Opinion No. Oag 67-82, (1982) , 71 Op. Att'y Gen. 209 ( 1982 )

ED JACKAMONIS, Speaker State Assembly

On behalf of the Committee on Assembly Organization, you have asked me whether public school districts may charge students in driver education programs for the cost of providing the programs. Specifically, you ask whether such charges would contravene Wis. Const. art. X, § 3, which states that the Legislature shall provide for the establishment of district schools which shall be "free and without charge for tuition."

Since Wis. Const. art X, § 3, does not apply to vocational, technical and adult education school districts, see 64 Op. Att'y Gen. 24 (1975), I assume your question refers to other public school districts. Wisconsin Constitution art. X, § 3, applies, in such districts, to any course that is credited toward graduation, even though not a required course in the curriculum.Board of Education v. Sinclair, 65 Wis. 2d 179, 187,222 N.W.2d 143 (1974).

As you correctly point out, there is no statutory authority for such school districts to charge fees for driver education programs. See 57 Op. Att'y Gen. 45, 53 (1968). School districts, in exercising the delegated power of operating public schools, act as agencies of the state. Buse v. Smith, 74 Wis. 2d 550, 563,247 N.W.2d 141 (1976). Agencies of the state have only the powers which are either expressly conferred or necessarily implied by statute. Village of Silver Lake v. Department of Revenue,87 Wis. 2d 463, 468, 275 N.W.2d 119 (1978). Hence, public school districts may not charge students in driver education programs for the cost of providing the programs.

If there were such statutory authority, the determination as to whether it contravened Wis. Const. art. X, § 3, would depend upon what the student would receive for the fees charged by the school districts. In Sinclair, 65 Wis.2d at 182, it was held that, as used in the phrase "free and without charge for tuition to all children" in Wis. Const. art. X, § 3, the word "free" means without cost for physical facilities and equipment and "without charge for tuition" means there should be no fee charged for instruction. Hence, if the statute authorized charges for the cost of the school building and equipment, construction, rental or use of a building, automobile, movie projector or electronic apparatus, cost of fuel and light, etc., or for the cost of instruction, it would violate Wis. Const. art. X, § 3. If, however, the statute authorized charges for textbooks, workbooks, pencils, pens, notebooks, paper, etc., it would not violate Wis. Const. art. X, § 3.

BCL:JJG