July 7, 2021 – The U.S. Court of Appeals for the Seventh Circuit asked the Wisconsin Supreme Court to clarify what information can be used to determine whether two private, religious schools are “affiliated” for purposes of public funding for transportation.

St. Augustine School, a Roman Catholic school, sued then-Superintendent of Public Instruction (SPI) Tony Evers (now governor) after he denied the school’s application for transportation subsidies under a statute that allows such funding for private schools.

Under the statute, however, only one school per “religious denomination” can receive public funding for each “attendance area.” Another Catholic school (St. Gabriel), Evers determined, was already receiving the public funding in that attendance area.

The case is pending in the Seventh Circuit Court of Appeals, which asked the state supreme court to determine what information the superintendent can consult in making the decision on public funding for transportation to private, religious schools in the state.

In St. Augustine School v. Taylor, 2021 WI 70 (July 2, 2021), a four-justice majority ruled the superintendent “is not limited to consideration of a school’s corporate documents exclusively” but can consult other sources of information.

“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,” wrote Justice Ann Walsh Bradley, joined by Justices Brian Hagedorn, Rebecca Dallet, and Jill Karofsky.

The majority opinion answers the question presented to it by the U.S. Court of Appeals for the Seventh Circuit. But other justices, in concurring and dissenting opinions, went further and made their opinions known on how the merits should be decided.

Essentially, four other justices would have concluded that St. Augustine School is entitled to public funding for transportation of its students, for different reasons.

Attendance Area Statute

Wis. Stat. section 121.51(1) says that “the attendance areas of private schools affiliated with the same religious denomination shall not overlap unless one school limits its enrollment to pupils of the same sex and the other school limits its enrollment to pupils of the opposite sex or admits pupils of both sexes.”

In other words, only one private, religious school of the same “religious denomination” can obtain the public funding for transportation. But St. Augustine argued that it is not the same “religious denomination” as St. Gabriel because – even though they are both “Catholic” schools – St. Augustine is not “affiliated” with the Archdiocese of Milwaukee.

Thus, St. Augustine considered itself non-denominational. The Friess Lake School District and then-SPI Evers denied St. Augustine’s request after examining the application filings, the school’s website, and the school’s bylaws.

St. Augustine, through the Wisconsin Institute of Law and Liberty (WILL) challenged Evers’ decision and argued that he was not allowed to base his decision on information from the school’s website, which described the school as “Roman Catholic.”

The website said St. Augustine “loves and praises all the traditional practices of Catholic faith.” Evers relied on these types of statements to determine that St. Augustine was “affiliated” with the Catholic “religious denomination.”

St. Augustine filed its case in Washington County Circuit Court but it was removed to federal court. The school asserted a 42 U.S.C. section 1983 claim, arguing the superintendent’s decision infringed on free exercise and establishment clause rights.

Federal District and Appeals Court Decisions

The superintendent won at the summary judgment stage in federal district court, concluding the superintendent (and the Friess Lake School District) did not engage in excessive entanglement with religion in reaching its decision.

St. Augustine appealed. A three-judge panel for the Seventh Circuit Court of Appeals upheld (2-1) the superintendent’s decision because St. Augustine “professes to be affiliated with a group that already has a school in that zone.”

The majority did not find an entanglement with religion problem. “Taking a party’s repeated chosen label at face value hardly constitutes a deep-dive into the nuances of religious affiliation,” wrote Chief Judge Diane Wood.

Judge Kenneth Ripple dissented, concluding the superintendent did not follow precedent and state law when going beyond the school’s articles of incorporation and bylaws in reaching the decision to deny based on “affiliation.”

The Seventh Circuit Court of Appeals denied to rehear the case en banc, and St. Augustine petitioned the U.S. Supreme Court for review. The U.S. Supreme Court granted review but did not issue a full opinion.

Instead, the U.S. Supreme Court vacated the Seventh Circuit’s decision with directions to reconsider the case in light of Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), a similar case involving tuition assistance for private school students.

The U.S. Supreme Court, in Espinoza, ruled that states don’t need to subsidize private education, “[b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

On remand, the U.S. Court of Appeals for the Seventh Circuit asked the Wisconsin Supreme Court to answer the certified question as related to determining “affiliation.”

That is, “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.”

Wisconsin Supreme Court Majority

The Wisconsin Supreme Court noted that it was not determining whether St. Augustine is “affiliated with the same religious denomination” as St. Gabriel, only the methodology that school districts and the superintendent can use to make that determination.

The majority examined two prior Wisconsin cases in involving section 121.51 to conclude that the Superintendent is not limited to consideration of a school's corporate documents exclusively.

“[S]imply accepting a school's profession of what it claims to be or with whom it is affiliated constitutes a neutral undertaking, as does the acceptance of a school's professions of affiliation in documents filed with the state,” Justice A.W. Bradley wrote.

“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.”

Concurrence and Dissent

Justice Hagedorn agreed with the majority opinion but wrote separately “to examine what a ‘religious denomination’ is under the statute and what it means for a school and a religious denomination to be ‘affiliated with’ one another.”

“Wis. Stat. § 121.51(1) prohibits overlapping attendance areas only when multiple schools have a mutual organizational relationship with a single religious denomination,” Justice Hagedorn wrote.

“In answer to the Seventh Circuit's certified question, a school's general description of its religious beliefs is unlikely to constitute relevant evidence because a statement of faith, even shared faith, does not demonstrate a mutual organizational relationship with a religious denomination. Affiliation requires more than a shared faith.”

Justice Hagedorn appeared to view, without expressly saying so, that St. Augustine would qualify for the public transportation subsidy because it does not have a “mutual organizational relationship” with the Archdiocese of Milwaukee, a religious organization.

“Thus, when Wis. Stat. § 121.51(1) asks whether two schools are ‘affiliated with the same religious denomination,’ the question is not whether both schools share the same creed, but whether they are both affiliated with a particular kind of religious organization – a religious denomination,” Justice Hagedorn wrote.

In a separate concurring opinion, Justice Patience Roggensack agreed with Justice Hagedorn: “Affiliated with” means there must be a “mutual organizational relationship.”

Justice Roggensack was more direct in voicing how she would decide the case on the merits. “I agree with Justice Hagedorn that to be ‘affiliated with’ in a way that will result in overlapping attendance areas of St. Augustine's and St. Gabriel's schools pursuant to Wis. Stat. § 121.51(1) requires a ‘mutual organizational relationship’ between St. Augustine and the religious denomination with which St. Gabriel is affiliated,” she wrote.

“That is, St. Augustine and the religious denomination, here the Archdioceses of Milwaukee, must mutually agree to be affiliated with one another.”

Justice Rebecca Bradley wrote a lengthy dissent, joined by Chief Justice Annette Ziegler, concluding Wis. Stat. section 121.51(1) is unconstitutional.

“[T]he majority answers the certified question in a manner which unconstitutionally entangles state authorities in the religious affairs of private schools,” wrote Justice R. Bradley, noting the Constitution prohibits faith-based discrimination in conferring public benefits. She said a 1971 decision interpreting the same statute should be overturned.

In State ex rel. Vanko v. Kahl, 52 Wis. 2d 206, 188 N.W.2d 460 (1971), in which the court ruled that transportation benefits must be denied unless a school is not affiliated with the same “sponsoring group” as another school in the attendance area.

This “judicial activism,” she said, made the statute apply to both private secular and religious schools, thereby saving the statute from a faith-based discrimination problem.

“Vanko embodies an egregious example of legislating from the bench and should be overturned,” Justice R. Bradley, noting the Wisconsin Supreme Court asked the parties in this case to brief whether the court should revisit Vanko and another related decision.

No party asked for Vanko to be overturned, but Justice R. Bradley said that that the law and not the parties dictate the court’s decisions.

“Had the majority confronted Vanko's errors, it would have necessarily concluded that Wis. Stat. § 121.51(1) is unconstitutional under the First Amendment to the United States Constitution,” Justice R. Bradley wrote.

Justice Bradley said the statute unconstitutionally denies a public benefit on account of religious identity, and that is faith-based discrimination under the First Amendment.

“If the financial cost of transporting students to school trumps our right to remain free from ‘unequal treatment’ based upon our religious identity, then the Free Exercise Clause would have little meaning,” Justice R. Bradley wrote.

She also said the statute impermissibly entangles the government in the affairs of religious schools, and did not agree with the methodology employed by the majority.

“The majority should have restricted the inquiry to purely secular sources such as corporate documents, leaving religious labels and alliances beyond consideration, but instead directs the Seventh Circuit to apply Wis. Stat. § 121.51(1) in a manner which impermissibly entangles the courts in matters of religion,” she wrote.