Janesville School Board learns more about China efforts

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Frank Schultz
Monday, September 23, 2013

JANESVILLE—Superintendent Karen Schulte has responded to calls for more information about her Janesville International Education Program with two lengthy memos and an update for the school board when it meets Tuesday.

The memos include details of an upcoming trip to China by several district staff members and a legal opinion that explains district thinking on the charging of tuition to foreign students.

District legal counsel David Moore wrote in his memo that in his opinion, the district can charge tuition, even though the state constitution states that “district schools shall be free and without charge for tuition.”

The state Constitution conflicts with federal law, however, which says the district must charge tuition, and federal law trumps any state law, Moore wrote.

The federal law in question requires that a school district that wants to accept Chinese students must be certified by the Student and Exchange Visitor Program, something for which the district has applied.

Once the district is certified, it can issue certificates of eligibility for student status, which will allow prospective students to complete their applications for F-1 visas that allow them to enter the United States, Moore wrote.

 The F-1 visa requires the foreign students to reimburse the school for the “full, unsubsidized per capita cost of providing education,” and that requirement conflicts with the state Constitution, Moore noted.

Moore believes the federal requirement overrules the state constitution, because of the U.S. Constitution's Supremacy Clause.

The U.S. Constitution states that it “shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

But Moore said his argument “is not the proverbial 'slam dunk'” because “the federal law does not require foreign students to come into states and pay tuition, but merely requires that, if they do come, they must pay tuition. However, we have a good argument.

“The worst-case scenario appears to be the possibility that a lawsuit might be instituted against the district for an alleged violation of the state law,” Moore continued. “It seems unlikely that such a lawsuit would be commenced by anyone other than a Chinese student or the parent of that student.”

Moore wrote it is “highly unlikely that any such suit would ever be filed, let alone successfully prosecuted. In short, our interpretation not only is reasonable, but appears unlikely to be successfully challenged …”

Moore notes that Janesville is not the only school district to run a tuition-charging program for Chinese students.

Moore contacted Newcomb School District in New York, which has run such a program for eight years. The New York state constitution has a provision similar to Wisconsin's, and the Newcomb program relies on the same legal argument that Moore laid out.

The Ladysmith School District in Wisconsin has been charging foreign students $18,900 a year for tuition, fees, room and board, Moore said, and the Ladysmith superintendent told Moore that Ladysmith also operates with the understanding that the F-1 visa requirement must be followed.

Moore's memo does not address the issue of charging more than the district's costs to generate revenue. Schulte said Sunday that the plan remains to generate revenue from the program.

Schulte said that the school board had told her to shoot for extra revenue of $5,000 per student in a deal she had been working on to bring Chinese students here, which ultimately fell through.

Schulte suggested that certain district services the foreign students would receive, such as those from guidance counselors, could be charged as district costs, even though the cost to supply the services—the counselors' compensation—would not increase. Those costs also could be considered revenue, she said.

The state Department of Public Instruction appears to agree with Moore. A department spokesman told The Gazette that “it is the department's understanding that certain visas require tuition to be charged to cover the full costs of education. Under the federal visa process, a school district must determine and charge its full costs of providing an education.”

Asked about charging more than the cost of the education, however, spokesman Patrick Gasper had no guidance.

“The district should consult with its legal team to determine the appropriate tuition to charge, taking into consideration state and federal law,” Gasper wrote in an email.


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