JOHNSON v. BURMASTER
744 N.W.2d 900 (Wis. 2007)

OPINION

BROWN, C.J. Wisconsin Virtual Academy (WIVA) is a charter school established by the Northern Ozaukee School District. Though WIVA's administrative offices are within district boundaries in Fredonia, it serves pupils across the state by providing curricular materials to them in their homes via internet and mail. WIVA employs several certified teachers who also live throughout the state and have email, telephone and some internet-based contact with the pupils. However, primary day-to-day responsibility for implementing the pupils' education resides with the pupils' parents. The great bulk of WIVA's funding comes from open-enrollment transfer payments to the District from the pupils' home districts.
 
This appeal calls on us to determine whether the District's operation of WIVA comports with Wisconsin's charter school, open-enrollment, and teacher licensing statutes. The relevant provisions of these statutes prohibit a school district from operating a charter school located outside the district, require that open-enrollment students attend a school in the district, and require that teachers in all public schools, including charter schools, be state-certified. For each statute, the District presents a creative reading allowing WIVA to continue its present operations, but our job is not to bend the statutory framework to fit WIVA. If, as its proponents claim (and its opponents dispute), WIVA has hit upon a bold new educational model that educates pupils in a way equal to traditional school at a fraction of the cost, then the legislature may well choose to change the law to accommodate WIVA and other schools like it. However, as the law presently stands, the charter school, open-enrollment, and teacher certification statutes are clear and unambiguous, and the District is not in compliance with any of them. We reverse the circuit court's grant of summary judgment and instead direct that summary judgment be granted to the plaintiffs.

The essential facts are undisputed. In 2003, the District contracted with K12 Inc., a Delaware corporation, to provide a curriculum for its new virtual charter school, WIVA. K12 sends books and other materials to the students, and also provides curricular materials via the internet (it also provides loaned computers). The WIVA students, under the direction of their parents, study the materials and complete various assignments to demonstrate their understanding. The parents are provided with instructor's materials to assist the student's learning. The parents check the students' work on their assignments to determine whether the students have mastered the topic. A parent is required to devote four to five hours per day to the student's education. The overwhelming majority of WIVA's 619 students (as of December 2004) live and study outside the District. The open-enrollment payments transferred from these students' home districts cover the District's costs to operate WIVA and provide the district with an "oversight fee." The remaining revenue is paid to K12.

WIVA's principal, vice-principal, and other administrators work at the District's office in Fredonia. WIVA's certified teachers are employees of the District, but they work from their homes across the state. They review samples of students' work to assess progress, and hold one to two twenty- to thirty-minute telephone conferences per month with each student and parent, during which they discuss and assess student progress. They correspond with students via email, and respond to parental requests for assistance via email and telephone. Certified teachers also conduct thirty- to forty-minute interactive online classes using online conferencing software; students participate in such classes two to four times per month.

In January 2004, individual citizens and the Wisconsin Education Association Council (collectively "WEAC") filed suit against the District, its officials and school board, and K12 (collectively "the District"), along with State Superintendent of Public Instruction Elizabeth Burmaster. WEAC claimed that the District's operation of WIVA violated the open-enrollment, charter school, and teacher licensing statutes. Though formally a defendant, Burmaster has adopted WEAC's position on the teacher licensing statute and takes no position on the other two claims.
In March 2006, the circuit court granted summary judgment to the District on all claims. For the reasons that follow, we now reverse the circuit court's grant of summary judgment to the District, and direct that it grant summary judgment to Burmaster and WEAC.

This case calls on us to interpret three statutory provisions. Burmaster and the District each advance legislative history arguments based primarily on various bills that never became law. Even if these bill histories were probative of legislative intent, we would not consider them because we conclude below that each of the statutory provisions at issue has a plain and unambiguous meaning.

We first consider whether the District has complied with WIS. STAT. § 118.40(3)(c), which states that "[a] school board may not enter into a contract for the establishment of a charter school located outside the school district." As noted above, WIVA has administrative offices within the district; however, the large majority of its teachers and students live outside the district and do not enter the district to go to school. The circuit court held that WIVA is located at the address of its administrative offices.

This view has the virtue of simplicity, but we cannot adopt it because it ignores the plain language of the statute. WISCONSIN STAT. § 118.40(3)(c) restricts the location of a "charter school" to the boundaries of the establishing district. Surely, the administration of a school is a part of that school, and so we have no problem agreeing that part of WIVA is "located" in Fredonia where the principal, vice-principal, and secretary work. But to agree with the circuit court's conclusion and hold WIVA in compliance with § 118.40(3)(c), we would have to accept that a school consists only of its administrators and that where the teachers teach and the students learn has nothing to do with where the school is "located." We cannot believe that the plain and ordinary meaning of the statutory term "school" excludes both teachers and students. The large majority of WIVA students receive their educations at locations outside of the district, from teachers working at locations outside of the district. The conclusion is inescapable that WIVA is located, in part, outside of the district.

Nor is it reasonable to say that WIVA exists only in cyberspace or make the related claim that "geography-based conceptions" like "location" have been rendered meaningless. First, as a matter of law, "located" is a statutory term, and we may not lightly nullify it. Second, as a matter of common sense, the rise of the internet notwithstanding, "location" remains a meaningful and often indispensable concept, particularly when it comes to the relationships between governmental units. The Northern Ozaukee School District has boundaries. WIVA's students are educated by WIVA's teachers outside of them. WIVA is thus in violation of WIS. STAT. § 118.40(3)(c).

We next consider WIS. STAT. § 118.51, the full-time open-enrollment statute. It allows a pupil to attend a public school outside his or her home district, and sets forth the procedures the pupil and the sending and receiving district ("resident" and "nonresident" school district) must follow. The parties dispute whether a nonresident pupil enrolled in WIVA triggers the open-enrollment statute's provisions, including a shift in funding from the resident school district to the Northern Ozaukee School District. The disagreement boils down to whether a WIVA pupil "attends school" in the District.

We have already explained that WIVA is, in part, located outside the district, and so it is of no import whether the statute requires a student to be in the district attending school or merely to attend a school that is in the district. WIVA's nonresident pupils attend school outside the district. They also attend a school outside the district.

The final question we must answer is whether WIVA violates Wisconsin's teacher licensure requirement. Burmaster and WEAC contend that WIVA's parents serve as the school's teachers and that because they are not licensed by the Department of Public Instruction (DPI), WIVA violates WIS. STAT. § 118.19(1), which requires that "[a]ny person seeking to teach in a public school, including a charter school ... shall first procure a license or permit from the department."

"Teaching" means improving pupil learning by planning instruction, diagnosing learning needs, prescribing content delivery through classroom activities, assessing student learning, reporting outcomes to administrators and parents and evaluating the effects of instruction. The differences between the parties' descriptions of a WIVA parent's role are of emphasis rather than substance. The District has nowhere disputed that a parent works one-on-one with a pupil, presenting the lesson, answering questions, and assessing progress. Instead, it simply highlights other parental tasks. Even accepting the District's description of the parent's role (which, again, is not necessarily inconsistent with the description proffered by WEAC and Burmaster), we have no difficulty concluding that the activities of the WIVA parents fall within the DPI definition (or any reasonable definition) of "teaching." Indeed, we have a difficult time understanding what else it could mean to say that a WIVA parent is responsible for "continuous progress through the curriculum."

The District points to teacher aides, parent volunteers, guest speakers, and others who may perform some of the same "teaching" functions in the public schools that parents do in WIVA. The District proposes that there is no reasonable distinction between WIVA and a more traditional public school in which unlicensed individuals play a role in the teaching of students.

We wish to emphasize that the issue in this case is not simply what the parents do, but what the school requires them to do in order for the school to function. We underscore that no one is suggesting that a parent assisting his or her child to whatever extent the parent finds necessary is "illegal." The question is not whether and how a parent may assist his or her child with schoolwork; rather, it is whether the District can establish a public school, using public funds, that relies upon unlicensed individuals as the primary teachers of the pupils. The problem is not that the unlicensed WIVA parents teach their children, but that they "teach in a public school."

WIVA may be, as its proponents claim, a godsend for children who would not succeed in more traditional public schools, as well as a welcome new option for parents who want their children to receive a home-based education for any number of reasons. But it is also a public school operated with state funds, and its operation violates the statutes as they now stand. It is for the citizens of this state, through their elected representatives in the legislature, to decide whether and how their tax money is going to be spent. If the citizenry wants tax money spent on virtual schools like WIVA, that is fine. Let the citizens debate it and set the parameters, not the courts.

We conclude that the plaintiffs are entitled to summary judgment. On remand, we direct that the circuit court enter a declaratory ruling that the District and K12 are in violation of WIS. STAT. §§ 118.19, 118.40 and 118.51, and enjoin the DPI from making pupil transfer payments based upon nonresident students enrolled in WIVA. Order reversed and cause remanded with directions.