St. Augustine Sch. v. Underly
| Decision Date | 19 September 2022 |
| Docket Number | 16-C-0575 |
| Parties | ST. AUGUSTINE SCHOOL, et al., Plaintiffs, v. JILL UNDERLY, in her official capacity as Superintendent of Public Instruction, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
DECISION AND ORDER
This case, which has a long procedural history, involves a Wisconsin law that requires local school districts to provide transportation benefits to private schools. See Wis Stat. §§ 121.51, 121.54. Under the law, as interpreted by the Wisconsin Supreme Court, only one school affiliated with or operated by a single “sponsoring group” may receive benefits within a single attendance area. The law allows religious schools to receive benefits. However, a religious denomination is considered a “sponsoring group” for purposes of the rule limiting benefits to one school per sponsoring group per attendance area.
In 2015, St. Augustine School applied for transportation benefits for three of its students. St. Augustine is a Roman Catholic school, and at the time it applied for benefits, a different Roman Catholic school, St. Gabriel, was already receiving transportation benefits for an attendance area that overlapped with St. Augustine's. For this reason, the local school district denied St. Augustine's benefits claim. St. Augustine then appealed to the state superintendent of public instruction, claiming that St Augustine, unlike St. Gabriel, was not affiliated with the Archdiocese of Milwaukee and therefore was not affiliated with or operated by the same sponsoring group as St. Gabriel. The state superintendent denied St Augustine's appeal.
Following the denial, St. Augustine and parents of some of its students filed the present action in Wisconsin state court against the school district and the superintendent. They alleged, among other things, that the denial of benefits violated their rights under state law and the Free Exercise and Establishment Clauses of the First Amendment. The defendants removed the case to this court. In June 2017, I issued an order denying relief on the plaintiffs' federal claims and relinquishing supplemental jurisdiction over the state claims. St. Augustine Sch. v. Evers, 276 F.Supp.3d 890 (E.D. Wis. 2017). The plaintiffs appealed, and the Seventh Circuit initially affirmed. St. Augustine Sch. v. Evers, 906 F.3d 591 (7th Cir. 2018). The plaintiffs then filed a petition for certiorari with the Supreme Court of the United States. The Supreme Court granted the petition, vacated the Seventh Circuit's order, and remanded the case to the Seventh Circuit for reconsideration in light of Espinoza v. Montana Department of Revenue, 591 U.S. __, 140 S.Ct. 2246 (2020).
On remand, the Seventh Circuit certified a question of state law to the Wisconsin Supreme Court. After the state supreme court answered the question, see St. Augustine Sch. v. Taylor, 398 Wis.2d 92 (2021), the Seventh Circuit reconsidered the case and decided that, as a matter of state law, the plaintiffs were entitled to transportation benefits. St. Augustine Sch. v. Underly, 21 F.4th 446 (7th Cir. 2021). The court also concluded that, because the plaintiffs were entitled to benefits under state law, the court did not need “to reach any constitutional issues in this case.” Id. at 451. The Seventh Circuit remanded the case to me to determine whether any plaintiff was entitled to monetary damages or injunctive relief.
As discussed in more detail below, the Seventh Circuit's latest opinion creates a bit of a mystery. The court said that it was deciding the case under state law, but by that point in the case the plaintiffs had abandoned their state-law claims. Moreover, the court determined that a decision on federal constitutional issues was unnecessary, even though those issues were the only ones remaining in the case and formed the basis for the plaintiffs' claims for damages. These aspects of the court's opinion have led to a dispute among the parties over what I am to decide on remand. The plaintiffs contend that I must decide the merits of their federal claims, while the defendants contend that I am limited to determining whether the plaintiffs are entitled to damages or injunctive relief under state law.
In this opinion, I attempt to carry out the Seventh Circuit's instructions.
Wisconsin law requires the school board of a school district to provide each student residing in the district with transportation to and from his or her school if the student resides two miles or more from the school. Wis.Stat. § 121.54(2). The school board must provide transportation even to students who attend a private school-even a religious private school-but only “if such private school is a school within whose attendance area the pupil resides” and the school is located either within the school district or within five miles of the district's boundaries. Id. § 121.54(2)(b)1. The “attendance area” is the geographic area designated by the private school as the area from which it draws its students, but the school board of the district must also approve the attendance area. Id. § 121.51(1). If the private school and the school board cannot agree on the attendance area, the state superintendent of public instruction must, upon the request of the private school and the school board, make a final determination of the attendance area. Id. As is relevant to this case, the law provides that “[t]he attendance areas of private schools affiliated with the same religious denomination shall not overlap.” Id.
To avoid a constitutional problem, the Wisconsin Supreme Court long ago determined that the prohibition on overlapping attendance areas must apply to all private schools, not just to religious private schools. State ex real. Vanko v. Kahl, 52 Wis.2d 206, 215 (1971). The court understood the statute to prohibit “overlapping in attendance area boundary lines as to all private schools affiliated or operated by a single sponsoring group, whether such school operating agency or corporation is secular or religious.” Id. The Vanko court recognized that this interpretation of the statute seemed to reduce the “same religious denomination” sentence in § 121.51 to “mere surplusage.” Id. However, the court determined that this sentence still added something to the statute, which was “to make ‘affiliated with the same religious denomination' the test of affiliation in a single school system rather than operation by a single agency or set of trustees or religious order within a particular religious denomination.” Id. The court gave the following example:
[The sentence] means that, if the Franciscan Order of the Roman Catholic church operates a school in the northern part of the Racine district, and the Jesuit Order operates a school in the southern part of the district, they are to be considered, along with diocesan schools, as part of the Catholic school system of Racine because all are “affiliated with the same religious denomination.”
In a subsequent case, Holy Trinity Community School, Inc. v. Kahl, 82 Wis.2d 139 (1978), the court considered the question of how state officials were to determine whether a private school is affiliated with a particular religious denomination. The court concluded that, to avoid “excessive entanglement of state authority in religious affairs,” Id. at 150, state officials could not determine the affiliation of a religious school by monitoring and evaluating its practices or personnel, Id. at 150-53. Instead, officials were to “accept the professions of the school and to accord them validity without further inquiry.” Id. at 155 (emphasis added).
St. Augustine is a private elementary and high school that, at the time when this action was filed, was located in Hartford, Wisconsin. It has since relocated by a few miles to Colgate, Wisconsin, but this move did not affect its attendance area. The school has described itself to this court as “an independent religious school that teaches and operates in a manner that its Board of Directors believes is consistent with the longstanding traditions of the Catholic faith.” (Decl. of Tim Zignego ¶ 3, ECF No. 26.) The school is controlled by its own board of directors and is not affiliated with the Archdiocese of Milwaukee or any religious order of the Catholic church.
From 2015 to 2021, plaintiffs Joseph and Amy Forro sent their three children to St. Augustine.[1] During those years, the Forros lived within the Friess Lake School District, which, in 2018, merged with another school district to become the Holy Hill Area School District. On April 27, 2015, St. Augustine sent a letter to the school district requesting transportation benefits for the Forro children pursuant to Wis.Stat. § 121.54. In the letter, St. Augustine described itself as “an independent, private Catholic school.” (Zignego Decl., Ex. D at 1, ECF No. 26-4.) St. Augustine also stated that it was not affiliated with the Archdiocese of Milwaukee. (Id.)
In responding to St. Augustine's request for benefits, the school district noted that it already provided transportation benefits to St. Gabriel, a Roman Catholic school that had the same attendance area as St. Augustine. (Zignego Decl., Ex. G, at 1, ECF No. 267.) The school district acknowledged that St. Augustine was “incorporated under a different charter” than St. Gabriel, but it concluded that because both schools claimed affiliation with the religious denomination known as Roman Catholicism, the school district could not provide the Forro children with transportation to and from St. Augustine. (Id.)
After St. Augustine and the school...
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