilisch, 197 Wis. at 290. See also Joint Sch. Dist. v. Sosalla, 3 Wis. 2d 410, 420, 88 N.W.2d 357 (1958). If the framers of the state constitution did not intend the districts' boundaries or method of establishment to be uniform, then surely the framers could not have envisioned the districts' taxing capacity to be uniform, since taxing ability and boundaries are interrelated. ¶60 Moreover, the constitution only requires that each child receive an equal opportunity for a sound basic education. 39 No. 97-3174 Busé recognized that children have a fundamental right to an "equal opportunity for education." See Busé, 74 Wis. 2d at 567. We have repeatedly stated this proposition, both before and after our pronouncement in Busé. ¶61 First, in State ex rel. Comstock v. Joint School District, 65 Wis. 631, 636-37, 27 N.W. 829 (1886), we stated 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 Later, in Davis v. Grover, 166 Wis. 2d 501, 539, 480 with." N.W.2d 460 (1992), we held: "[t]he uniformity clause clearly was intended to assure certain minimal educational opportunities for the children of Wisconsin . . . . [T]he uniformity clause requires the legislature children in Wisconsin education." N.W.2d 602 to to provide the receive a opportunity free for uniform all basic In Jackson v. Benson, 218 Wis. 2d 835, 894-95, 578 (1998), this court most recently recognized that "art. X, § 3 provides not a ceiling but a floor upon which the legislature can build additional opportunities . . . ." ¶62 A review of other provisions in art. X of the Wisconsin Constitution is further helpful in ascertaining the framers' intent in drafting art. X, § 3. Article X, § 5 is the one constitutional provision that allocates state funds for the public school districts. It states that income from the school fund is to be distributed "in some just proportion to the number of children and youth resident therein between the ages of four and twenty years . . . ." This provision articulates the extent 40 No. 97-3174 of the state's funding obligation to the school districts: to provide funding on a per-pupil basis. The plain meaning of the provision framers supports this viewthe phrased their directions in purely mathematical terms such as "proportion" and "number." could The provision does not include language from which we infer that certain children were to be allocated more funding than others based on subjective need alone. ¶63 supports An analysis of our conclusion. Wis. Const. Article X, art. § 4 X, § 4 requires further towns and cities to raise a tax to support the schools located within that area. Wis. Const. art. X, § 4. In Busé, 74 Wis. 2d at 571, we recognized the importance of local control under art. X, § 4. We quoted Experience Estabrook, the Chairman of the Constitutional Committee on Education and School Funds during the second Wisconsin Constitutional Convention, who argued that local funds should support local schools so that all citizens, wealthy or poor, public schools. would have an "adequate interest" in their We find his language worth repeating: If a sufficient sum was not contributed by the school fund, the towns should have power to raise more. This provision was directly for the advantage of the poor . . . . [A] poor man with a family of children, and no fancy lots to dispose of, could understand the advantage. Experience had shown that if nothing was contributed by the town, the common schools languished, and select schools rose on their ruins. The school fund of Connecticut was so large as to be sufficient to defray the expenses of the education of every child within the limits of the state. Yet there, until a year or two, the district school-system had declined. No adequate interest was felt by the people, in common schools, unless they contributed to 41 No. 97-3174 their support. To obviate this danger, the committee had inserted the section. Busé, 74 Wis. 2d at 570-71 (quoting Experience Estabrook, Journal and Debates Constitutional Convention 1847-48, p. 335). Estabrook's comments on art. X, § 4 demonstrate that above the constitutionally mandated state per-pupil expenditures, the framers intended local government to contribute a significant amount to school districts. More importantly, Estabrook's comments suggest that local school districts may vary in the amount they tax and spend on their districts. ¶64 Other jurisdictions have also upheld their school finance systems on the basis that the state provided for a basic level of education. The Minnesota Supreme Court recently interpreted the phrase, "general and uniform system of public schools," contained in the education clause of the Minnesota Constitution, and found that it did not mean "'identical'" or Skeen v. State, 505 N.W.2d 299, 302, 311 "'nearly identical.'" (Minn. 1993). The Minnesota school finance system was constitutional, the court determined, because the evidence did not establish "that the basic system is inadequate or that the 'general and uniform' requirement somehow equalization of local referendum levies." implies Id. at 312. full The court further stated that the inequities in the system did not "rise to the level of a constitutional violation." significantly, the court constitutional because it recognized continued educational needs of all districts." 42 Id. that the to "meet Id. Most system was the basic No. 97-3174 ¶65 article The Virginia Supreme Court, in examining the education of the Virginia Constitution, held that it does not require "'substantial equality' in spending or programs among or within the school divisions in the Commonwealth." Scott v. Commonwealth, 443 S.E.2d 138, 142 (Va. 1994). ¶66 Other courts have examined whether the state each district enough to fulfill state minimum requirements. funds The Oregon Supreme Court found compliance under the language of the Oregon Constitution "if the state requires and provides for a minimum of educational opportunities in the district and permits the districts to exercise local control over what they desire, and can furnish, over the minimum." 139, 148 (Or. 1976). Olsen v. State, 554 P.2d Noting that it did not necessarily find the school finance system "desirable," the court nevertheless held that the system was constitutional. ¶67 Further, the Colorado Supreme Court cautioned that the uniformity provision in the Education Clause of the Colorado Constitution providing did "not additional prevent a educational constitutional standard. uniformity opportunities The provision cases district from beyond" the did Moreover, the court held that not expenditures among school districts. ¶68 school Lujan v. Colorado State Bd. of Educ., 649 P.2d 1005, 1025 (Colo. 1982). the local from other require identical per-pupil Id. jurisdictions support our conclusion that the uniformity clause under Wis. Const. art. X, § 3 does not require absolute uniformity in either educational offerings or per-pupil expenditures among school districts. 43 The No. 97-3174 cases cited above also demonstrate that a school finance system that uniformly funds school districts to provide a basic level of education is constitutional. ¶69 We now turn to the evidence presented in this case. The legislature is entitled to deference in its "legislative policy involving fiscal-educational decisions." 2d at 503 (quoting Busé, 74 Wis. 2d at 566). Kukor, 148 Wis. In Busé, 74 Wis. 2d at 566, we explained that the legislature "determine[s] what uniformity [is] 'practicable.'" findings of evidentiary or We uphold a circuit court's historical fact unless they are clearly erroneous. Treiber v. Knoll, 135 Wis. 2d 58, 64, 398 N.W.2d 756 (1987). The Petitioners made a voluminous record, submitting numerous affidavits, depositions, and other materials. We have carefully perused the record made by the Petitioners, and yet we cannot conclude that they have proved the school finance system is unconstitutional beyond a reasonable doubt. ¶70 The Plaintiffs-Petitioners attempt to demonstrate that some districts "are able to provide more opportunities" in their course offerings and technology than other districts. (Pl.- Pet'r's Br. at 50, quoting Deputy State Superintendent Steven Dold's deposition). They also attempt to demonstrate that some districts maintain better facilities, textbooks, and a larger teaching staff. and financial Finally, they attempt to provide statistical evidence showing valuations between districts. differences in equalized They then cite to case law from Arizona, Ohio, and Vermont, invalidating school finance systems 44 No. 97-3174 based on financial differences among the school districts in those states. Roosevelt Elementary Sch. Dist. Number 66 v. Bishop, 877 P.2d 806 (Ariz. 1994); DeRolph v. State of Ohio, 677 N.E.2d 733 (Ohio 1997) (plurality opinion); Brigham v. State of Vermont, 692 A.2d 384 (Vt. 1997). ¶71 The Petitioners' evidence, however meticulously gathered, fails to demonstrate that any children lack a basic education in any school district. Merely showing disparity of the financial resources among school districts is not enough in this state to prove a lack of equal opportunity for a sound basic education. districts to As we have discussed above, Wisconsin requires fulfil a constitutional minimum educational offering, not a maximum. ¶72 While we recognize that the Petitioners have gathered qualitative evidence pertaining to the deteriorating school facilities, limited curricula, and lack of computer technology of some "property poor" school districts, we agree with the Respondents that evidence of the elimination or reduction of certain advanced or elective courses from some districts does not mean that education. those school districts (Resp't's Br. at 71-72.) fail to offer a basic We also strongly agree with the circuit court that the evidence fails to show that the actual basic education being received by the students attending these school districts is inferior to that of the students in the "property rich" school districts. the circuit court noted, of poor 45 There is no evidence, as standardized test scores, No. 97-3174 college entrance rates, or the like. As we have stated, what is required is an equal opportunity for a sound basic education. ¶73 Moreover, effectively the equalizes present the tax school base finance among system did at the time Kukor was decided. system districts more than the At the time of the Kukor decision, the system had only two levels of shared cost. Kukor, 148 Wis. 2d at 476-77. The present system now includes a tertiary level of shared cost. The effect of the tertiary level of shared cost has been to redistribute funds to districts spending less, which are those with lower property values. As such, the present system does more to equalize values between districts than the system found constitutional in Kukor did. ¶74 State funding has also significantly increased.23 Kukor was based on figures compiled for the 1985-86 school year. Kukor, 148 Wis. 2d at 475 nn.1-2. In 1985-86, the distributed approximately $1.142 billion in state aid. 148 Wis. 2d at n.2 (citing Basic Facts (1986-87), Department of Public Instruction at A-6, A-7). state Kukor, Wisconsin By 1997-98, in comparison, the state appropriated approximately $3.804 billion. 23 We also note that the state appears to fund "poor" school districts much more than it funds "wealthy" districts. The circuit court cited some excellent comparisons of the amount of state aid per pupil given to "wealthy" and "poor" school districts. For instance, according to the equalization aid estimate for 1996-97, Mequon-Thiensville (a "wealthy" district) received $724.61 in equalization aid, which was 10.6% of its $6,840.53 costs per pupil. In comparison, Antigo (a "poor" district) received $4,642.05 in equalization aid, which was 77.2% of its $6,014.20 costs per pupil. This is but one example of the more substantial state aid given to "poor" districts than to "wealthy" districts. 46 No. 97-3174 Elementary and Secondary Sch. Aids at 4, Table 3. Between 1987 and 1998, state aid increased by at least 4.9% every fiscal year, and often much more. Id. For instance, from the 1995-96 fiscal year to the 1996-97 fiscal year, state aid increased by 31.8%.24 Id. In contrast, the Consumer Price reflected increases between 2.3% and 5.4% per year. ¶75 revenue The Petitioners limits particular, revenue are the limits also contend unconstitutional Intervening most that under the art. affect only Id. statutory X, § 3. In argue that districts with Plaintiffs-Petitioners severely Index school decreasing student populations, or those with many high needs students. ¶76 (Intervening Pl.-Pet'r's Br. at 47.) We do not agree that revenue limits adversely affect the constitutionality of the school finance system. Revenue limits were included in the 1848 statutes, as we noted earlier. Revenue limits do not absolutely bar school districts from increased spendingthey merely require a voter referendum to do so. Moreover, Wis. Stat. § 121.91(4)(f) and (6), as created by 1997 Wis. Act 27, §§ 2902v and 2903g, minimize the impact of revenue limits on school districts with declining enrollments by adjusting limits the were method intended for counting pupils. Finally, to provide property tax revenue relief, and actually have an equalizing effect, because districts that spend 24 The state is now committed to funding two-thirds of the school districts' cost of education. 1997 Wis. Act 27. 47 No. 97-3174 less can increase their spending by a greater percentage without first seeking a referendum. ¶77 Finally, we that are Plaintiffs-Petitioners note the cases distinguishable cited on by the the facts. Brigham is distinguishable because the Vermont Constitution does not contain districts. a provision requiring Brigham, 692 A.2d at 392. local funding of school In DeRolph, 677 N.E.2d at 742-745, the Ohio Supreme Court concluded that many districts in the Ohio public school system were wholly unable to provide the basic resources therefore, the Constitution. resources necessary finance to system educate was in the students, violation of the and Ohio This is not the case in Wisconsin where the basic are being provided. The school finance system at issue in Roosevelt relied heavily on local property taxation and "only partial attempts at equalization." 815. Roosevelt, 877 P.2d at Again, the state funds two-thirds of the school districts' expenditures in Wisconsin equalization aid. local property and Certainly, taxation employs this or a is not three levels of heavy reliance on attempt at half-hearted equalization. ¶78 beyond a In sum, we conclude the Petitioners have not proved reasonable doubt that system violates art. X, § 3. school district to provide the statutory school finance The state adequately funds each for a basic education, and any disparity between districts is a result of district revenueraising capacity above the state's guaranteed tax base. The right to an equal opportunity for a sound basic education has 48 No. 97-3174 not been shown to be violated by the current school finance system. IV ¶79 system We now violates address equal whether protection Wisconsin Constitution.25 the current under art. school I, § 1 finance of First, we must determine whether to apply a strict scrutiny review or a rational basis review. Petitioners urge us to the apply a strict scrutiny standard The of review. ¶80 Equal protection guarantees the "right to be free from invidious discrimination in statutory classifications and other governmental activity."26 Jackson, 218 Wis. 2d at 901 (quoting Harris v. McRae, 448 U.S. 297, 322 (1980)). We apply a strict scrutiny review of a statute when the legislative classification interferes with a fundamental right or is created on the basis of a suspect criterion. State v. Annala, 168 Wis. 2d 453, 468, 484 N.W.2d 138 (1992). If a fundamental right or a suspect 25 Article I, § 1 of the Wisconsin Constitution states: All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed. 26 We treat the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and the Wisconsin Constitution as equivalent. Jackson v. Benson, 218 Wis. 2d 835, 900-01 n.28, 578 N.W.2d 602 (1998). As such, we refer to cases analyzing either the Fourteenth Amendment or art. I, § 1 of the Wisconsin Constitution. 49 No. 97-3174 class is not statute's involved, then classification a on the reviews "rationally identified by the legislature." based court Constitution Id. either whether furthers a the purpose Fundamental rights are explicitly or implicitly. State v. Martin, 191 Wis. 2d 646, 652, 530 N.W.2d 420 (Ct. App. 1995) (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973)). ¶81 We fundamental education, acknowledge right and to that that an equal right Wisconsin Constitution.27 District v. children opportunity is based on for art. a have sound X, § 3 a basic of the Kukor, 148 Wis. 2d at 496 (quoting Busé, 74 Wis. 2d at 567). School Wisconsin However, in San Antonio Independent Rodriguez, 411 U.S. 1, 24 (1973), reh'g denied, 411 U.S. 959 (1973), the United States Supreme Court held that the Equal Protection Clause does not require "absolute equality or precisely equal advantages" on the basis of wealth. We also have stated that while the right to an equal opportunity for education is fundamental in Wisconsin, absolute equality in per-pupil expenditures is not mandated. Kukor, 148 Wis. 2d at 496. ¶82 The Petitioners argue that we should review their equal protection claim relating to financial disparities between districts under strict scrutiny. 27 They argue that since this We note that children do not have a fundamental right to an education under the United States Constitution. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973). 50 No. 97-3174 court has recognized the equal opportunity for education as a fundamental right, strict scrutiny applies. ¶83 We carefully distinguish between the fundamental right to an equal opportunity for a sound basic education under art. X, § 3 and the wealth-based arguments the Petitioners make. In other words, the fundamental right to an equal opportunity for a sound basic education does not rest on any classification based on wealth. In Kukor we addressed a similar argument. Citing Rodriguez, we concluded that a rational basis standard should be applied "because the rights at issue in the case before the court are premised upon spending disparities and not upon a complete denial of educational opportunity within the scope of art. X."28 Kukor, 148 Wis. 2d at 498. See also Skeen, 505 N.W.2d at 316-17 (citing our approach in Kukor with approval). Since the Petitioners' argument rests on wealth-based classifications and not classifications based on art. X, § 3, we apply the rational basis test. 28 In Papasan v. Allain, 478 U.S. 265, 286 (1986), the United States Supreme Court again analyzed whether a school funding scheme violated equal protection. The Court differentiated allegations that "petitioners have been denied a minimally adequate education," and the allegations of disparity in distributing funds. Id. The court found that the petitioners had not alleged the denial of a minimally adequate education because "they [did] not allege that they receive[d] no instruction on even the educational basics." Id. Similarly in this case, the Petitioners have not alleged a violation of equal protection under art. I, § 1, since they do not allege that students lack even a basic education. Their arguments, while couched in terms of adequacy, actually allege financial disparities. 51 No. 97-3174 ¶84 Under the rational basis test, we give great deference to legislative classifications. Tomczak v. Bailey, 218 Wis. 2d 245, 264, 578 N.W.2d 166 (1998). We must "'locate or . . . construct, if possible, a rationale that might have influenced the legislature determination.'" and that reasonably upholds the legislative Id. (quoting Sambs v. City of Brookfield, 97 Wis. 2d 356, 371, 293 N.W.2d 504 (1980)). ¶85 The legislative classifications set forth in Wis. Stat. ch. 121 are rationally related to the purpose of educating Wisconsin's children. The school financing system provides all school a districts with three-tiered shared cost guaranteed system, tax which base. was Moreover, implemented the after Kukor was decided, is specifically designed to narrow per pupil spending disparities between districts. The school financing system seeks to equalize the tax base, not rate, of the school districts. Elementary and Secondary Sch. Aids at 10. Arguably, the system of taxation may actually penalize wealthier school districts because it is designed to tax districts that spend at a higher level. See id. (stating that "[a] school district that spends at a higher per pupil level than another will continue to face a higher tax rate unless the district is not subject to the formula because its guaranteed tax base.") local tax base exceeds the state's As such, the three-tiered classification system is rationally related to the legitimate governmental end of providing an equal opportunity for a sound basic education. 52 No. 97-3174 ¶86 Finally, the legislative classifications set forth in Wis. Stat. §§ 121.91 and 121.92 relating to revenue limitations pass the rational basis test. We agree with the Respondents that revenue limitations "serve the legitimate state purpose of reducing the risk that local school boards would use the additional state aid to increase local spending by keeping tax rates as high as they had been before the infusion of additional state aid," instead of replacing local property taxes. (Resp't's Br. at 85. V ¶87 A majority of this court holds that Wisconsin students have a fundamental right to an equal 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. The legislature opportunity for 118.30(lg)(a) has a and articulated sound basic 121.02(L) a standard education (1997-98) as in the for Wis. equal Stat. opportunity §§ for students to be proficient in mathematics, science, reading and writing, geography, and history, and 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. An equal opportunity for a sound basic education acknowledges that students and districts are not fungible and takes into account districts with disproportionate numbers of disabled students, economically disadvantaged students, and students with limited English language skills. 53 So No. 97-3174 long as the legislature is providing sufficient resources so that school districts offer students the equal opportunity for a sound basic education as required by the constitution, the state school finance system will pass constitutional muster. ¶88 We conclude that the school finance system articulated in Wis. Stat. ch. 121 is constitutional under both art. X, § 3 and art. I, § 1 of the Wisconsin Constitution. The Petitioners have not shown beyond a reasonable doubt that the current school financing system violates either art. X, § 3, or art. I, § 1, and therefore, they have not made out a prima facie case in support of their motion for summary judgment. ¶89 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON, Justice WILLIAM A. BABLITCH, and Justice ANN WALSH BRADLEY join in the standard we have set forth in ¶3, ¶51, and ¶87. I am further authorized to state that Justice JON P. WILCOX, Justice DAVID T. PROSSER, and Justice DIANE S. SYKES join in our decision as to the constitutionality of the present school finance system. By the Court. The decision affirmed. 54 of the court of appeals is No. 97-3174 55 No. 97-3174.jpw ¶90 JON P. WILCOX, Petitioners' J. constitutional (concurring). issue for this court. challenge I presents agree a that the justiciable 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. ¶91 majority However, opinion I sets do not forth agree for with examining the test whether that the 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. ¶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)). ¶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. 1 No. 97-3174.sa ¶94 SHIRLEY S. ABRAHAMSON, part and dissenting in part). CHIEF JUSTICE (concurring in The majority opinion written by Justice Crooks establishes in paragraphs 3, 51 and 87 a standard for interpreting the uniformity provision of article X, § 3 of the Wisconsin Constitution. I join only paragraphs 3, 51, 87 and footnote 2 of Justice Crooks' opinion.29 In contrast to the 29 The defendants at oral argument, unlike the plaintiffs, the plaintiff-intervenors, the circuit court and the court of appeals, did not request the court to set a standard. The defendants' position at oral argument, like that of the concurring justices, Justices David T. Prosser and Diane S. Sykes, was that the courts have no role in interpreting article X, § 3 of the Wisconsin Constitution; article X, § 3 speaks only to the legislature. The suggestion that the court should not interpret the uniformity provision of article X, § 3 is contrary to the language of the constitution and this court's long-standing precedent. "The specific constitutional guarantee of education flows from the provision that the legislature provide for the establishment of district schools. Since the [legislature's] power to establish schools existed without a specific grant as an inherent function of state government . . . the clear purpose of article X, § 3, was to compel the exercise of the power to the extent designated." Zweifel v. Joint Dist. No. 1, 76 Wis. 2d 648, 658, 251 N.W.2d 822 (1977). 1 No. 97-3174.sa majority, however, I would remand the cause the to courts the circuit court. ¶95 Neither the parties nor have had the opportunity to consider the state school finance system under the constitutional standard set forth in the majority opinion. Both the circuit court and court of appeals suggested evidence that might be presented in this case. other The majority opinion also points to evidence that is lacking in the record. See majority op. at ¶¶ 71, 72. After establishing a standard of A "fundamental principle" of state constitutional law is that the Wisconsin Constitution, in contrast with the U.S. Constitution, is not a grant of, but a limitation upon, legislative power. "The purpose [of article X, § 3] was not to grant a power to the legislature to establish schools, for this power would exist without grant, but to compel the exercise of the power to the extent designated." Manitowoc v. Manitowoc Rapids, 231 Wis. 94, 97-98, 285 N.W. 403 (1939). See also Busé v. Smith, 74 Wis. 2d 550, 564, 247 N.W.2d 141 (1976) ("the search is not for a grant of power to the legislature, but for a restriction thereon"); State ex rel. Dudgeon v. Levitan, 181 Wis. 326, 339, 193 N.W. 499 (1923); Pauly v. Keebler, 175 Wis. 428, 439, 185 N.W. 554 (1921); Outagamie County v. Zuehlke, 165 Wis. 32, 36, 161 N.W. 6 (1917). Article X, § 3 is "a limitation upon the broad power of the state to educate its citizens through the establishment and operation of schools. The limitations are precisely stated: District schools, uniformity, and free tuition for certain ages." Zweifel, 76 Wis. 2d at 658. I agree with the majority opinion that the task of interpreting the uniformity provision of article X, § 3, falls on the courts. If the function of interpreting the Wisconsin Constitution were left to the legislature, there would not only be a violation of the separation of powers doctrine, but also the legislature would be empowered to amend the constitution without abiding by the constitutional requirements for amendments. 2 No. 97-3174.sa constitutional interpretation the court should afford the parties an opportunity to develop additional facts, if needed, in the circuit court. Accordingly, I would remand the cause to the circuit court for further proceedings. ¶96 the In remanding, however, I note my concerns and those of circuit court, that the state failing in certain respects. school finance system is The state school finance system may be failing to provide each of the property-poor districts with the necessary resources to provide all students with the opportunity for a sound basic education. The state school finance system may be providing inadequate resources to those districts with disproportionately large numbers of high needs students. The parties should have a chance to present evidence and argument relating to the standard set forth today. I ¶97 the The framers of the Wisconsin Constitution recognized importance governing Creating the a considered tasks.30 of establishment system to education be of among free the when they created and funding of and uniform public most essential article public of schools. schools the X was framers' Throughout the 1846 and 1848 conventions, the framers expressed the desire that all of Wisconsin's students, rich and poor, would be educated together in the public schools.31 30 For Conrad E. Patzer, Public Education in Wisconsin at 18 (1924). 31 See The Convention of 1846 at 574-75 (Milo M. Quaife, ed., 1919). 3 No. 97-3174.sa example, the contribute requirement to school in funding article was X, § 4 included that localities "directly for the advantage of the poor," because it increased the commitment to local schools. Without local support "the common schools languished, and select schools rose on their ruins."32 ¶98 The sweeping and revolutionary goals of article X were explained by Eleazor Root, the state's first superintendent of public instruction and a member of the education committee at the second constitutional convention. Root explained that the purpose permanently of benefits of article a free X was and to secure comprehensive public to all school the system. "None are excluded,  none are condemned by the accidents of birth or fortune to grow up in ignorance. The state acts the part of a wise and affectionate parent, and dispenses its bounty with an impartial hand to all its children . . . [and] seeks to train them citizens."33 up so as to render them useful and honorable In State ex rel. Zilisch v. Auer, 197 Wis. 284, 289-290, 221 N.W. 860 (1928), the court summarized the intent of the framers as follows: It is significant that [article X, § 3] applies to the "establishment of district schools,"  not to the establishment of school districts . . . . An examination of the debates in the conventions that framed our present constitution and the constitution 32 Kukor v. Grover, 148 Wis. 2d 469, 489, 436 N.W.2d 568 (1989) (quoting Journal and Debates, Constitutional Convention at 335 (1847-48)). 33 Report of the State Superintendent at 13 (Dec. 31, 1849) in Plaintiff-Intervenors Appendix at 321. 4 No. 97-3174.sa of 1846 (which contained a similar provision) discloses that the members of those conventions, when 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. ¶99 Article X framers intended to finance a character school read require system throughout as the a whole the that that the legislature to create and equitable and uniform in is state demonstrates and that provides equal educational opportunity for all students. ¶100 The constitution "virtually declares that public education is a state power and function, based upon the wellestablished principle that the whole state is interested in the education of the children of the state and that this function must be exercised by the people as a whole . . . ."34 The framers believed that the creation of free and uniform public schools was "the only system on which we could depend for the preservation of our liberties."35 The legislature has recognized that "education is a state function" and that "the state must guarantee that a basic educational opportunity be available to each pupil."36 34 Conrad E. Patzer, Public Education in Wisconsin at 37 (1924). 35 Kukor, 148 Wis. 2d at 488 (quoting Journal and Debates, Constitutional Convention at 238 (1847-48)). 36 Wis. Stat. § 121.01 (1997-98). 5 No. 97-3174.sa II ¶101 The plaintiffs focus their claim on the inequities in the per capita student funds caused by the failure to provide sufficient equalization aid.37 The plaintiffs focus on the "equity approach": they seek to eliminate the disparity among school districts by equalizing available resources, while recognizing that individual school districts should be able to spend more for their children's education. inequalities in the system stem from a They argue failure to that adjust adequately for the disparity in the property tax base. ¶102 The intend the framers school of the districts' Wisconsin boundaries Constitution to be did not uniform and therefore could not have envisioned the school districts' taxing and spending capacity to be uniform, since taxing and spending ability and school district boundaries are related.38 But the state school finance system must provide districts and schools 37 The 181 plaintiffs in this case include school districts, parents, students and taxpayers. The following non-parties have filed briefs in this case: A coalition of state representatives and senators, the Mayor of Milwaukee, the ACLU of Wisconsin, the Council of Great City Schools, the Institute for Wisconsin's Future together with the Wisconsin Coalition for Advocacy, the Wisconsin Parent Teachers Association, Governor Tommy Thompson, and the Fair Air Coalition. 38 The requirement of uniformity applies to the districts after they are formed, to the character of the instruction given, rather than to the means by which the districts are established and their boundaries are fixed. See Larson v. State Appeal Bd., 56 Wis. 2d 823, 827, 202 N.W.2d 920 (1973); Joint Sch. Dist. v. Sosalla, 3 Wis. 2d 410, 420, 88 N.W.2d 357 (1958); State ex rel. Zilisch v. Auer, 197 Wis. 284, 289-90, 221 N.W. 860 (1928). 6 No. 97-3174.sa with the funding needed to meet the constitutional mandate. The record, which is undisputed, shows that school districts vary widely in the amount spent per student (ranging from $13,534 to $5,301), in the ability to raise dollars for every mill levied, and in the actual levy rates. ¶103 The Association plaintiff-intervenors, Council and a number the of Wisconsin teachers Education and school administrators from school districts across the state, assert that the state school finance system is unconstitutional because it does not allow districts with significant numbers of high needs students to offer these students an adequate educational opportunity. economically High needs students include disadvantaged children and skills in the English language. disabled children children, with limited The State's brief concedes, as it must, that it probably costs more per child to educate high needs students. ¶104 A similarly but it non-uniform education situated students can also result can and school from treating result from districts differently, differently students and school districts in the same way.39 treating situated Consequently, 39 In his dissent in Kukor, 148 Wis. 2d at 516-17, 525, which I joined, Justice William A. Bablitch wrote: The fundamental flaw of the state formula is that it distributes dollars without regard to educational needs. It assumes that every child in this state begins his or her educational journey from the same starting point. If all children began that journey from the same starting point, then the formula would provide no constitutional objection: every child would start with the same opportunity. That may well have 7 No. 97-3174.sa to ensure that all students have an opportunity for a sound basic education, school districts with a disproportionate number of high needs students must be provided with extra financial resources to meet the standard that is constitutionally required. ¶105 The plaintiff-intervenors argue that the current state school finance system fails to account for the distinct needs of school districts that have a disproportionate number of high needs students, so that these school districts are unable to provide educational opportunities that are sufficiently uniform or basic.40 For example, the plaintiff-intervenors emphasize, and the State admits, that the State reimburses districts for only approximately 39% of the cost of educating disabled been the reality, with few exceptions, in 1848. It is not even close to reality today. The result is that a significant number of school children in this state are denied an equal opportunity to become educated people. . . . However, a close inspection of the record reveals that while some special needs of "exceptional" students are being met in overburdened school districts, such special needs programs are draining resources and staff from regular programs of instruction. 40 The plaintiff-intervenors state the issue in the Reply Brief at 16 as follows: [W]hether the combination of revenue limits and declining categorical aids have prevented some of Wisconsin's children from receiving the basic education and equal educational opportunity to which they are constitutionally entitled. 8 No. 97-3174.sa students speaking and 25% (LES) disadvantaged of the cost students. students, of With the state educating regard school limited to English- economically finance system has provided no extra resources on a statewide basis.41 ¶106 Because address the the costs state of plaintiff-intervenors school educating argue that finance high system needs schools or fails students, school to the districts with a disproportionate number of such students are not able to provide anywhere near the educational schools or school districts.42 system especially fails opportunities of other While the state school finance property-poor school districts with 41 The plaintiff-intervenors note that the State has implicitly accepted that these children require more resources by recently instituting the "SAGE" program (Student Achievement Guarantee in Education) on a pilot basis, which is aimed at reducing class size in high-poverty schools. PlaintiffIntervenors Brief at 14. 42 One of the biggest problems with the current state school finance system, according to the plaintiff-intervenors, is the recently adopted revenue limits. Revenue caps or limits restrict the amount of revenue a district can raise from state aid and local property taxes. See Wis. Stat. § 121.90 et seq. The base spending limit is calculated from a school district's spending in the 1992-93 school year, and a statutorily defined flat rate spending increase is allowed each year. The spending increase was $206 per student in 1996-97. A local school district may exceed these revenue limits only by a voter referendum. Plaintiff-Intervenors Brief at 10-11. The plaintiff-intervenors argue that these revenue limits contribute heavily to a state school finance system that is arbitrary and refuses to take into account high needs students. These limits are based, according to the plaintiff-intervenors, on the misguided assumptions that all students cost the same to educate and that educational needs do not change over time. 9 No. 97-3174.sa disproportionate numbers of high needs students, the plaintiffintervenors assert that even property-rich school districts that have disproportionate numbers of high needs students, such as Madison, are unable to offer educational opportunities that are uniform with the rest of the state.43 School districts with large numbers of high needs students may have to divert funds to pay for the higher costs associated with the high needs students, leaving the other students at a disadvantage.44 ¶107 Wausau, for example, as a result of Hmong resettlement, has a kindergarten enrollment of 34% LES students. Because of the high costs associated with educating such students, only a small portion of which is reimbursed by the state, the shortages. Wausau education community faces severe funding Wausau has been forced to cut staffing and is unable to implement certain state-mandated programs.45 43 For a discussion of the impact of high needs students on Madison's school district, see Gia Weier, Heading Toward A Crisis?, The Isthmus, May 19, 2000, at 5 (discussing Madison's growing problem in providing adequately for its disabled students while maintaining a strong curriculum for other students). 44 For challenges to state school finance systems based on educational equality and educational adequacy, see, e.g., Rose v. Council for Better Education, 790 S.W.2d 186 (Ky. 1989); McDuffy v. Secretary of the Executive Office of Education, 615 N.E. 2d 516 (Mass. 1993); Pauley v. Kelly, 255 S.E.2d 859 (W. Va. 1979); Peter Enrich, Leaving Equality Behind: New Directions in School Finance Reform, 48 Vand. L. Rev. 101 (1995). 45 See Plaintiff-Intervenors Brief at 38-40 and Appendix at 271-78. 10 No. 97-3174.sa ¶108 In Milwaukee the school district suffers the combined effects of being a relatively property-poor district along with having a disproportionate number of high needs students. According to the briefs, which are not disputed, approximately 70% of Milwaukee's students are economically disadvantaged to the extent that they qualify for a free or reduced-cost lunch. Over 12,000 of Milwaukee's students are reported as homeless, constituting more than 10% of the student population.46 Milwaukee educates more than 25% of the state's LES students and more than 36% of the state's students living in poverty. addition, Milwaukee asserts disadvantage of being richest school that it a surrounded by districts. Twelve has number of the the of In comparative the thirty-four state's school districts that the State concedes are "unequalized," in that they have a disproportionately large amount of resources with which to fund their schools, are within commuting distance of Milwaukee. A non-party brief filed by Milwaukee Mayor John Norquist asserts that these "unequalized" rich school districts drain students, teachers, and resources from the comparatively underfunded Milwaukee schools.47 ¶109 The evidence submitted shows that some Milwaukee school facilities are old and decrepit, that staffing shortages exist, and that vocational education and other programs have 46 See American Civil Liberties Union Plaintiff-Intervenors Appendix at 282-85. 47 See Mayor Norquist Brief at 6-8. 11 Brief at 9-10; No. 97-3174.sa been reduced significantly because of financial limitations. Milwaukee students scored dramatically below the state averages in the 1997-98 administered example, by only proficient Wisconsin the 26% or Student Department of of Assessment Public System test Instruction. For Milwaukee tenth-graders score the advanced on reading achieved a examination, compared with the statewide average of 63%.48 ¶110 The plaintiff-intervenors argue that the statewide tests offered by the Department of Public Instruction in the fourth, eighth and tenth grades show that LES students, economically disadvantaged students and disabled students have drastically lower rates of achieving a level of "proficiency or above."49 ¶111 Although differences in the defendants' educational brief opportunities de-emphasizes offered to the students around the state and characterizes the plaintiffs' evidence as anecdotal, the defendants were not able to confirm or dispute school district specific offerings, circuit physical court districts are allegations plants, suggests having concerning staffing other items. property-poor that and at least some difficulty with providing course The adequate educational opportunities to their students. ¶112 The evidence, according to the circuit court, suggests that the school districts' inability to raise funds has resulted 48 See American Civil Liberties Union Brief at 10. 49 See Plaintiff-Intervenors Appendix at 324-325. 12 No. 97-3174.sa in increased partially class size condemned with classes buildings, sometimes basements, taught storage in rooms, hallways, auditorium stages, unused shower facilities, elevator shafts and janitorial closets. The circuit court found that maintenance of facilities is often delayed, resulting in leaking roofs, antiquated heating and cooling systems, lighting and water running through the walls. circuit court outdated and electives, found a that lack computer of in some options technology and Furthermore, the districts in inadequate advanced textbooks math, extracurricular are science, activities exists. ¶113 The circuit court also found that school districts that spend more per student are able to provide their students with more opportunities in a variety of areas while students in property-poor school districts do not have equal educational opportunities. ¶114 Judge Charles P. Dykman, in his concurrence in the Court of Appeals, concluded from the record that "lower spending school districts are laboring under very difficult conditions." ¶115 I recognize that the State provides funds to educate limited English speaking students and disabled students in the form of categorical aids. Although this aid reimburses the school districts for only a portion of the cost of educating these high needs students, the circuit court on remand would determine whether this additional aid is sufficient to enable all school districts with the resources to provide students with an equal opportunity for a sound basic education. 13 No. 97-3174.sa ¶116 Although I realize that equal dollars do not necessarily translate to equal educational opportunity, it is clear that substantial funding differences affect students' opportunities to learn. may significantly Money is not the only variable affecting educational opportunity, but it is one that the legislature can equalize. ¶117 Both the circuit court and court of appeals acknowledged that they were unable to adequately adjudicate this case because of the lack of a developed standard from this court regarding the requirements of article X, § 3. I would remand the cause to the circuit court for further proceedings in light of the standard the majority opinion sets forth in the present case to determine whether the defendants have met their constitutional obligation. ¶118 The disparities circuit in unacceptable court would determine among school districts funding level of inequality in whether result educational the in an opportunity. The circuit court would also decide whether those students in property-poor disproportionate districts numbers or of in high school needs districts students are with offered unacceptably diminished educational opportunities. ¶119 If the plaintiffs' and plaintiff-intervenors' proof is sufficient, the circuit court would not be limited to choosing between declaring the entire state constitutional or unconstitutional. school finance system It may be that the state school finance system is constitutionally acceptable for some school districts, but not for others. 14 No. 97-3174.sa ¶120 If the circuit court were to declare all or part of the present state school finance system unconstitutional, it would not be up to the circuit court to adopt a state school finance system that constitutional. the Courts circuit interpret court the considers to constitutional be mandate. As the representatives of the people, the legislature should craft the state school numerous ways a finance system. legislature might There design a are doubtless constitutionally acceptable state school finance system. ¶121 Any declaration of unconstitutionality would cast no aspersion on the legislative or executive branches of government, which assuredly have worked very hard to craft our current educational system. The legislature has appropriated vast sums of money for education in this state. branch has worked diligently to improve The executive the students' proficiency. ¶122 The citizens of legislative the executive recognize state and the branches high cost and of the further improving the educational system, but they also realize that the cost of not constitutional improving mandate the will educational be much system higher. to As meet Derek the Bok, former president of Harvard University, wisely stated, "If you think education is expensive, try ignorance." ¶123 I further would remand proceedings. the For cause the separately. 15 to reasons the circuit set forth, court for I write No. 97-3174.sa ¶124 I am authorized to state that Justices BABLITCH and ANN WALSH BRADLEY join this opinion. 16 WILLIAM A. No. 97-3174.wab ¶125 WILLIAM A. BABLITCH, J. (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. justices, including majority opinion this of writer, Justice joining Crooks that that With three part of the articulates a constitutional standard for education, the guarantee of an equal opportunity for education finally has teeth. ¶126 Unfortunately, a different majority concludes that the present system meets constitutional muster. with the concurrence/dissent of Chief I disagree. Justice I agree 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. ¶127 Accordingly, I join paragraphs 3, 87, footnote 2, and Section II of the majority opinion, concurrence/dissent of the Chief Justice.50 50 and join the I write to more fully The standard we adopt today recalls the standard which I urged in my dissent 11 years ago in Kukor v. Grover, 148 Wis. 2d 469, 520-21, 436 N.W.2d 568 (1989), joined in by then-Justice Shirley S. Abrahamson and Chief Justice Nathan S. Heffernan: 1 No. 97-3174.wab document the condition of education in this state as shown in the circuit court. This evidence is not in dispute. ¶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 financial disparities among school districts. further shows great As a result of all of this, it cannot come as a surprise that tens of thousands of [The constitutional requirement] has generally been defined as embracing broad educational opportunities needed to equip children for their roles as citizens, participants in the political system, and competitors in both the labor market and the market-place of ideas. [citations omitted]. . . . I conclude that the mandate given by the uniformity clause in art. X, sec. 3 of the Wisconsin Constitution is that the state provide a character of instruction in the state schools such that all children are provided with a uniform opportunity to become equipped for their future roles as citizens, participants in the political system, and competitors both economically and intellectually. In short, the state must provide a character of instruction that allows each child an opportunity to become an educated person. It was a standard based not on financial disparities but on the adequacy of the education provided. I read adequacy of education as the focal point of our newly adopted standard. 2 No. 97-3174.wab children across the state fail to meet even basic competency in reading, writing, mathematics, language, science, social studies and 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. ¶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. ¶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. ¶131 Several distinct categories illustrate the systemic problems in education. ¶132 Plants and equipment. Undisputed affidavits in the record illustrate that conditions in many districts across the state are hardly conducive deferred, if done at all. to education. Maintenance is Leaks, cracks, obsolete lockers go 3 No. 97-3174.wab unrepaired. Libraries are inadequately stocked. where they exist, are largely out of date. Computers, School buses are run- down and accordingly more expensive to fix. As buses dwindle, transportation One of students takes more time: district has children traveling 90 minutes, leaving home at 6:50 a.m. and arriving to school at 8:20 a.m. ¶133 House trailers, storage rooms, hallways, shafts, and the like are used for classrooms. elevator In one school science class is held in a trailer, but has no science 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. ¶134 Many schools are unable to provide facilities that are accessible to people with disabilities. Playgrounds are unsafe, uninsured, and unequipped. ¶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 courses eliminated. Advanced 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. 4 No. 97-3174.wab Career counseling nonexistent. in many schools is severely limited or Funds for training staff in computer technology are unavailable, which together with inadequate equipment make it impossible to teach basic computer skills. ¶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. fall into three, sometimes These students generally 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. ¶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. The communities of Wausau and Milwaukee are striking examples of this problem. ¶138 Wausau has experienced a significant increase in the number of Hmong students, approximately 22 percent in the last ten years, and increasing steadily. is 34 percent significant. LES students. Communications The kindergarten enrollment The between language are and student, and between teacher and parent, are severely limited. Accordingly, 5 teacher problems No. 97-3174.wab 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. $2.5 million. Direct costs associated with these needs exceed 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. ¶139 Wausau is trapped in a vicious cycle. its general program quality to make up for As it reduces 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. ¶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 6 No. 97-3174.wab reduced lunch. homeless. problems. Over 12,000 of their students are reported as Poverty undisputedly leads to distinct learning As with Wausau, the needs of these students inevitably impact on regular educational programs. ¶141 Financial disparities. The record, which is undisputed, shows inter alia the following financial disparities: 1. School districts vary widely in the amount spent per pupil, ranging from $13,534 to $5301. 2. The levy rates vary widely, ranging from $4.71 to $20.63 per thousand. 3. varies widely. The ability to raise dollars for every mill levied 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. ¶142 The effects of these disparities are many. To name but two: 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. 7 No. 97-3174.wab 2. In some like-size districts, which spend the same, the tax burden on the taxpayer is significantly disparate. For example, per pupil. Beloit and Wauwatosa spend approximately $8500 Yet Beloit must tax their taxpayers $2.17 per thousand more than Wauwatosa to raise the same amount of dollars. ¶143 The circuit court found that this evidence was undisputed. Plaintiffs assert that the system's disparities deny students in property-poor opportunities. districts equal educational Based on this record it is hard to disagree. But without a standard, the circuit court was powerless. ¶144 Statewide testing. One measure of student achievement is the Wisconsin Student Assessment System (WSAS) Knowledge and Concepts Examinations at grades four, eight, and ten. scores were reported in four general proficiency Student categories: advanced, proficient, basic, and minimal performance. ¶145 "Advanced" means achievement beyond mastery, in depth understanding. ¶146 "Proficient" means competent, including mastery of the important knowledge and skills. ¶147 "Basic" means somewhat competent, mastery of most of the important knowledge and skill, but evidence of at least one major flaw in understanding. 8 No. 97-3174.wab ¶148 "Minimal Performance" means limited in content, evidence of major misconceptions or gaps in knowledge and skill basic to progress. ¶149 The scores achieved leave serious questions as to the adequacy of education achieved by tens of thousands of children across the state. ¶150 Based upon this testing, in the fall of 1996 the Wisconsin Department of Public Instruction estimated51 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 Category." 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. ¶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. 51 These statewide estimates are based on samples developed by CTB/McGraw Hill under contract with DPI. 9 No. 97-3174.wab ¶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. ¶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, students in "Advanced" although fourth levels, 74 grade only percent were 28 of either percent the at of Proficient students were at those levels. English the the proficient "Proficient" Limited or English Seventy-nine percent of the students without disabilities were at those levels, while only 31 percent of the disabled students were at those levels. ¶154 These wide disparities continue through the grades tested, and cut across mathematics, language, arts, science, and social studies. ¶155 It is shaming to this great state. ¶156 By a slim majority, this court today decides that the present system is constitutionally acceptable. conditions outlined inevitably get above worse. If remain the unattended, legislature However, if the the does system will nothing, the children will be back demanding their constitutional guarantee. 10 No. 97-3174.wab ¶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." 11 97-3174.dtp ¶158 DAVID T. PROSSER, J. (concurring in part; dissenting The principal issue in this case is stated by the in part). petitioners: "Does the Wisconsin school finance system violate the Uniformity Provision of the Education Article, article X, § 3 of the Wisconsin Constitution?" holds that it does not. otherwise. interpret A majority of the court Three justices, however, would rule Moreover, these three justices and Justice Crooks art. X, § 3 in a manner that encourages future litigation and will plunge the judiciary into the legislature's domain. ¶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. I ¶160 A majority of the court embraces the proposition that art. X, students § 3 of the Wisconsin "a fundamental sound basic education. right to Constitution an equal gives Wisconsin opportunity for a An equal opportunity for a sound basic education is one that will equip students for their roles as citizens and personally." enable them to succeed economically Majority op. at ¶¶ 3, 51, 87. and Chief Justice Abrahamson's concurrence/dissent at ¶ 94. ¶161 Constitutional constitutional text. principles must be rooted in Four members of the court maintain that 1 97-3174.dtp the standard they embrace is rooted in art. X, § 3. mistaken. They are 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. Our 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." ¶162 First, the text emphasizes the term "district schools" not "school districts." terms are synonymous. X, § 3 authorizing instruction There is danger in assuming that these They are not. the the repeated release term of A 1972 amendment to art. students "district for religious 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." ¶163 Section 3 uses the term "district schools" followed by phrase "such schools" instruction shall be instruction "outside the and allowed the the clause therein," district "no sectarian although religious schools" is permitted (emphasis added). ¶164 By contrast, art. X, §§ 2 and 5 both employ the term "school district." These sections 2 also were part of the 97-3174.dtp original constitution. Article X, § 2 refers to "support and maintenance schools, of common 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 the is precise in avoiding state payments from school fund to individual schools. ¶165 A fair reading of these sections suggests that "school districts" are political are literally schools. entities, whereas "district The legislature distributes state aid to the political entitiesto the school districts. it is troublesome to schools" base a cause of action Consequently, that school districts must be made uniform on a section of the constitution, art. X, § 3, that does not apply to them. ¶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. ¶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." "equal." "As nearly uniform as practicable" does not mean "As nearly uniform as practicable" is not as strong or uncompromising as the storied phrase "equal protection of the 3 97-3174.dtp law." The words in the text suggest a goal; they do not impose a rule. ¶168 Article X, § 3 may be compared to art. IV, § 23 of the Wisconsin provides Constitution, in part: which "The addresses legislature town shall government establish but and 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 court has declared that the "uniformity IV, § 23] absolute has been uniformity consistently in the practical uniformity. . . . interpretation.52 requirement [in art. interpreted system of This not government, to require but only [T]he framers of the constitution recognized that some latitude had to be provided to enable the 52 Jack Stark summarizes the litigation under this section in his book, The Wisconsin State Constitution, A Reference Guide at 100 (1997): According to this section "the principal organizational features of town government must be the same," but, as the section specifies, only "practical" uniformity is required, so general enactments that make reasonable distinctions among towns are constitutional [State ex rel. Wolf v. Town of Lisbon, 75 Wis. 2d 152, 161-62, 248 N.W.2d 450 (1977)]. As to reasonable distinctions, this section "provides for the exercise of different powers by the boards of different towns, when there is anything in a town which calls for the exercise of such different or additional powers" [Land, Log & Lumber Co. and others v. Brown and others, 73 Wis. 294, 40 N.W. 482 (1889)]. That is, a law that applies throughout the state and makes reasonable distinctions based on differences among towns does not violate this section [Thompson v. Kenosha County, 64 Wis. 2d 673, 221 N.W. 845 (1974)]. 4 97-3174.dtp 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). II ¶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 geographic in area. terms School of population districts or have enrollment been created or 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). common school districts, unified school districts. union high school Belleville, Compensation among 76 the Wis. 2d school These Zweifel v. Joint Dist. 648, 251 districts employee benefits are not uniform. and Not all school districts have kindergarten for four-year-olds. 1., districts, Wis. Stat. §§ 120.001-120.44. districts may serve different grades. No. The state authorizes N.W.2d is not 822 (1977). uniform, and 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. equalization of revenue raising power. 5 X, § 3 did not require 97-3174.dtp ¶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 constitutional dismissed claims obligation to that equalize the legislature educational has a opportunity among school districts in terms of dollars.53 ¶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. ¶172 Until today, this court has had difficulty imposing uniformity on much of anything based upon the language of art. X, § 3. rel. The court attempted to explain this section in State ex Zilisch v. Auer, 197 Wis. 53 284, 289-90, 221 N.W. 860, In his brief, Governor Thompson argues that the equalized share of state support for public education has increased from 72.3 percent of state aid in 1986-87 to 77.6 percent in 1998-99. Non-Party Brief by Governor Tommy G. Thompson at 4. The first tier of the three-part general school aid formula is for costs shared between the state and school district up to a primary cost ceiling of $1,000 per student. The state's share at this level is calculated using a guaranteed property valuation of $2 million per student. 1997-98 Wisconsin Blue Book, p. 291. Plaintiffs argue that the first tier creates disequalizing spending disparities by its hold harmless feature. The Governor responds that this disequalization has fallen from 0.7 percent of total equalization payments in 1996-97 to 0.52 percent in 1999-2000. Id. at 5. 6 97-3174.dtp (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, when 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.54 ¶173 The court cited no authority for these passages. fact, the language was inspired by the brief of respondent (Zilisch) who did not point to constitutional debates. counsel relied on a Wisconsin case, State ex In rel. Rather, 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 54 In reaching this conclusion, the court overruled State ex rel. Brown v. Haney, 190 Wis. 285, 209 N.W. 591 (1926). 7 97-3174.dtp 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. This 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. Respondent'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. III ¶174 In the early years of statehood, the hiring licensing of teachers was entirely a local matter. and Wisconsin Blue Book, p. 432 (1999-2000). For a number of years, state support consisted of principally public from the education sale of public government had granted to the state. of lands Id. money that derived the federal 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. for Id. schools The state's first attempt to equalize tax support in property-poor districts was the Elementary Equalization Law of 1927 (Chapter 536).55 55 Wisconsin Id. According to the 1999-2000 Wisconsin Blue Book, Chapter 536, Laws of 1927, was promoted by State Superintendent of Public Instruction John Callahan, who urged a 40 percent level of state support for local school costs. This figure was not reached until after 1970. There was no state support for high schools until 1875. 1999-2000 Wisconsin Blue Book, p. 432. 8 97-3174.dtp ¶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. money included general aid, delivered through a formula, categorical aid, and school levy credits. The three-tier 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.56 ¶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 clearly contravenes some constitutional provision." Wis. 2d at 583 (Abrahamson, J., Day, J., and statute Busé, 74 Heffernan, J. dissenting). 56 The court obtained printouts of school referenda in the 1990s from the Department of Public Instruction. According to our calculations, there were 166 successful referenda to exceed revenue caps in the four years 1996-1999. These referenda totaled approximately $85,000,000. There also were approximately 335 successful referenda on long term debt during these same four years. The value of these referenda exceeded $2.5 billion. Local school referenda are part of the state school finance system. A number of the school district plaintiffs in this case participated in successful referenda. 9 97-3174.dtp ¶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. have salutary proposals for improvements. We might even But it is not the role of the supreme court to shape education policy or provide revenues. This vital responsibility executive and the legislative branches. is reserved to the 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. ¶178 I join the majority opinion in affirming the court of appeals and in constitutional. holding the present school finance system In other respects, I dissent. ¶179 I am authorized to state that Justice DIANE S. SYKES joins this concurring/dissenting opinion. 10 No. 97-3174.dss ¶180 DIANE S. SYKES, J. (concurring in part; dissenting in I agree with the majority's conclusion that the state part). school finance system is not unconstitutional under Wis. Const. art. X, § 3, the uniformity clause of the education article, or Wis. Const. art. I, § 1, the Equal Protection Clause. Therefore, I join sections I and III of the opinion, as well as the decision to affirm. However, I cannot agree with sections II and V of the majority opinion, which announce an expansive new state constitutional right under art. X, § 3 to "an equal opportunity for a sound basic education," defined as an education "that will equip students for their roles as citizens and enable them to succeed economically and personally." Majority op. at ¶¶ 3, 51, 52, 87. ¶181 The petitioners allege that the current school finance formula violates the uniformity clause of the education article as well as Constitution the Equal Protection by creating or Clause failing of to the Wisconsin redress alleged educational disparities in so-called "property-poor" districts, districts charter with many schools and high-needs the children, school enrollment in the public schools. are convinced that in order choice and districts program where decrease the Four members of this court to decide the uniformity clause challenge, the court is required to articulate a constitutional standard or test for the right to education under art. X, § 3. And they have done so, by reference to an elaborate definition 1 No. 97-3174.dss of "educational adequacy" that has no support in the text of the constitution itself nor in any of our prior art. X, § 3 cases. ¶182 Any educational question, definition adequacy not a is of education inherently justiciable a one. or standard political and The people for policy of this statethrough their elected representatives in the legislature, the governor's office and local school boardsdecide what their schools will teach and how desirable for their children. much education is adequate or What constitutes an "adequate" or "sound" or even "basic" education is most emphatically not a question of constitutional law for this or any other court. ¶183 As the majority opinion discusses at length, our cases pertaining to the education article have held that the framers of the Wisconsin Constitution were concerned with the nature, character and purposes of educationnot the technicalities of school district size, boundaries or compositionand viewed education as necessary to the preservation of liberty and the perpetuation of a productive, honorable citizenry. Majority op. at ¶¶ 31-47; Kukor v. Grover, 148 Wis. 2d 469, 485-90, 436 N.W.2d 568 (1989); Busé v. Smith, 74 Wis. 2d 550, 564-66, 247 N.W.2d 822 (1977); State ex rel. Zilisch v. Auer, 197 Wis. 284, 289-90, 221 N.W. 860 (1928). ¶184 But I do not read these cases to mean that art. X, § 3 commits to the judiciary, in the exercise of its obligation of constitutional interpretation, questions of educational adequacy, content or scope. There is certainly nothing in the 2 No. 97-3174.dss text of art. X, § 3 to support such a conclusion. Wisconsin Const. art. X, § 3 provides: 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 . . . . ¶185 The other sections of the education article pertain to the election of the state superintendent of public instruction (art. X, § 1), the school fund (art. X, §§ 2, 5), local school taxes (art. X, § 4), the state university system (art. X, § 6) and the sale of school and university lands (art. X, §§ 7, 8). There is nothing in the education article that specifically or even generally addresses the content, character or scope of the education the legislature must provide in the state's district schools.57 ¶186 As the majority opinion notes, the power to establish schools is inherent in state government, and so the education article of interpreted exercise its the as Wisconsin a power directive for the Constitution has compelling the establishment of always been legislature a public to school system rather than as an organic grant of legislative authority over education. Majority op. at ¶ 29. Zweifel v. Joint Dist. No. 1, 76 Wis. 2d 648, 658, 251 N.W.2d 822 (1977); Busé v. Smith, 74 Wis. 2d at 564; Manitowoc v. Manitowoc Rapids, 231 Wis. 94, 97, 285 N.W. 403 (1939). 57 See Justice part, which I join. Prosser's concurrence 3 in part, dissent in No. 97-3174.dss The specific constitutional guarantee of education flows from the provision that the legislature provide for the establishment of district schools. Since the power to establish schools existed without a specific grant as an inherent function of state government, the clear purpose of art. X, sec. 3, was to compel the exercise of the power to the extent designated. Art. X, sec. 3, must then be viewed as a limitation upon the broad power of the state to educate its citizens through the establishment and operation of schools. The limitations are precisely stated: District schools, uniformity, and free tuition for certain ages. Zweifel, 76 Wis. 2d at 658 (citation omitted). See also Manitowoc, 231 Wis. at 98 ("the purpose [of art. X, § 3] was not to grant a power to the legislature to establish schools, for this power would exist without grant, but to compel the exercise of the power to the extent designated"); Outagamie County v. Zuehlke, 165 established by Wis. 32, the 35-36, decisions of 161 N.W. this 6 (1917)("It court that our is state constitution is not so much a grant as a limitation of power, therefore the state legislature has authority to exercise any and all legislative powers not delegated to the federal government nor expressly or by necessary implication prohibited by the national or state constitution"). ¶187 However, art. X, § 3 says only that the legislature must establish uniform public schools, free and open to all. does nothing to either prescribe or limit It instructional character or content, leaving it exclusively to the legislature, which had inherent authority over it to begin with. ¶188 The lower courts, some members of the legislature and some amici complained about the 4 lack of a constitutional No. 97-3174.dss definition or standard for the right to education under art. X, § 3.58 broad The court has responded to these complaints by adopting a new definition of the right to education that is as breathtaking in scope as it is disconnected to anything in the text of the constitution. ¶189 The court s new definition of the right to education is grounded in ideas about constitutional educational adequacy found in supreme the law courts, reviews measured and by the decisions reference to of the other state sufficiency of instruction and the equal opportunity to become proficient in specific curricular subjects. new approach outcomes, emphasizes although the the Majority op. at ¶¶ 48-52. objective majority of opinion equalizing notes The student that unequal student scores on proficiency tests would not be enough alone to make out a constitutional violation. n.21. Majority op. at ¶¶ 51-53, The court s new standard is linked in part to statutes prescribing curricular requirements for the public schools. Majority op. at ¶ 51. ¶190 The newly-minted constitutional right is as follows: "Wisconsin students have a fundamental opportunity for a sound basic education. right to an equal 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 58 The Wisconsin Constitution nowhere mentions the "right to education." It is not contained in the Declaration of Rights, art. I, nor anywhere in the education article. It is a judicial extrapolation from the uniformity clause of art. X, § 3. Busé v. Smith, 74 Wis. 2d 550, 567, 247 N.W.2d 141 (1976). 5 No. 97-3174.dss and personally." education Majority includes proficient in "the op. at ¶ 3. opportunity mathematics, The for science, new right students reading to and to be 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." opportunity for a sound Id. basic There is more: "An equal education acknowledges that students and districts are not fungible and takes into account districts with disproportionate numbers of disabled students, economically disadvantaged students, and students with limited English language henceforward skills." provide And Id. "sufficient the resources" legislature to meet must the new standard; otherwise, it will be in violation of art. X, § 3. Id. ¶191 The support for Constitution. problem it with all anywhere in of this the is text that of there the is no Wisconsin It is entirely the product of judicial invention, despite efforts to tie some parts of the standard to particular statutory enactments. a parent and a This may be fine education policy, and as citizen I certainly support the educational aspirations and goals expressed by the new standard, as well as the requirement that specified curricular compelled to exercise in say as schools subject areas. forcefully education include clause as instruction But I can as a that standard-writing whatsoever to do with constitutional law. 6 in judge, the I am the court's has nothing No. 97-3174.dss ¶192 In my judgment, any attempt by this court to create a constitutional standard or definition of the right to education based upon ideas about educational adequacy, curricular offerings is seriously misguided. the prerogatives of the legislative outcomes and It encroaches upon branch of government, implicating separation of powers principles and bringing into play the political question doctrine of Baker v. Carr, 369 U.S. 186 (1962). issues that The judiciary should not be drawn into deciding are essentially political in nature, exclusively committed by the constitution to another branch of government and not susceptible to judicial management or resolution. This is clearly such an issue. ¶193 In Baker the United States Supreme Court established the basic framework for analyzing the justiciability political questions: The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the 'political question' label to obscure the need for case-by-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. . . . . Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving 7 of No. 97-3174.dss it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Id. at 210-11, 217. See also Nixon v. United States, 506 U.S. 224, 228-29 (1993); Powell v. McCormack, 395 U.S. 486, 518-19 (1969). The Court in Baker ultimately found the reapportionment issue before it to be justiciable, a conclusion followed by this court in State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 561-64, 126 N.W.2d 551 (1964), overruling State ex rel. Broughton v. Zimmerman, 261 Wis. 398, 52 N.W.2d 903 (1952), and State ex rel. Martin v. Zimmerman, 249 Wis. 101, 23 N.W.2d 610 (1946). ¶194 It is, of course, the duty and particular province of the judiciary to interpret the constitution and say what the law is. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); State ex rel. Wisconsin Senate v. Thompson, 144 Wis. 2d 429, 436, 424 N.W.2d 385 (1988).59 I am fully aware that the doctrine of political question nonjusticiability is rarely invoked and in fact has not been directly applied by this court on a question of state constitutional law since Baker. 59 See also The Federalist, No. 78 (Alexander Hamilton) ("The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body"). 8 No. 97-3174.dss ¶195 I am convinced, however, of the doctrine's applicability to art. X, § 3, at least to the extent that this court has now ventured into creating a constitutional standard or test for "educational adequacy." the text of art. X, § 3, the My conclusion is based upon obvious lack of judicially discoverable or manageable standards for educational adequacy, and the impossibility of deciding the issue without undertaking an initial, clearly nonjudicial policy determination. ¶196 Under the Baker analysis, "the concept of a textual commitment to a coordinate political department is not completely separate from the concept of a lack of judicially discoverable and manageable standards for resolving it; the lack of judicially manageable standards may strengthen the conclusion that there is a coordinate branch." textually demonstrable commitment Nixon, 506 U.S. at 228-29. to a As I have already noted, while it is clear that art. X, § 3 is not a grant of legislative power but a direction that legislative power be exercised in a particular way, the text of the education article nonetheless supports the conclusion that this is an area that is committed entirely to the legislative branch. Authority over public education is inherent in the legislature; art. X, § 3 does nothing more than command its exercise for the creation and support of a system of generally uniform, tuition-free, district 9 No. 97-3174.dss schools.60 The constitution is silent on the issue of the scope, content or character of the education provided by the public schools. ¶197 In addition, the task of filling in the constitutional gaps is clearly a judicially unmanageable one, as the profound breadth and demonstrate. adequate parents to and soaring rhetoric of the court's new standard More fundamentally, just how much education is the requirements society at any and expectations given point in of time students, manifestly involves policy determinations of a nonjudicial type. ¶198 Finally, there is uncertainty and risk inherent in multiple and conflicting pronouncements about education policy emanating from different constitutionalizing the branches notion of of government. "educational By adequacy" (however we would choose to define it), we create the potential for never-ending school finance litigation. ¶199 The majority opinion refers to the necessity of adopting an adequacy-based constitutional standard for education "as a goad or as a Majority op. at ¶ 50. backstop to the legislature . . . ." But no legislature can ever satisfy everyone, particularly in a policy area so fraught with nuances and competing interests as this one. The constitutional right to education announced by the court today guarantees not better 60 Of course, if the legislature suddenly started charging tuition or turning students away there would be a justiciable claim for violation of art. X, § 3. The text is explicit as to these matters, which are clearly capable of judicial resolution and remedy. 10 No. 97-3174.dss schools but bi-annual school finance litigation, as dissatisfied combatants in the battle for state education budget dollars go to court with claims of educational "inadequacy." ¶200 The reference majority to the dismisses unremarkable the justiciability fact that this issue court by has entertained art. X, § 3 challenges before, in Kukor, Busé and Zilisch. Majority op. at ¶ 2, n.2. In other words: "We ve gone a little way down this road before, why not continue further?" This is poor constitutional justification for the exploration in educational policymaking the court engages in today. The difference, of course, between this case and the earlier ones is that this court has never before arrogated to itself, under the 11 No. 97-3174.dss guise of constitutional interpretation, educational content, character or scope.61 the power to dictate Not until today. ¶201 I recognize that courts in other states have attempted to define the parameters of their state constitution education clauses by reference to variations on the "educational adequacy" theme. Majority op. at ¶¶ 48-50. However, I am persuaded by the reasoning of the Illinois Supreme Court, which invoked the political question nonjusticiability doctrine in declining to follow the trend: What constitutes a "high quality" education, and how it may best be provided, cannot be ascertained by any judicially discoverable or manageable standards. The constitution provides no principled basis for a 61 There is unfortunate dicta in Busé v. Smith, 74 Wis. 2d 550, 247 N.W.2d 141 (1976), which suggests that this court has the authority to dictate the subjects to be taught in the public schools. Referring to the distinction drawn in State ex rel. Zilisch v. Auer, 197 Wis. 284, 221 N.W. 860 (1928), between the "character of instruction" and the mechanics of school district creation, the court in Busé stated: "If 'character of instruction' was all that was required to be 'as nearly uniform as practicable' under the mandate of the constitution, then it was left up to this court to ultimately determine what subjects were to be included in 'character of instruction' and to the legislature to determine what uniformity was 'practicable.'" Buse, 74 Wis. 2d at 566. This statement was completely unnecessary to the holding in Busé, which concerned the very technical issue of the constitutionality of the negative aids formula. Zilisch itself was a challenge to school district boundaries. Despite their expansive language, neither Busé nor Zilisch concerned the issue of whether art. X, § 3 mandates a certain content or character of education. I would withdraw the foregoing language from Busé. There is nothing in the text of art. X, § 3, nor in Zilisch or any of our cases, to support the proposition that this or any other court has a role in curriculum decisions. 12 No. 97-3174.dss judicial definition of high quality. It would be a transparent conceit to suggest that whatever standards of quality courts might develop would actually be derived from the constitution in any meaningful sense. Nor is education a subject within the judiciary's field of expertise, such that a judicial role in giving content to the education guarantee might be warranted. Rather, the question of educational quality is inherently one of policy involving philosophical and practical considerations that call for the exercise of legislative and administrative discretion. To hold that the question of educational quality is subject to judicial determination would largely deprive the members of the general public of a voice in a matter which is close to the hearts of all individuals in Illinois. Judicial determination of the type of education children should receive and how it can best be provided would depend on the opinions of whatever expert witnesses the litigants might call to testify and whatever other evidence they might choose to present. Members of the general public, however, would be obliged to listen in respectful silence. We certainly do not mean to trivialize the views of educators, school administrators and others who have studied the problems which public schools confront. But nonexpertsstudents, parents, employers, and others also have important views and experiences to contribute which are not easily reckoned through formal judicial factfinding. In contrast, an open and robust public debate is the lifeblood of the political process in our system of representative democracy. Solutions to problems of educational quality should emerge from a spirited dialogue between the people of the State and their elected representatives. Committee for Educ. Rights v. Edgar, 672 N.E.2d 1178, 1191 (Ill. 1996). Funding, See also Coalition for Adequacy and Fairness in Sch. Inc. v. Chiles, 680 So. 2d 400, 408 (Fla. 1996)(challengers of school finance system failed to present "an appropriate standard for determining 13 [educational] 'adequacy' No. 97-3174.dss that would not present a substantial risk of judicial intrusion into the powers and responsibilities assigned to the legislature"). ¶202 So it is here. The expansive constitutional right to education announced and explicated by the court today is not derived from the constitution in any meaningful sense, and it is entirely inappropriate in our representative system to resolve disputes over educational content, adequacy or finance through art. X, doctrine § 3 of litigation. To nonjusticiability responsibility of here judicial is review not but to to of abdicate vindicate issues the the This does not leave the legislature to exercise its issues sorts question resolved. education these political process over which the democratic authority by invoke unchecked. The are best checks and balances of the ballot box are oftentimes far more effective than those of a coordinate branch of government. ¶203 Accordingly, I cannot subscribe to parts II and V, or paragraph 3 of the majority opinion, in which the court articulates a new constitutional "right to education" under art. X, § 3. Therefore, I respectfully concur in parts I and III of the majority opinion, but in other respects, I dissent. ¶204 I am authorized to state PROSSER, joins this opinion. 14 that Justice DAVID T. No. 97-3174.dss 1
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
