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  • January 14, 2022

    Reliance on Label ‘Catholic’ to Find Schools’ Attendance Areas Overlapped Was Unconstitutional

    The state Department of Public Instruction (DPI) impermissibly inquired into religious doctrine in determining that two private schools in Washington County were affiliated with the Roman Catholic Church, the U.S. Court of Appeals for the Seventh Circuit has ruled.

    Jeff M. Brown

    Drunk Driving

    Jan. 14, 2022 – T​he state Department of Public Instruction (DPI) impermissibly inquired into religious doctrine in determining that two private schools in Washington County were affiliated with the Roman Catholic Church, the U.S. Court of Appeals for the Seventh Circuit has ruled.

    In St. Augustine School v. Underly, 2021 WL 5998534 (Dec. 20, 2021), a three-judge panel held that by relying on a profession of Catholic affiliation on one of the school’s websites, DPI violated the First Amendment’s Establishment Clause.

    Overlapping Attendance Areas

    The dispute arose after DPI determined that St. Augustine School and St. Gabriel High School were both affiliated with a single sponsoring group – the Roman Catholic Church.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    The agency made that determination after students who attended St. Augustine applied to the Friess Lake School District to receive transportation to and from school.

    Under Wis. Stat. section 121.545, school districts are obligated to pay to transport a private school student to and from school if certain geographical conditions are met. One of those conditions is that the student reside in the attendance area of the private school that he or she is transported to.

    However, under section 121.51, the attendance areas of private schools affiliated with the same religious denomination or sponsoring group may not overlap.

    As a result, the school district denied transportation benefits to St. Augustine students because St. Gabriel, which is affiliated with the Archdiocese of Milwaukee, existed before St. Augustine, and St. Augustine’s attendance area overlapped with St. Gabriel’s.

    Appeal to DPI

    The parents of the children and St. Augustine appealed to the superintendent of DPI.

    On appeal, St. Augustine argued that it was and always had been independent of the archdiocese – no representative of the archdiocese had ever served as a director or officer of the corporation that owned the school, and no teacher or other school employee had ever been hired or paid by the archdiocese.

    The Superintendent of Public Instruction at the time, Tony Evers agreed with the school district. Evers concluded that St. Augustine was affiliated with the Roman Catholic denomination, in large part because the school’s website identified the school as a Catholic institution.

    In making his determination, the superintendent concluded that accepting the statements on the St. Augustine website did not constitute an excessive state entanglement in religious affairs – the standard established by the U.S. Supreme Court for assessing First Amendment Establishment Clause violations.

    Federal Lawsuit

    The parents and St. Augustine then sued DPI in Washington County Circuit Court, claiming that the school district’s denial of transportation benefits to their children violated the First Amendment’s Free Exercise and Establishment Clauses. The defendants removed the case to federal court.

    The federal district court granted summary judgment for DPI and the U.S. Court of Appeals for the Seventh Circuit affirmed that ruling. The parents then appealed to the U.S. Supreme Court.

    The Supreme Court vacated the Seventh Circuit’s decision and remanded the case to the Seventh Circuit for further consideration in light of Espinoza v. Montana Dept. of Revenue, 140 S. Ct. 2246 (2020).

    In that case, the Supreme Court held that the Free Exercise Clause prohibited a state from barring religious schools from receiving state scholarship money.

    Certified to State Supreme Court

    Upon remand, the Seventh Circuit certified a question to the Wisconsin Supreme Court.

    The question was: In determining whether private schools with overlapping attendance areas are affiliated with the same religious denomination, may the DPI superintendent consider a school’s self-identification or must the superintendent rely only on neutral criteria such as ownership, control, and articles of incorporation?

    The supreme court answered the question in July 2021.

    The court held that in conducting a secular and neutral inquiry as to whether two private schools attendance areas overlapped, the DPI superintendent was not limited to considering only a school’s corporate documents; he or she may also take into account the school’s professed self-identification.

    However, the superintendent was prohibited by the Establishment Clause from investigating the school’s religious beliefs, practices, or teachings.

    Reliance on Religious Label

    After the Wisconsin Supreme Court answered the certified question, the Seventh Circuit held that the federal district court erred by finding for the state.

    In an opinion written by Chief Judge Diane Wood, the appellate panel held that the DPI superintendent impermissibly determined that St. Augustine and St. Gabriel were both affiliated with the Roman Catholic Church.

    That meant that the superintendent’s decision was not the result of a secular and neutral inquiry as required by the Wisconsin Supreme Court’s decision.

    “Anything that involves the probing of beliefs held by a religious institution at issue is not permitted by state statute, because it is at least possible that such an inquiry may stumble into constitutional problems,” Judge Wood wrote.

    The DPI superintendent engaged in just such an impermissible probing of beliefs by concluding that because St. Augustine professed on its website to be a Catholic school, it was affiliated with the same sponsoring group as St. Gabriel.

    “That is what reliance on the label ‘Catholic’ entailed here, even if only modestly,” Wood explained. “Given the fluidity of religious labels and this country’s firm commitment to personal choice and religious diversity, it may be impossible to decide that two entities are affiliated by looking solely at the fact that they both use the same label,” Wood wrote.

    The court held that the DPI superintendent should have given the same weight to St. Augustine’s protestations regarding its independence from the archdiocese as it did the statements on the school’s website.

    “Moreover, we can find no reason why the state was entitled to accept St. Augustine’s self-characterization as Catholic, while at the same time to reject its vociferous insistence that its understanding of what it means to be Catholic is significantly different from that of the diocesan schools,” Wood wrote.


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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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