Legal Comment James F Clark Legal Counsel Isaksen Lathrop Esch
James F. Clark, Legal Counsel, Isaksen, Lathrop, Esch, Hart & Clark
Authority to contract for
Public education in recent years has increasingly cannot be obtained in his resident district.
departed from the concept quot;one size fits all.quot; State and Intergovernmental agreements
federal laws I mandating that students with special Another potentially useful grant of legislative authority
educational needs be provided individual educational to school districts to contract for educational services is
programs are but one example of society's growing found in sec. 66.30. Section 66.30 permits a school district
awareness in this regard. and any one or more other municipal entities (including
Individual consideration of a student's educational other school districts), to enter into an intergovernmental
needs may, from time to time, reveal that the student cooperation agreement or contract for any purpose which
would benefit from educational programs, services or each of the parties thereto would have authority to carry
training that are not or cannot be provided by the student's out individually.
resident school district or its school personnel. One For example, the statute authorizes school boards of
possible solution is to contract with other school districts, two or more school districts to enter into written
public agencies, private schools or private individuals to agreements to share the services of one or more teachers
provide the needed services to the school district's or other professionals and to acquire, construct, lease and
students. However, a school district's powers to contract operate a school facility for the participating school
for such services are limited to those expressly author- districts. ~ By thus combining resources and personnel,
ized by statute and those necessarily implied therefrom. = school districts will often be able to provide better
This month's Legal Comment will focus upon certain educational services to the students involved at a saving in
statutory provisions which expressly or impliedly author- costs.
ize school districts to enter into contracts for educational Nevertheless, intergovernmental contracts under 66.30
services or training for their students. A more complete are valid only to the extent that each of the contracting
discussion of general school board powers and duties has parties is exercising duties or powers authorized by law.
been the subject of a previous Legal Comment. 3 Thus, according to the Wisconsin Attorney General, a
Tuition payments schbol district may not enter into a contract with a
One basic power to contract for educational services vocational, technical and adult education school (VTAE)
granted by sec. 121.78 of the Wisconsin Statutes (all to provide health occupation courses to its students
statutes cited herein are to the Wisconsin Statutes unless unless the district is satisfied the VTAE instructor holds a
otherwise noted) permits a school district to contract for valid teaching certificate for that subject area from the
the enrollment of one or more of its resident students in Department of Public Instruction. 5 The Attorney General
another public school district in or out of state. Depend- reasoned in his opinion that since school districts are
ing on the facts and circumstances presented, various required by statute to ensure that their professional staff
limitations on this contracting power may exist, such as members hold a certificate or license to teach the assigned
requiring the prior approval of the State Superintendent of subject in the public schools, the district could not
the Wisconsin Department of Public Instruction (DPI). circumvent this requirement by having the course taught
Moreover, in all instances such a contract should be in by unlicensed VTAE personnel.
writing and provide that while the school district of CESA and other speclel
residence will pay the tuition of the pupil, it will be entitled educatlon contracts
to receive state aid as though the pupil was enrolled in the Chapter 116 represents another instance where the
resident district. legislature has recognized the value of allowing school
Various reasons may exist for entering into such districts to pool their resources to provide students
contracts; for example, to permit a child to attend a school expanded educational services. This statute creates
which is closer to his home, or because another school Cooperative Educational Services Agencies (CESA) for
district offers a program the child needs or desires which (Continued on next page)
May, 1981 27
Legal C o m m e n t ( c o n t i n u e d ) may request that the school board modify the child's
the purpose of serving the educational needs of all areas of current educational program or curriculum.,O This provi-
Wisconsin and as a convenience for school districts in sion is applicable to all students, regardless of whether the
cooperatively providing special educational services, child is a truant.
including research, special student classes, human Some of the program modifications now authorized by
growth and development programs, data collection and statute are school work training or work study programs,
in-service programs. 6 enrollment in alternative public schools or programs
School districts may take advantage of the services either within or outside of the school district, enrollment in
offered by CESAs by entering into service contracts and private non-sectarian schools or programs located within
paying their prorata share of CESA's cost in providing the the school district, and homebound or correspondence
serviceJ While CESAs are utilized by school districts in courses.quot; For example, a school might now contract to
many respects, typically they employ special education provide a gifted student advanced courses at a private or
personnel such as reading specialists, school psy- public university or contract with local businesses for
chologists, hearing specialists, speech therapists, and work training or work study programs involving actual on-
physical therapists. By entering into a service contract the-job experience, so long as such activities are conduct-
with a CESA, a school district acquires the services it ed in compliance with other applicable law. TM
needs in proportion to the number of district students Finally, it should be noted that while there is no limit to
being served. the possible curriculum modifications which may be
Furthermore, a CESA may develop and carry out entire requested and granted by a school board, the school
special education programs for handicapped children. board is only required to receive, review and consider
Under Wisconsin's present statutory scheme, 8if the CESA such requests and Is not required to provide alternative
for the school district operates an appropriate special curriculum or programlng unless it decides to do so.
education program for handicapped children, the child Conclusion
may be placed with CESA. The statutory provisions which authorize contracting
If the school district, county, and CESA do not operate a for educational services provide flexibility to school
special education program which is appropriate for the boards in meeting the educational needs of their students.
child's needs, a school district may place the child in a However, considering the many legal ramifications
model school or another public agency within the state. In Involved In school districts' contracting for educational
addition, in certain situations, a child may be provided services (not the least of which is the potential that such
educational services in a public or private special contracts may violate provisions of a district's collective
education school either within or without the state or at the bargaining agreement or the district's duty to bargain with
child's residence. The various conditions which must be its teachers' union over such contracting), TM school
met prior to contracting for these special educational districts are well advised to seek the advice of legal
services are quite extensive and beyond the scope of this counsel before entering into such contracts.
Comment. However, all such placements are generally
predicated on the assumption that an appropriate public 1. See,generally, subch. V, Chapter 115, Wis. Stats., Sec. 504 of
education is not available to the handicapped student the Rehabilitation Act of 1973 (29 U.S.C. sec. 794) and
within the school district of residence, county or CESA. Education of All Children Act (20 U.S.C. sec. 1401 et. seq.).
2. State ex reL Van Straten v. Milquet, 180 Wis. 109,192 N.W. 392
Program modifications (1923) and State ex rel. Farrell v. Schubert, 52 Wis. 2d 351,190
The Legislature has recognized that student truancy N.W.2d 529 (1971).
and dropouts from school present important social 3. quot;Duties and Powers Delegated to Annual School Meeting and
School Board,quot; Wisconsin School News (July, 1977).
problems with which school districts may be better 4. Section 66.30(6), Wis. Stats.
equipped to deal if they are granted a greater degree of 5. 68 Op. Atty. Gen. 148 (1979).
6. Section 116.01, Wis. Stats.
flexibility in providing program modifications to a 7. Section 116.03(3) and (4), Wis. Stats.
student's academic curriculum. The Legislature recently 8. Section 115.85(2), WIs. Stats.
amended the Compulsory Attendance Law to increase the 9. Section 118.15, Wis. Stats., as amended by Chapter 298, Laws
options of school districts in contracting out for desirable 10. Section 118,15(1)(d), Wis. Stats.
work training or technical and educational programs 11. It should be noted that while only two of the program
which may induce students to attend and stay in school. ° modification examples enumerated by the legislature
specifically authorize contracting by the school district to
One option available to school districts (carried over implement the new programs (sec. 118.15(1)(d) 4 and 6), DPI
from previous law) is to approve a pupil's request to attend has opined that no further legislation is needed to authorize
districts to grant other program modification requests.
a VTAE school in lieu of high school (or on a part-time According toDPI, by expressly authorizing persons to make
basis) if the child has the permission of his or her parent or such requests of a school board, the statute as a whole
guardian and is at least 16 years of age. If the school board necessarily Implies the authority of the board to act affir-
matively on the requests it deems worthwhile. Letter to Rep.
approves the student's request to attend a VTAE, the VTAE Richard Flintrop from Dwight Stevens, Deputy State
must enter into a contract with the school district. Superintendent, dated October 15, 1980.
Generally, the VTAE must establish an appropriate 12. See, for example, secs. 103.65 to 103.82, Wis. Stats., and
implementing regulations found at Wis. Adm. Code sec. IND
program of vocational and technical courses for the 70.03(3) relating to the employment of minors and student
student. The contract must set out the courses provided learners and sec. 118.19(1). Wis. Stats., regarding the
by the VTAE which are approved by DPI as being courses requirement that those seeking to teach in public schools
must have a license or certificate Issued by DPI.
which will meet high school graduation requirements and 13. quot;Supreme Court Analyzes Subjects of Bargaining,quot; Wisconsin
the amount per class hour the district shall pay the VTAE. School News (August, 1979).
A new and more unique aspect of the recent statutory
amendments is the provision that any child's parent or
guardian, or the child if the parent or guardian is notified,
28 Wisconsin School News