St. Augustine Sch. v. Taylor, 2021AP265-CQ

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: ANN WALSH BRADLEY, J.
• Citation: 2021 WI 70
• Parties: St. Augustine School, Joseph Forro and Amy Forro, Plaintiffs-Appellants, v. Carolyn Stanford Taylor in her official capacity as Superintendent of Public Instruction and Friess Lake School District, Defendants-Appellees.
• Docket Number: No. 2021AP265-CQ,2021AP265-CQ
• Decision Date: 02 July 2021

2021 WI 70

St. Augustine School, Joseph Forro and Amy Forro, Plaintiffs-Appellants,
v.
Carolyn Stanford Taylor in her official capacity as Superintendent of
Public Instruction and Friess Lake School District, Defendants-Appellees.

No. 2021AP265-CQ

STATE OF WISCONSIN IN SUPREME COURT

ORAL ARGUMENT: May 4, 2021
July 2, 2021

ATTORNEYS:

For the plaintiffs-appellants, there were briefs filed by Richard M. Esenberg, Brian McGrath, Anthony LoCoco, and Wisconsin Institute for law & Liberty, Milwaukee. There was an oral argument by Richard M. Esenberg.

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For the defendants-appellees Friess Lake School District, there was a brief filed by Lori M. Lubinsky, Danielle B. Tierney and Axley Brynelson, LLP, Madison.

For the defendant-appellee Superintendent Carolyn Stanford Taylor, there was a brief filed by Hannah S. Jurss, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Hanna S. Jurss.

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NOTICE

This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.

ANN WALSH BRADLEY, J., delivered the majority opinion of the Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined. ROGGENSACK, J., filed a concurring opinion. HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., joined.

CERTIFICATION of question of law from the United States Court of Appeals for the Seventh Circuit. Certified question answered and cause remanded.

¶1 ANN WALSH BRADLEY, J. This case is before the court on a certified question from the United States Court of Appeals

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for the Seventh Circuit. See Wis. Stat. § 821.01 (2019-20).¹ Explaining that the question boils down to one of methodology, it certified the following question:

For purposes of determining whether two or more schools are "private schools affiliated with the same religious denomination" for purposes of Wis. Stat. [§] 121.51, must the state superintendent rely exclusively on neutral criteria such as ownership, control, and articles of incorporation, or may the superintendent also take into account the school's self-identification in sources such as its website or filings with the state.

¶2 This question arises in the context of St. Augustine School's (St. Augustine) application for transportation benefits pursuant to Wis. Stat. §§ 121.51 and 121.54. Pursuant to these statutes, private schools are entitled to receive public funding to transport children to their schools, but only one affiliated school per "religious denomination" can receive the funding in each "attendance area."

¶3 St. Augustine's application was denied by the Superintendent of Public Instruction on the ground that another school of the same religious denomination within the same attendance area was already receiving the benefit. Specifically, the Superintendent determined that St. Gabriel, a Catholic school affiliated with the Archdiocese of Milwaukee, was already established in the same attendance area as St.

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Augustine, and St. Augustine also represented itself as a Roman Catholic school.

¶4 The certified question asks us only what information the Superintendent may consider in making a determination regarding whether two schools are "affiliated with the same religious denomination." It does not ask us to resolve whether St. Gabriel and St. Augustine are actually of the same religious denomination. The application of the facts to the law remains with the federal courts upon remand.

¶5 We conclude that, in determining whether schools are "affiliated with the same religious denomination" pursuant to Wis. Stat. § 121.51, the Superintendent is not limited to consideration of a school's corporate documents exclusively. In conducting a neutral and secular inquiry, the Superintendent may also consider the professions of the school with regard to the school's self-identification and affiliation, but the Superintendent may not conduct any investigation or surveillance with respect to the school's religious beliefs, practices, or teachings.

¶6 Accordingly, we answer the certified question and remand to the United States Court of Appeals for the Seventh Circuit for further proceedings.

I

¶7 St. Augustine is a private, religious school located within the boundaries of the Friess Lake School District (the School District). On its website, St. Augustine describes

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itself as "an independent and private traditional Roman Catholic School."

¶8 Plaintiffs Joseph and Amy Forro are parents whose children attend St. Augustine. Seeking transportation for their children to and from school, the Forros along with St. Augustine made a request for a busing contract from the School District pursuant to Wis. Stat. § 121.54.²

¶9 In the request, St. Augustine asserted that it is unaffiliated with the Archdiocese of Milwaukee. It stated: "Our governing body is our Board of Directors and we receive no funding from nor communicate with the Diocese on matters of education." As such, St. Augustine distinguished itself from St. Gabriel Catholic School, a diocesan Catholic school also located within the boundaries of the School District.

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¶10 The School District denied St. Augustine's request. In doing so, it noted that the Forros' address "is within the boundaries already approved for a Catholic School." Because the School District already bused students to St. Gabriel, it determined that it could not approve St. Augustine's request as it would constitute an overlapping attendance area.

¶11 With St. Augustine and the School District at odds, they sought a determination from the Superintendent.³ As it did before the School District, St. Augustine argued that it is not affiliated with the same religious denomination as St. Gabriel within the meaning of Wis. Stat. § 121.51(1). In support of this argument, it asserted:

Neither St. Augustine School, Inc., nor the school operated by the corporation, has ever been affiliated by control, membership, or funding with the Archdiocese of Milwaukee. No representative of the Archdiocese or a parish church of the Archdiocese has ever been a director or officer of St. Augustine School, Inc. No employees of St. Augustine School have ever been hired or compensated by the Archdiocese or a parish church of the Archdiocese. None of the religious instructors at St. Augustine School have

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ever been employed, assigned, or compensated for their work at St. Augustine School by the Archdiocese or a parish church of the Archdiocese.

¶12 Then-Superintendent Tony Evers⁴ agreed with the School District and denied St. Augustine's request for the transportation benefit. He concluded that "St. Augustine School, Inc. is a private, religious school affiliated with the Roman Catholic denomination." Further, he determined that "[t]he District already provides transportation to students attending St. Gabriel School, another private, religious school affiliated with the Roman Catholic denomination, the attendance area of which is co-extensive with the attendance area of the District." As a result, the Superintendent concluded that St. Augustine's attendance area overlaps that of St. Gabriel and thus "the Friess Lake School District is not required to provide transportation to students attending St. Augustine School, Inc."

¶13 The Superintendent's written decision reflects that he examined all of the parties' filings, St. Augustine's website, and the law in reaching his decision. He commented specifically on the school's bylaws and determined that nothing in that document "even hints that the School is a private religious school or a private, religious non-denominational school." The Superintendent also made specific comments on an amendment to St. Augustine's articles of incorporation changing its name from

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Neosho Country Christian School Inc. to its current moniker. As with the bylaws, the Superintendent concluded that "there is nothing in the School's name change amendment to its Articles of Incorporation that reveals anything about the School's nature, i.e., religious or non-religious, or its affiliation with a religious denomination."⁵

¶14 Finding these sources unhelpful in determining St. Augustine's "affiliation with a religious denomination" for purposes of Wis. Stat. § 121.51, the Superintendent looked to St. Augustine's publicly available website. Such a procedure was permissible, in the Superintendent's view, because "[r]eviewing a public website that is created and maintained by or on behalf of the School, and accepting the School's description of itself as set forth in that website, does not create an excessive entanglement of state authority in religious affairs." The Superintendent supported such a determination with the premise that "a public website, by its very nature, invites, and even wants persons to review it."

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¶15 Relying on statements on St. Augustine's website, the Superintendent agreed with the School District that St. Augustine is affiliated with the Roman Catholic denomination. He cited in his decision "two of a number of statements in the website pages from which any reasonable person would conclude the School is a religious school affiliated with the Roman Catholic denomination." The first of these statements sets forth that St. Augustine is "an independent and private traditional Roman Catholic School . . . [that is] an incorporation of dedicated families, who believing that all good things are of God, have joined together to provide the children of our Catholic community with an exceptional classical education." Additionally, the website provides: "[St. Augustine] loves and praises all the traditional practices of the Catholic faith."

¶16 St. Augustine responded to the adverse determination by filing suit in Washington County circuit court against the Superintendent and the School District, asserting a claim pursuant to 42 U.S.C. § 1983 that its rights under...