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  • WisBar News
    October 16, 2018

    Private Religious School Seeking State Subsidies Loses Seventh Circuit Appeal

    Joe Forward

    Church and State

    Oct. 16, 2018 – State law requires subsidized bus transportation for children attending private school, in some cases. Recently, the U.S. Court of Appeals for the Seventh Circuit upheld (2-1) a decision to deny such benefits to a private, religious school.

    Wis. Stat. section 121.54 requires transportation aid for students attending private schools located within the “attendance area” of a public school district. However, “private schools affiliated with the same religious denomination” cannot overlap.

    In other words, transportation subsidies are not available to two private schools with the same religious denomination, in the same attendance area. Only one can receive subsidies, unless one of the schools limits its enrollment to pupils of the same sex.

    Thus, when the Friess Lake School District declined to pay transportation subsidies for students at the St. Augustine School, which is located with the district, St. Augustine School sought reconsideration from Tony Evers, superintendent of Wisconsin schools.

    Evers upheld the decision, noting St. Augustine described itself as a private Catholic school and there was already a Catholic school receiving bus transportation subsidies with the “attendance area” of the Friess Lake School District: St. Gabriel School.

    St. Augustine School – and Joseph and Amy Forro, parents of children who attend St. Augustine School – sued Evers as state superintendent, arguing he denied benefits in violation of the Establishment and Free Exercise Clauses of the First Amendment.

    The U.S. District Court for the Eastern District of Wisconsin granted summary judgment to Evers and 2-1 majority for the Seventh Circuit Court of Appeals recently affirmed.

    Statute is Neutral, Generally Applicable

    In St. Augustine School v. Evers, No. 17-2333 (Oct. 11, 2018), a 2-1 majority found no constitutional violations in denying transportation subsidies under the Wisconsin statute.

    First, the majority rejected the plaintiffs’ claim that denying benefits violated their First Amendment rights by depriving the school of a public benefit on the basis of religion.

    “[T]his 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,” wrote Chief Judge Diane Wood.

    The majority noted a Wisconsin Supreme Court decision that says the limitations imposed by Wis. Stat. section 121.51 are neutral, generally applicable, and apply “to all private schools affiliated or operated by a single sponsoring group, whether such school operating agency or corporation is secular or religious.”

    Thus, if the attendance area contained two Montessori schools, only one would receive bus transportation subsidies. That is, the statute applies to religious and secular private schools alike, and statutes of neutral and general application are not unconstitutional.

    “The reason why St. Augustine cannot demand services within its desired attendance zone is not because it is a Catholic school; it is because – by its own choice – it professes to be affiliated with a group that already has a school in that zone,” Wood wrote.

    “By the same token, Wisconsin is not denying the Forros a transit subsidy because they are Catholic or because they seek to send their children to Catholic school. It funds transportation for all the Catholic families who send their children to St. Gabriel.”

    Finally, the majority rejected the plaintiffs’ claim that the state violated the Establishment Clause by probing deeper into St. Augustine’s religious affiliation.

    That is, the school’s articles of incorporation say it is a nondenominational, Christian school, and the inquiry into whether the school was Catholic should have stopped there.

    But the majority disagreed. “The defendants did not independently assign the label ‘Catholic’ to St. Augustine,” Chief Judge Wood wrote. “St. Augustine did.

    “The defendants read and credited St. Augustine’s statements on its website and busing request form that it was Catholic – specifically a Roman Catholic – school.”

    The majority said the state could take the school’s chosen label “at face value,” and there is no rule that requires the state to rely exclusively on information with the articles of incorporation in determining whether a private school is entitled to benefits.

    “In the present case, both St. Augustine and St. Gabriel self-designated as Roman Catholic, and that is enough,” wrote Chief Judge Wood, joined by Judge Michael Kanne.

    “[L]abels may not fully capture the plurality of religious beliefs in America. But for Wisconsin’s statute to pose any meaningful limitation on the state’s provision of busing, school districts must be able to rely on self-adopted labels.”


    Judge Kenneth Ripple dissented, concluding that Superintendent Evers was required to base his decision on the articles of incorporation and the school’s bylaws in determining its religious affiliation, and looking beyond that was constitutionally impermissible.

    “Rather than grounding his decision in the articles of incorporation and the by-laws as he was required to do under state law, he decided to undertake an independent investigation and rested his decision on statements he found on St. Augustine’s website,” wrote Ripple, noting problems with a “label” approach to the analysis.

    Just because schools describe themselves with the label “Catholic” does not mean they are “affiliated,” as that term is used in the bus subsidy statute, Ripple explained.

    “I suggest, instead, that the Constitution requires the state to rely on the same neutral principles it would apply to a non-religious school,” Ripple wrote.

    “It should accept, as the Wisconsin courts certainly would, St. Augustine’s independent corporate structure as proof that it is not ‘affiliated’ with St. Gabriel.”

    Judge Ripple said a “label methodology” is unworkable “as society continues to grow more and more pluralistic in its religious beliefs.”

    He also said the majority’s opinion is hard to square with U.S. Supreme Court precedent that denying generally available benefits based on religious identity is unconstitutional.

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