Legal Comment James F. Clark, Legal Counsel, Isaksen, Lathrop, Esch, Hart & Clark

Authority to contract for educational services

Public education in recent years has increasingly departed from the concept "one size fits all." State and federal laws I mandating that students with special educational needs be provided individual educational programs are but one example of society's growing awareness in this regard.

Individual consideration of a student's educational needs may, from time to time, reveal that the student would benefit from educational programs, services or training that are not or cannot be provided by the student's resident school district or its school personnel. One possible solution is to contract with other school districts, public agencies, private schools or private individuals to provide the needed services to the school district's students. However, a school district's powers to contract for such services are limited to those expressly author- ized by statute and those necessarily implied therefrom. =

This month's Legal Comment will focus upon certain statutory provisions which expressly or impliedly author- ize school districts to enter into contracts for educational services or training for their students. A more complete discussion of general school board powers and duties has been the subject of a previous Legal Comment. 3

Tuition payments One basic power to contract for educational services

granted by sec. 121.78 of the Wisconsin Statutes (all statutes cited herein are to the Wisconsin Statutes unless otherwise noted) permits a school district to contract for the enrollment of one or more of its resident students in another public school district in or out of state. Depend- ing on the facts and circumstances presented, various limitations on this contracting power may exist, such as requiring the prior approval of the State Superintendent of the Wisconsin Department of Public Instruction (DPI).

Moreover, in all instances such a contract should be in writing and provide that while the school district of residence will pay the tuition of the pupil, it will be entitled to receive state aid as though the pupil was enrolled in the resident district.

Various reasons may exist for entering into such contracts; for example, to permit a child to attend a school which is closer to his home, or because another school district offers a program the child needs or desires which

cannot be obtained in his resident district. Intergovernmental agreements

Another potentially useful grant of legislative authority to school districts to contract for educational services is found in sec. 66.30. Section 66.30 permits a school district and any one or more other municipal entities (including other school districts), to enter into an intergovernmental cooperation agreement or contract for any purpose which each of the parties thereto would have authority to carry out individually.

For example, the statute authorizes school boards of two or more school districts to enter into written agreements to share the services of one or more teachers or other professionals and to acquire, construct, lease and operate a school facility for the participating school districts. ~ By thus combining resources and personnel, school districts will often be able to provide better educational services to the students involved at a saving in costs.

Nevertheless, intergovernmental contracts under 66.30 are valid only to the extent that each of the contracting parties is exercising duties or powers authorized by law. Thus, according to the Wisconsin Attorney General, a schbol district may not enter into a contract with a vocational, technical and adult education school (VTAE) to provide health occupation courses to its students unless the district is satisfied the VTAE instructor holds a valid teaching certificate for that subject area from the Department of Public Instruction. 5 The Attorney General reasoned in his opinion that since school districts are required by statute to ensure that their professional staff members hold a certificate or license to teach the assigned subject in the public schools, the district could not circumvent this requirement by having the course taught by unlicensed VTAE personnel.

CESA and other speclel educatlon contracts

Chapter 116 represents another instance where the legislature has recognized the value of allowing school districts to pool their resources to provide students expanded educational services. This statute creates Cooperative Educational Services Agencies (CESA) for

(Continued on next page)

May, 1981 27

Legal Comment ( c o n t i n u e d ) the purpose of serving the educational needs of all areas of Wisconsin and as a convenience for school districts in cooperatively providing special educational services, including research, special student classes, human growth and development programs, data collection and in-service programs. 6

School districts may take advantage of the services offered by CESAs by entering into service contracts and paying their prorata share of CESA's cost in providing the serviceJ While CESAs are utilized by school districts in many respects, typically they employ special education personnel such as reading specialists, school psy- chologists, hearing specialists, speech therapists, and physical therapists. By entering into a service contract with a CESA, a school district acquires the services it needs in proportion to the number of district students being served.

Furthermore, a CESA may develop and carry out entire special education programs for handicapped children. Under Wisconsin's present statutory scheme, 8 if the CESA for the school district operates an appropriate special education program for handicapped children, the child may be placed with CESA.

If the school district, county, and CESA do not operate a special education program which is appropriate for the

child's needs, a school district may place the child in a model school or another public agency within the state. In addition, in certain situations, a child may be provided educational services in a public or private special education school either within or without the state or at the child's residence. The various conditions which must be met prior to contracting for these special educational services are quite extensive and beyond the scope of this Comment. However, all such placements are generally predicated on the assumption that an appropriate public education is not available to the handicapped student within the school district of residence, county or CESA.

Program modifications The Legislature has recognized that student truancy

and dropouts from school present important social problems with which school districts may be better equipped to deal if they are granted a greater degree of flexibility in providing program modifications to a student's academic curriculum. The Legislature recently amended the Compulsory Attendance Law to increase the options of school districts in contracting out for desirable work training or technical and educational programs which may induce students to attend and stay in school. °

One option available to school districts (carried over from previous law) is to approve a pupil's request to attend a VTAE school in lieu of high school (or on a part-time basis) if the child has the permission of his or her parent or guardian and is at least 16 years of age. If the school board approves the student's request to attend a VTAE, the VTAE must enter into a contract with the school district. Generally, the VTAE must establish an appropriate program of vocational and technical courses for the student. The contract must set out the courses provided by the VTAE which are approved by DPI as being courses which will meet high school graduation requirements and the amount per class hour the district shall pay the VTAE.

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

may request that the school board modify the child's current educational program or curriculum.,O This provi- sion is applicable to all students, regardless of whether the child is a truant.

Some of the program modifications now authorized by statute are school work training or work study programs, enrollment in alternative public schools or programs either within or outside of the school district, enrollment in private non-sectarian schools or programs located within the school district, and homebound or correspondence courses." For example, a school might now contract to provide a gifted student advanced courses at a private or public university or contract with local businesses for work training or work study programs involving actual on- the-job experience, so long as such activities are conduct- ed in compliance with other applicable law. TM

Finally, it should be noted that while there is no limit to the possible curriculum modifications which may be requested and granted by a school board, the school board is only required to receive, review and consider such requests and Is not required to provide alternative curriculum or programlng unless it decides to do so.

Conclusion The statutory provisions which authorize contracting

for educational services provide flexibility to school boards in meeting the educational needs of their students. However, considering the many legal ramifications Involved In school districts' contracting for educational services (not the least of which is the potential that such contracts may violate provisions of a district's collective bargaining agreement or the district's duty to bargain with its teachers' union over such contracting), TM school districts are well advised to seek the advice of legal counsel before entering into such contracts.

FOOTNOTES 1. See,generally, subch. V, Chapter 115, Wis. Stats., Sec. 504 of

the Rehabilitation Act of 1973 (29 U.S.C. sec. 794) and 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 (1923) and State ex rel. Farrell v. Schubert, 52 Wis. 2d 351,190 N.W.2d 529 (1971).

3. "Duties and Powers Delegated to Annual School Meeting and School Board," Wisconsin School News (July, 1977).

4. Section 66.30(6), Wis. Stats. 5. 68 Op. Atty. Gen. 148 (1979). 6. Section 116.01, Wis. Stats. 7. Section 116.03(3) and (4), Wis. Stats. 8. Section 115.85(2), WIs. Stats. 9. Section 118.15, Wis. Stats., as amended by Chapter 298, Laws

of 1979. 10. Section 118,15(1)(d), Wis. Stats. 11. It should be noted that while only two of the program

modification examples enumerated by the legislature specifically authorize contracting by the school district to implement the new programs (sec. 118.15(1)(d) 4 and 6), DPI has opined that no further legislation is needed to authorize districts to grant other program modification requests. According toDPI, by expressly authorizing persons to make such requests of a school board, the statute as a whole necessarily Implies the authority of the board to act affir- matively on the requests it deems worthwhile. Letter to Rep. Richard Flintrop from Dwight Stevens, Deputy State Superintendent, dated October 15, 1980.

12. See, for example, secs. 103.65 to 103.82, Wis. Stats., and implementing regulations found at Wis. Adm. Code sec. IND 70.03(3) relating to the employment of minors and student learners and sec. 118.19(1). Wis. Stats., regarding the requirement that those seeking to teach in public schools must have a license or certificate Issued by DPI.

13. "Supreme Court Analyzes Subjects of Bargaining," Wisconsin School News (August, 1979).

Wisconsin School News