DR. BARBARA THOMPSON, State Superintendent, Department of PublicInstruction
You have requested my formal opinion on the following questions:
"Under s. 121.17 and other applicable statutes, must a school district operating under Chapter 119 hold school for a certain minimum number of days in order to receive state aid? If the answer to the first question is yes, what is the minimum number of days a school district operating under Chapter 119 must hold school in order to receive state aid?"
Section 121.17, Stats., which sets forth the general circumstances under which the state superintendent may withhold state aid, provides in part:
*Page 156"121.17 State aid withheld. (1) (a) The state superintendent may withhold state aid from any school district in which the scope and character of the work are not maintained in such manner as to meet his approval.
"(b) No state aid may be paid in any year under this subchapter to a school district which fails to meet the requirements under subs. (2) and (3)."
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[Subsection (2) relates to school districts other than ch. 119 districts.]
"(3) Unless the state superintendent is satisfied that failure to meet the requirements of this subsection was occasioned by some extraordinary cause not arising from intention or neglect on the part of the responsible officers, a school district operating under ch. 119 shall, for the full period during which school is in session during each year as provided by the rules of the board of school directors, employ teachers qualified under s. 118.19 and pay a salary of not less than $266 a month to each regular teacher and of not less than $10 a day to each qualified continuous substitute teacher.
"(4) Notwithstanding subs. (1) and (3), full state school aids shall be paid to districts that fail during an energy emergency, as defined in s. 340.01 (15s), to comply with the days of school required by that section." (Emphasis added.)
Chapter 119, Stats., applies only to cities of the first class. Sec. 119.01, Stats. However, sec. 119.04, Stats., provides in part that:
". . . subch. I of ch. 121 . . . [is] applicable to the board of school directors and to schools in cities of the 1st class. . . ."
Subchapter I of ch. 121 is entitled "State Aid for Elementary and High Schools" and includes secs. 121.01 through 121.22, Stats. One of the very first sections of that subchapter, sec. 121.02, Stats., provides in part:
"School district standards. (1) A school district shall meet the following standards under criteria established by the department in compliance with sub. (2).
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*Page 157"(h) School shall be held and students shall receive actual instruction for at least 180 days with additional days included as provided in s. 115.01 (10)."
You advise that your question relates to a school district operating under ch. 119 which, according to the district's report, filed October 28, 1976, established 181 days as the full period during which school would be in session during the 1976-1977 school year. I assume that the 181 days was established by the board pursuant to sec. 119.18 (1), (6) and (8), Stats., so as to comply with the 180-day minimum required of all school districts by sec. 121.02 (1)(h), Stats., and the 200-day maximum imposed by sec. 119.18 (6)(a), Stats.
Section 121.02 (1), as repealed and recreated by ch. 90, Laws of 1973, provided that "In order to be eligible for state aids under s. 121.08, a school district shall meet the following standards." The standards then, as now, included the 180-day requirement set forth in paragraph (h). However, the language of the statute directly conditioning eligibility for state aids upon compliance with its standards was deleted by subsequent amendment of the statute by ch. 39, Laws of 1975, and that statute may no longer be relied upon as the statutory authority for withholding state aid for failure to comply with the 180-day requirement.
Section 121.17, Stats., sets forth specific provisions on the withholding of state aid. Section 121.17 (2), Stats., which specifies those circumstances under which state aid must be withheld from school districts other than ch. 119 districts, specifically conditions state aid on compliance with the 180-day requirement. Significantly, subsec. (3), which specifies those circumstances under which state aid must be withheld from ch. 119 districts, contains no such express mandate. One must conclude from the conspicuous absence of the 180-day requirement from this subsection that the Legislature did not intend to require the withholding of school aid from ch. 119 school districts which fail to comply with the 180-day requirement set forth in sec.121.02, Stats. The requirements of subsec. (3) are solely that, except if excused "by some extraordinary cause not arising from intention or neglect on the part of the responsible officers," the school district shall (a) employ teachers qualified under sec. 118.19, Stats., for the full period during which school is in session during each year as provided by the rules of the board of school directors, i.e., here 181 days, and (b) pay the regular and substitute teachers not less than the salaries specified. *Page 158
However, sec. 121.17 (1)(a), Stats., does vest discretion in the state superintendent to withhold state aid from a school district operating under ch. 119, Stats., if the "scope and character of the work" in such district are not maintained. Whether failure to comply with the statutory mandate in sec.121.02 (1)(h), Stats., to hold school "for at least 180 days," would justify withholding of school aid under this subsection obviously would depend on the severity of such failure and the attendant circumstances.
BCL:JCM