906 F.3d 591 (7th Cir. 2018), 17-2333, St. Augustine School v. Evers

Docket Nº:17-2333
Citation:906 F.3d 591
Opinion Judge:Wood, Chief Judge.
Party Name:ST. AUGUSTINE SCHOOL, et al., Plaintiffs-Appellants, v. Tony EVERS, in his official capacity, as Superintendent of Public Instruction, et al., Defendants-Appellees.
Attorney:Richard M. Esenberg, Attorney, Wisconsin Institute for Law & Liberty, Milwaukee, WI, for Plaintiffs-Appellants. Laura M. Varriale, Attorney, Wisconsin Department of Public Instruction, Lori M. Lubinsky, Kristin Renee Pierre, Attorneys, Axley Brynelson LLP, Madison, WI, for Defendants-Appellees.
Judge Panel:Before Wood, Chief Judge, and Ripple and Kanne, Circuit Judges. Ripple, Circuit Judge, dissenting.
Case Date:October 11, 2018
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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906 F.3d 591 (7th Cir. 2018)

ST. AUGUSTINE SCHOOL, et al., Plaintiffs-Appellants,


Tony EVERS, in his official capacity, as Superintendent of Public Instruction, et al., Defendants-Appellees.

No. 17-2333

United States Court of Appeals, Seventh Circuit

October 11, 2018

Argued November 29, 2017

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:16-cv-00575— Lynn Adelman, Judge .

Richard M. Esenberg, Attorney, Wisconsin Institute for Law & Liberty, Milwaukee, WI, for Plaintiffs-Appellants.

Laura M. Varriale, Attorney, Wisconsin Department of Public Instruction, Lori M. Lubinsky, Kristin Renee Pierre, Attorneys, Axley Brynelson LLP, Madison, WI, for Defendants-Appellees.

Before Wood, Chief Judge, and Ripple and Kanne, Circuit Judges.


Wood, Chief Judge.

St. Augustine School, along with Joseph and Amy Forro, sued Wisconsin’s Superintendent of Public Instruction and Friess Lake School District for refusing to provide school transportation (or equivalent cash benefits) to the Forros’ children. The school and family assert that the state denied them this benefit in violation of the Establishment and Free Exercise Clauses of the First Amendment.

The district court granted summary judgment for the defendants, and we now affirm. Contrary to the plaintiffs’ assertions, the record does not establish that the Superintendent or the school district furnished or withheld public benefits on the basis of non-neutral religious criteria. Nor does the evidence support the claim that public officials impermissibly determined the school’s affiliation on the basis of theology, ecclesiology, or ritual. Instead, it shows that public officials applied a secular statute that limits benefits to a single school affiliated with any sponsoring group— and, when St. Augustine declared itself to be Catholic, they took the school at its word.1

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Wisconsin law requires school districts to bus private-school students,2 WIS. STAT. § 121.54, but that obligation extends only to one private school "affiliated with the same religious denomination" within each geographic attendance area, WIS. STAT. § 121.51. In an effort to avoid an unconstitutional interpretation of this limitation, the Wisconsin Supreme Court has construed section 121.51 to reach any two private schools "affiliated or operated by a single sponsoring group, whether ... secular or religious." State ex rel. Vanko v. Kahl, 52 Wis.2d 206, 215, 188 N.W.2d 460 (1971) (emphasis added). According to that court, the statute’s reference to denominational affiliation is not meant to introduce a religious criterion, but rather to establish that the test of affiliation is not limited to "operation by a single agency or set of trustees or religious order." Id., at 215, 188 N.W.2d 460. For example, the court explained, schools operated by the Franciscan Order and Jesuit Order would "be considered, along with diocesan schools, as part of the Catholic school system ... because all are ‘affiliated with the same religious denomination.’ " Id., at 215-16, 188 N.W.2d 460. At the same time, officials may not determine the affiliation of a religious school by monitoring and evaluating its practices or personnel. Holy Trinity Cmty. Sch., Inc. v. Kahl, 82 Wis.2d 139, 154-58, 262 N.W.2d 210 (1978). Instead, public officials "are obliged to accept the professions of the school and to accord them validity without further inquiry." Id., at 155, 262 N.W.2d 210 (emphasis added).

This case arose when St. Augustine applied for transportation for its students, including the Forros’ children. Invoking section 121.51, the Friess Lake School District denied its request, and Wisconsin’s Superintendent of Public Instruction, Tony Evers, upheld that decision. At the relevant time, St. Augustine described itself as a Catholic school. In its request for busing, the school told the district that it was "an independent, private Catholic school." In the section of its website entitled "About Us," St. Augustine stated that it is "an independent and private traditional Roman Catholic School" that "loves and praises all the traditional practices of the Catholic Faith" and "recognizes its spiritual custodial duty of establishing an authentic Catholic environment."3

The problem was that there was already a Catholic school within the same catchment zone— St. Gabriel School, which was operated by the Archdiocese of Milwaukee. Relying on each school’s self-classification, the school district and Superintendent determined that both schools were affiliated with the same sponsoring group, as Vanko used that term. (They may have thought that if the Franciscans and Jesuits were considered as "the same" for purposes of Wisconsin law, then so were St. Augustine and St. Gabriel.) Because St. Gabriel had already qualified for busing, the district and Superintendent disclaimed any obligation under section 121.51 to provide transportation services or their monetary equivalent to St. Augustine’s students.

St. Augustine and the Forros sued the school district and Superintendent in state

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court for violations of their federal civil rights under 42 U.S.C. § 1983 and for violations of the state busing statute; the defendants removed the case to federal court. St. Augustine asserts that its students are entitled to publicly subsidized transportation and that, in rejecting their application, the state impermissibly probed into its religious beliefs. It maintains that even though it identifies itself as Catholic (specifying Roman Catholic in at least one place), it was nonetheless distinct from the diocesan schools in its curriculum and religious practices. The district court remanded the state claims to the state court and granted summary judgment in favor of the defendants on the federal claims. St. Augustine and the Forros appeal from that judgment.


Because this case comes to us following summary judgment, we have assessed the plaintiffs’ claims and evidence de novo, Spierer v. Rossman, 798 F.3d 502, 507 (7th Cir. 2015), mindful that summary judgment is appropriate in the absence of a "genuine dispute as to any material fact" if "the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For the plaintiffs to move ahead on their section 1983 claim, the record must contain evidence that would permit a trier of fact to find that "(1) they held a constitutionally protected right; (2) they were deprived of this right in violation of the Constitution; (3) the defendants intentionally caused this deprivation; and (4) the defendants acted under color of law." Donald v. Polk Cnty., 836 F.2d 376, 379 (7th Cir. 1988).

Plaintiffs argue that the application of section 121.51 deprived them of their First Amendment rights in two ways. First, they assert that the defendants violated the Free Exercise Clause by depriving St. Augustine (and the parents of its students) of a public benefit on account of their religion. As we explain in more detail below, this theory fails because, as construed by the Wisconsin Supreme Court, section 121.51 is a facially neutral and generally applicable law that deprives all private schools— religious and secular alike— of receiving a subsidy already claimed by another school affiliated with the same group or organization. Second, plaintiffs suggest that the defendants’ application of section 121.51 violated the Establishment Clause by entangling the state actors with religious doctrine and belief when they categorized St. Augustine as Catholic. This allegation lacks support in the record, which shows that it was St. Augustine— not the state— that chose to define itself as Catholic. Ironically, it is St. Augustine’s approach, not the state’s, that would require officials to look beyond outward expressions of affiliation to engage in potentially impermissible inquiries into the ecclesiological boundaries of religions and denominations. The district court thus properly dismissed this suit.


As a preliminary matter, plaintiffs incorrectly assert that a factual dispute precludes summary judgment. They believe that the record could establish that the defendants consulted St. Augustine’s original articles of incorporation, which declared the institution a nondenominational Christian school, before they rejected its busing application. Had the defendants known of the articles’ language, the argument goes, an impermissible inquiry into the school’s religious doctrine or practice must have prompted its classification as Catholic. But plaintiffs have failed to carry their burden of producing evidence to support

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their assertion...

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