Appeals Court Backs Wisconsin Limit on Private School Bus Transportation

By Mark Walsh — October 12, 2018 2 min read
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A federal appeals court has ruled that a Wisconsin school district did not have to provide bus transportation to students at a private religious school because, under state law, the district was already providing transportation for another private school “affiliated with the same religious denomination” in the same attendance area.

Over a sharp dissent, a panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled 2-1 that because St. Augustine School described itself as a Roman Catholic school, state law considered it to be affiliated with the same “sponsoring group” as a nearby Catholic school that was already receiving bus transportation from the Friess Lake School District.

“Public officials applied a secular statute that limits benefits to a single school affiliated with any sponsoring group—and, when St. Augustine declared itself to be Catholic, they took the school at its word,” said the 7th Circuit’s Oct. 11 opinion in St. Augustine School v. Evers.

St. Augustine, an elementary and secondary school in Hartford, Wis., and two parents argued that even though the school identifies as Catholic, it is separate from the Archdiocese of Milwaukee (which runs the nearby St. Gabriel School) and is run as a nondenominational Christian school. The school also argues that the Friess Lake district and the state superintendent of public instruction, Tony Evers—who also is the Democratic nominee for governor—impermissibly probed into its religious beliefs and character.

Upon the rejection of its transportation request, a decision affirmed by Evers, the school and the parents sued under the First Amendment’s free exercise of religion and establishment of religion clauses.

The claims were rejected by a federal district court, as well as the 7th Circuit panel majority.

The majority said the Wisconsin Supreme Court has interpreted the state statute as imposing a neutral and generally applicable limitation on transportation funding.

“Thus, [the statute] bars two self-identified Catholic schools from receiving transit subsidies, but it also bars funding two Montessori schools, two International Baccalaureate schools, or two French International schools,” Chief Judge Diane P. Wood wrote for the majority. “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.”

Writing in dissent, Judge Kenneth F. Ripple said that Evers did not base his decision denying transportation to St. Augustine on the school’s articles of incorporation, which refer to the school as non-denominational.

“He decided to undertake an independent investigation and rested his decision on statements he found on St. Augustine’s website,” Ripple said. “The materials submitted to the [state] superintendent made the superintendent well aware that St. Augustine is legally independent from St. Gabriel and the Archdiocese.”

“Today’s holding permits a local school board to deny children an important safety protection because their parents have concluded, based on their religious beliefs, that St. Augustine School embodies their personal faith commitment and that the Archdiocesan School does not,” Ripple said.

A version of this news article first appeared in The School Law Blog.