Deutsch v. Teel
| Decision Date | 12 September 1975 |
| Docket Number | No. 74-C-630.,74-C-630. |
| Citation | 400 F. Supp. 598 |
| Parties | Henri Z. DEUTSCH et al., Plaintiffs, v. Dwight TEEL, acting Superintendent of Schools of the City of Milwaukee, et al., Defendants, and Barbara Thompson, Superintendent of the State of Wisconsin Department of Public Instruction, Intervening Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Alan Marcuvitz and Howard B. Schoenfeld, Peregrine, Marcuvitz, Cameron, Peltin, Hersh & Lensky, S.C., Milwaukee, Wis., for plaintiffs.
Patrick B. McDonnell, Asst. City Atty., Milwaukee, Wis., John William Calhoun, Asst. Atty. Gen., Madison, Wis., for defendants.
Before FAIRCHILD, Chief Circuit Judge, and REYNOLDS and WARREN, District Judges.
This is an action whereby the named plaintiffs, on behalf of themselves and the class they represent, seek declaratory and injunctive relief to restrain the enforcement of a Wisconsin statute regulating the busing of school children; in the alternative, the plaintiffs seek to restrain the enforcement of the policy of the Board of School Directors of the City of Milwaukee through which the provisions of the questioned state statute have been implemented.
The controversy at issue here concerns the recent relocation of Hillel Academy, a private school in the Milwaukee metropolitan area: formerly located within the City of Milwaukee, it has since moved to facilities at a point some 400 feet beyond the city limits. The plaintiffs in the action are a class of persons who are parents of those Hillel Academy pupils enrolled in kindergarten or grades one through six and whose residence is in the City of Milwaukee at a point greater than two miles from the current location of the Academy. Although they were provided with state-financed school bus service prior to the change of situs, this service has been denied them since that move. The defendants include the Acting Superintendent of Schools of the City of Milwaukee, one Dwight Teel, and the individual members of the Board of School Directors of the City of Milwaukee. The Superintendent of the State of Wisconsin Department of Public Instruction has been allowed to enter the action as an intervening defendant.
The action is brought pursuant to 42 U.S.C. § 1983; jurisdiction lies under the provisions of 28 U.S.C. § 1343. Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S.Ct. 1113, 31 L. Ed.2d 424 (1972). The complaint charges that deprivations of rights, privileges and immunities secured by the Constitution and laws of the United States have been inflicted by the defendants under color of state law, and seeks declaratory and injunctive relief.
On December 30, 1974, a complaint and a motion for a temporary restraining order were filed on behalf of the named plaintiffs. A hearing on that matter was held on January 2, 1975, and, by order dated January 6, 1975, the single district judge issued a request that a three-judge court be convened under the provisions of 28 U.S.C. § 2284; he also exercised his power under 28 U.S.C. § 2284(3) to enter a temporary restraining order to preserve the status quo pending further action by the three-judge panel. On February 7, 1975, the single district judge, pursuant to 28 U.S. C. § 2284(5), ordered that the action proceed as a class action under the terms of Rule 23(b)(2), Federal Rules of Civil Procedure. On March 26, 1975 a hearing was held before this three-judge court and counsel for each party were allowed to present their respective positions as to the merits of the various contentions that have been raised.
After due consideration of the position of each party, we find that the distinctions created by the classifications of school children effected by statute at issue here and the policy of the Board of School Directors of the City of Milwaukee implement no legitimate state interest and are without rational bases in the context of this case. The members of the Board of School Directors for the City of Milwaukee are to be permanently enjoined from allowing a situation to exist whereby the parents of pupils at Hillel Academy are denied publicly-financed school bus service while such is provided to other Milwaukee residents whose children attend schools located within the city boundaries and who are otherwise similarly situated.
The people of Wisconsin, in their collective wisdom, have created a constitutional provision to insure that their government does not act to establish or infringe upon the free exercise of religion within the State:
Article I, Sec. 18, Constitution of Wisconsin
The foregoing provision has frequently been the subject of litigation in the past as the courts applied it to the area of transportation of private or parochial students. Many such questions were laid to rest with the adoption by the voters of a constitutional amendment effective as of April, 1967:
"Nothing in this constitution shall prohibit the legislature from providing for the safety and welfare of children by providing for the transportation of children to and from any parochial or private school or institution of learning."
Pursuant to this authority, a statutory scheme has been created to allow for publicly-financed bus transportation of certain students attending private schools. The general rules in that regard are set forth in § 121.54 Wis.Stats. which provides in pertinent part as follows:
"Except as provided in sub. (1) or otherwise provided in this subsection, the school board of each district operating high school grades shall provide transportation to and from the school he attends for each pupil residing in the school district who attends any elementary grade, including kindergarten, or high school grade at a private school located 2 miles or more from his residence, if such private school is a school within whose attendance area the pupil resides and is situated within the school district or not more than 5 miles beyond the boundaries of the school district measured along the usually traveled route." § 121.54(2)(b)(1), Wis.Stats.
The dictates of this statute are not absolute in nature however, for, by its very terms, § 121.54(2)(b)(1) is qualified by the provisions of § 121.54(1) Wis.Stats. It is this "city option" exception that is the subject of this litigation:
Because the school district that services the City of Milwaukee is coterminous with the city boundary, the Board of School Directors for the City of Milwaukee is relieved of the duty of busing Milwaukee-resident pupils to schools located beyond the city limits by virtue of § 121.54(1) Wis.Stats., unless it should determine to do so in its discretion. A review of the transportation policy for Milwaukee public schools reveals that the Board of School Directors has utilized the "city option" statute in allocating school bus service because there is no provision therein for busing students other than to and from public and private schools located within the City of Milwaukee itself. (See part I of the current Transportation Policy of the Milwaukee Public Schools, dated April 4, 1973, attached hereto as Appendix A.)
By virtue of the foregoing, it has come to pass that the class of plaintiffs in this action, residents of the city of Milwaukee otherwise eligible for state financed school bus service under the standard imposed by the Wisconsin statutes and the city transportation policy, have been denied this service through the operation of the city option exception embodied in § 121.54(1) because the school to which bus service is sought is not within the city boundaries. The plaintiffs claim that both on its face and as implemented by the policy of the local Board of School Directors, § 121.54(1) Wis.Stats. operates to create an untenable distinction among school children so as to deny them equal protection of the law as guaranteed by the fourteenth amendment to the United States Constitution.
At the outset it is necessary for this Court to determine the proper test by which this statute and policy are to be judged. Where, as here, social welfare legislation is subjected to attack under the equal protection clause of the fourteenth amendment to the United States Constitution, the courts have traditionally utilized a two-tiered analysis whereby, unless fundamental personal freedoms are involved so as to require the state to establish the presence of a compelling interest, deference is given the legislative determinations so long as some rational basis therefor can be found.
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Finkel v. NY CITY BD. OF ED.
...relieve overcrowding in schools; and (d) the Jewish Foundation and Bais Yakhov schools of Staten Island, which have limited mileage variances. 2Deutsch v. Teel, 400 F.Supp. 598 (E.D.Wis. 1975) (three-judge court), relied on by plaintiff, is readily distinguishable. There the court held that......
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O'CONNELL v. Kniskern
...will eventually be rectified by the democratic process . . . .' Ibid." Plaintiffs argue that the case is controlled by Deutsch v. Teel, D.C., 400 F.Supp. 598 (1975). In that case the Milwaukee School District transported students to public and private schools within the Milwaukee city limit......
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Young v. Board of Ed., Joint Dist. No. 10, of Village of Mukwonago
...uniformity in the minimum distance that pupils attending public and private schools will be transported. . . .'9 Deutsch v. Teel (E.D.Wis.1975), 400 F.Supp. 598.10 Id. at pages 604, 605.11 Id. at page 601.12 Respondent's Brief at page 12.13 Respondent's Brief at page 14.14 Sec. 251.09, Stat......