St Augustine School et al v. Evers et al
Filing
81
DECISION AND ORDER signed by Judge Lynn Adelman on 9/19/22. IT IS ORDERED that the plaintiffs' motion for summary judgment (ECF No. 59 ) is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that the school district's motion for su mmary judgment (ECF No. 68 ) is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that the superintendent's motion for summary judgment (ECF No. 65 ) is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that the superintendent's motion to dismiss (ECF No. 65 ) is DENIED. FINALLY, IT IS ORDERED that the Clerk of Court shall enter final judgment. (cc: all counsel)(kmr)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ST. AUGUSTINE SCHOOL, et al.,
Plaintiffs,
v.
Case No. 16-C-0575
JILL UNDERLY, in her official capacity
as Superintendent of Public Instruction,
et al.,
Defendants.
______________________________________________________________________
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
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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.
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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.
I. BACKGROUND
A.
Wisconsin’s System for Providing Transportation Benefits to Private
Schools
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
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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.”
Id. at 215–16.
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
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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).
B.
The Plaintiffs’ Requests for Transportation Aid
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,
1
Because the Forros no longer send their children to St. Augustine, their claim for
injunctive relief is moot. However, they are still proper parties because they seek
damages for the denial of transportation aid for the years in which they sent their children
to St. Augustine.
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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 district failed to agree on an attendance area,
they submitted their dispute to the state superintendent of public instruction for a final
determination under Wis. Stat. § 121.51(1). In its letter to the superintendent, St.
Augustine argued, as it did to the school district, that its attendance area could overlap
with St. Gabriel’s because St. Gabriel was a Roman Catholic school affiliated with the
Archdiocese of Milwaukee, while St. Augustine was independent of the Archdiocese.
(Zignego Decl., Ex. I, at 1–2, ECF No. 26-9.) The school district argued that St. Augustine
and St. Gabriel could not have overlapping attendance areas because they both
described themselves as Catholic schools and therefore were, for purposes of
§ 121.51(1), affiliated with the same religious denomination, even if they were each
incorporated under a different charter. (Aff. of Laura Varriale, Ex. F, ECF No. 33-6.) The
school district provided the superintendent with print-outs from St. Augustine’s website,
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which described the school as “an independent and private traditional Roman Catholic
School.” (Id. at ECF p. 5 of 10.)
On March 10, 2016, the superintendent, through his designee, issued a written
decision. (Zignego Decl., Ex. J, ECF No. 26-10.) After stating the parties’ positions and
discussing the relevant legal authority, the superintendent noted that St. Augustine had
not submitted any governing documents, such as articles of incorporation, that identified
its religious affiliation. The superintendent determined that, in the absence of a statement
of religious affiliation in St. Augustine’s governing documents, the school district was
allowed to use the statement of religious affiliation on St. Augustine’s public website to
determine whether it was affiliated with the same religious denomination as St. Gabriel.
The superintendent also determined that the website showed that St. Augustine was “a
religious school affiliated with the Roman Catholic denomination.” (Id. at 7.) Because St.
Gabriel was also affiliated with that denomination and was already receiving state aid to
transport students within St. Augustine’s attendance area, the superintendent upheld the
school district’s determination that St. Augustine was not entitled to transportation aid.
C.
The Present Lawsuit and First Appellate Decision
After the superintendent affirmed the school district’s decision to deny
transportation aid to St. Augustine students, the plaintiffs filed this lawsuit in state court.
The defendants were the state superintendent (then Tony Evers) in his official capacity
and the Friess Lake School District. The plaintiffs alleged claims under state and federal
law. Their state-law claim sought either an order declaring that the decision by the school
district and the superintendent violated Wis. Stat. §§ 121.51–121.55, or certiorari review
of the superintendent’s administrative decision. (Compl. ¶¶ 71–73.) The plaintiffs’ federal
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claims alleged violations of the Free Exercise and Establishment Clauses and sought
relief under 42 U.S.C. § 1983.2 (Compl. ¶¶ 59–69.) The plaintiffs sought injunctive relief
against the superintendent in his official capacity and damages against the school district.
After the parties filed cross-motions for summary judgment, I determined that the
plaintiffs’ state-law claim presented a novel question of state law and relinquished
supplemental jurisdiction over it pursuant to 28 U.S.C. § 1367(c)(1). St. Augustine, 276
F.Supp.3d at 895. Turning to the federal claims, I first determined that the defendants had
not violated the Religion Clauses by treating a religious school differently than they would
have treated similarly situated nonreligious private schools. That was so, I determined,
because the rule allowing benefits for only one private school per sponsoring group per
attendance area applied to both religious and nonreligious schools. Further, the plaintiffs
had not presented evidence from which a reasonable trier of fact could conclude that the
defendants would have evaluated the plaintiffs’ claim for benefits differently had St.
Augustine been a nonreligious school. Here, I noted that the defendants might have
decided that two unaffiliated Montessori schools were part of the same “sponsoring
group,” just as they determined that two unaffiliated Catholic schools were part of the
same sponsoring group. Id. at 900–01.
I also addressed the plaintiffs’ claim that the defendants’ decisions resulted in
“excessive entanglement” and therefore violated the Establishment Clause. Here, I noted
that excessive entanglement, which is a concept that derives from Lemon v. Kurtzman,
403 U.S. 602 (1971), ordinarily applies to entire statutory schemes rather than to single
The plaintiffs also alleged that the defendants’ conduct violated the Equal Protection
Clause, but they have since abandoned that claim. (ECF No. 60 at 14 n.9.)
2
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decisions by government officials attempting to implement such schemes. Because the
plaintiffs were challenging a single, potentially erroneous application of state law rather
than the state law itself, I determined that excessive entanglement was not a viable legal
theory. St. Augustine, 276 F. Supp. 3d at 901–02. In the alternative, I found that the
defendants’ decisions did not result in excessive entanglement because the defendants
did not attempt to observe and classify St. Augustine’s religious practices and beliefs.
Instead, they accepted St. Augustine’s own representation of itself on its website as a
Roman Catholic school. Id. at 902–03.
The plaintiffs appealed the part of my summary-judgment decision that granted
judgment to the defendants on the merits of the federal claims. In their appellate brief, the
plaintiffs explicitly represented to the Seventh Circuit that they were not appealing my
decision to relinquish supplemental jurisdiction over the state-law claims. (Pls. App. Br.
at 14 n.5.) The defendants did not cross-appeal the judgment relinquishing supplemental
jurisdiction or argue that my decision to do so involved an abuse of discretion.
In its first decision in this case, the Seventh Circuit, with one judge dissenting,
affirmed the entry of judgment for the defendants on the merits of the federal claims. St.
Augustine, 906 F.3d at 600. The court summarized its decision as follows:
Contrary to the plaintiffs’ assertions, the record does not establish that the
Superintendent or the school district furnished or withheld public benefits
on the basis of non-neutral religious criteria. Nor does the evidence support
the claim that public officials impermissibly determined the school’s
affiliation on the basis of theology, ecclesiology, or ritual. Instead, it shows
that 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.
906 F.3d at 593.
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D.
Additional Appellate Proceedings
Following the Seventh Circuit’s initial decision, the plaintiffs filed a petition for a writ
of certiorari in the Supreme Court of the United States. After the Supreme Court decided
Espinoza v. Montana Department of Revenue, 591 U. S. __, 140 S. Ct. 2246 (2020), it
granted the plaintiffs’ petition, vacated the Seventh Circuit’s judgment, and remanded the
case to the Seventh Circuit for further consideration in light of Espinoza. On remand, the
Seventh Circuit asked the parties to file briefs that addressed the effect of the Supreme
Court’s decision in Espinoza and whether a then-undecided Supreme Court case, Fulton
v. City of Philadelphia, Penn., 593 U.S. __, 141 S.Ct. 1868 (2021), might affect the
outcome of this case.
After the parties filed the requested briefs, the Seventh Circuit entered an order in
which it stated that, although the case was originally about whether the defendants had
violated the Religion Clauses, it had since “boiled down to one dispositive question of
state law: what methodology for determining affiliation is required under the relevant
Wisconsin statutes?” St. Augustine School v. Taylor, No. 17-2333, 2021 WL 2774246, at
*2 (7th Cir. Feb. 16, 2021). The court expressed the view that, if the defendants had made
an error of state law, then there would be “no need for [the court] to say anything further
about the Religion Clauses of the U.S. Constitution.” Id. However, by that time, no statelaw claims were left in the case because I had relinquished supplemental jurisdiction over
them and no party had appealed that part of my decision. In any event, because the
Seventh Circuit deemed the state-law question dispositive, it decided, on its own initiative,
to certify the question to the Wisconsin Supreme Court. The court defined the certified
question in the following terms:
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For purposes of determining whether two or more schools are “private
schools affiliated with the same religious denomination” for purposes of Wis.
Stat. § 121.51, 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.
Id. at *3. The Wisconsin Supreme Court accepted the certification and (with two justices
dissenting) gave the following answer:
We conclude that, in determining whether schools are “affiliated with the
same religious denomination” pursuant to Wis. Stat. § 121.51, the
Superintendent is not limited to consideration of a school’s corporate
documents exclusively. 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.
St. Augustine Sch. v. Taylor, 398 Wis. 2d 92, 637 (2021).
Back in the Seventh Circuit, the court interpreted the answer provided by the
Wisconsin Supreme Court to mean that the superintendent was not limited to considering
St. Augustine’s corporate documents. St. Augustine, 21 F.4th at 448. However, the
Seventh Circuit also understood that “as a matter of state law,” the superintendent could
not “delve into ‘the school’s religious beliefs, practices, or teachings,’ because the latter
inquiry would transgress the First Amendment
prohibition against excessive
entanglement with religious matters.” Id. at 448–49 (quoting Lemon, 403 U.S. at 613).
The Seventh Circuit then concluded that, in the present case, the superintendent’s
decision “was not justified by neutral and secular considerations, but instead necessarily
and exclusively rested on a doctrinal determination that both St. Augustine and St.
Gabriel’s were part of a single sponsoring group—the Roman Catholic church—because
their religious beliefs, practices, or teachings were similar enough.” Id. at 449. The court
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reasoned that “[t]he fact that the Superintendent reached this result largely just by looking
at St. Augustine’s description of itself on its website does not matter—the doctrinal
conclusion was an inescapable part of the decision.” Id. Based on this reasoning, the
Seventh Circuit held that the superintendent violated state law by denying benefits to St.
Augustine. The court also determined that, in light of its state-law holding, it was not
“necessary to reach any constitutional issues in this case.” Id. at 451.
The Seventh Circuit then reversed my “grant of summary judgment in favor of the
state defendants.” Id. at 452–53. The court said nothing about that part of my decision or
the resulting judgment that relinquished supplemental jurisdiction over the plaintiffs’ statelaw claims. But the court also wrote that “[b]ecause the case was dismissed before the
district court had occasion to determine the amount of monetary damages (if any) to which
the Forros or St. Augustine might be entitled, or what type of injunctive relief (if any) for
any plaintiff is proper,” the court would remand the case to me “for further proceedings
consistent with this opinion.” Id.
The plaintiffs filed a petition for panel rehearing with the Seventh Circuit. They
pointed out that the only claim for relief before the court was their claim under 42 U.S.C.
§ 1983 for violation of the First Amendment. They also pointed out that, even if the
defendants had violated state law by denying them benefits, they were still entitled to a
decision on their constitutional claims because the existence of remedies under state law
does not preclude a cause of action under § 1983. The plaintiffs told the Seventh Circuit
that they believed that it was “unclear what cause of action [the Seventh Circuit] intends
the district court [to] assess on remand for purposes of awarding relief.” (Pet. for Reh’g at
1.) The plaintiffs also told the Seventh Circuit that they intended to pursue their federal
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claims on remand and asked the Seventh Circuit to clarify whether I was permitted to
consider them. (Id. at 7–8.) Without ordering a response from the defendants, the Seventh
Circuit denied the petition for rehearing and provided no further clarification of its opinion.
E.
Current Proceedings
When the case returned to this court, I asked the parties to file motions for
summary judgment in which they addressed the effect of the Seventh Circuit’s latest
opinion and argued the merits of any potential state and federal claims. Those motions
have been filed, and the superintendent (now Jill Underly) has renewed a motion to
dismiss the claims against her that she had filed during earlier proceedings in the district
court.
In their motion for summary judgment, the plaintiffs contend that I must decide the
merits of their constitutional claims. The plaintiffs insist that their state-law claims were
dismissed when I relinquished supplemental jurisdiction, and they do not contend that
they are entitled to relief under state law in this action. Instead, they contend that the
defendants violated the Free Exercise and Establishment Clauses of the First
Amendment when they denied transportation benefits to St. Augustine and the Forros for
each school year between 2015 and the present. The plaintiffs seek an injunction against
both defendants to provide benefits and damages against the school district under § 1983
for each year in which the Forros were denied transportation aid.
The defendants, in turn, contend that the Seventh Circuit’s latest decision
precludes me from considering any federal claims. The school district contends that I am
limited to declaring that St. Augustine and St. Gabriel are unaffiliated and determining
whether the plaintiffs are entitled to injunctive relief or damages under state law. The
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superintendent contends that I may not even consider whether the plaintiffs are entitled
to relief under state law because the plaintiffs did not appeal my decision to relinquish
supplemental jurisdiction over the state-law claim. The superintendent also contends that,
even if I may award relief in connection with a claim, the plaintiffs’ claim for an injunction
is moot because the school district, in accordance with the Seventh Circuit’s opinion, is
now providing transportation to St. Augustine students. In her motion to dismiss, the
superintendent also contends that she is not liable for damages, but this argument is
unnecessary because the plaintiffs are not seeking damages from the superintendent in
the first place. (Pls. Reply Br. at 30, ECF No. 72.) In the alternative, both defendants
contend that the plaintiffs’ federal claims fail on the merits.
II. DISCUSSION
The first order of business is to determine what the Seventh Circuit wants me to
decide on remand. Because the Seventh Circuit disposed of the appeal under state law,
said in its opinion that there is no need “to reach any constitutional issues in this case,”
St. Augustine, 21 F.4th at 451, and remanded the case for me to consider whether the
plaintiffs are entitled to injunctive relief or damages, the most natural interpretation of the
opinion is that the court implicitly reinstated the plaintiffs’ state-law claim and then
remanded for a determination of whether the plaintiffs are entitled to relief under state
law. Although the court did not expressly prohibit me from considering the merits of the
plaintiffs’ constitutional claims, such a prohibition seems to be implied in the court’s own
decision to refrain from deciding those claims. The court seems to have thought that a
decision in the plaintiffs’ favor under state law rendered a decision on the constitutional
claims unnecessary. And if such a constitutional decision was unnecessary on appeal,
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then it should also be unnecessary on remand to the district court. This is not a case in
which I declined to consider the constitutional claims prior to the appeal and the Seventh
Circuit remanded to me for a decision in the first instance. See, e.g., Planned Parenthood
of Ind. & Ky., Inc. v. Marion Cnty. Prosecutor, 7 F.4th 594, 606 (7th Cir. 2021) (taking no
position on constitutional arguments that the district court did not address and remanding
to the district court to consider them in the first instance). Instead, I decided those claims,
and the Seventh Circuit held that, in light of its resolution of the state-law issue, it did not
need to determine whether my decision was correct. All of this implies that the Seventh
Circuit believes that its decision under state law has removed the constitutional claims
from this case.
The plaintiffs contend that the Seventh Circuit’s decision does not preclude me
from considering the merits of their constitutional claims because the Seventh Circuit (1)
overlooked the fact that the plaintiffs had abandoned their state-law claim and (2) erred
in thinking that a decision under state law made consideration of the constitutional claims
unnecessary. Regarding the first point, the plaintiffs note that I remanded the state-law
claim to state court prior to the first appeal and that the plaintiffs did not challenge that
decision on appeal or otherwise put the state-law claim before the Seventh Circuit. The
plaintiffs expressly state that the state-law claim “is no longer at issue in this suit.” (Pls.
Br. at 14–15, ECF No. 60.) Regarding the second point, the plaintiffs cite several cases
supporting the proposition that the existence of overlapping state remedies does not
prevent a plaintiff from seeking relief under federal law via 42 U.S.C. § 1983. (Id. at 15
(citing, among other cases, Monroe v. Pape, 365 U.S. 167 (1961), and Zinermon v. Burch,
494 U.S. 113 (1990)).
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Although I generally agree with the plaintiffs on these points, I do not believe that
I am free to grant relief on the constitutional claims on remand. That is so because the
plaintiffs’ two points amount to an argument that the Seventh Circuit erred in holding that
a decision on the constitutional claims was unnecessary. A district court may not, on
remand, disregard the instructions of a higher court simply because it thinks that the
higher court made a mistake. See, e.g., Barrow v. Falck, 11 F.3d 729, 731 (1993); Cole
Energy Dev. Co. v. Ingersoll-Rand Co., 8 F.3d 607, 609 (7th Cir. 1993). There is an
exception to this rule that applies when “it is apparent that the higher court has committed
a serious and demonstrable error . . . in circumstances where correction by filing a petition
for rehearing in the higher court would not have been feasible.” Cole, 8 F.3d at 609. But
that exception cannot apply here because the plaintiffs filed a petition for rehearing on
this very point that the Seventh Circuit denied. Thus, to carry out the Seventh Circuit’s
instructions, I must decide whether the plaintiffs are entitled to an injunction and damages
under state law and also must abide by its express determination that a decision on the
constitutional claims is unnecessary.
Nonetheless, because the plaintiffs will almost certainly file another appeal, I
believe it makes sense to express my view on how the constitutional claims would turn
out if I were free to reconsider them. Expressing my view on the outcome of the
constitutional claims now avoids the possibility that the Seventh Circuit will determine that
I erred in thinking that its mandate precluded me from considering the constitutional
claims and then remanding the case to me for a third time to consider the merits in the
first instance.
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Below, I will first discuss whether the plaintiffs are entitled to relief under state law.
I will then indicate how I would decide the constitutional claims if I were free to decide
them.3
A.
Injunctive Relief and Damages Under State Law
As noted above, I understand the Seventh Circuit to have implicitly reinstated the
plaintiffs’ state-law claim and instructed me to determine whether the plaintiffs are entitled
to injunctive relief or damages under state law. However, in their briefs on remand, the
plaintiffs have refused to argue that they are entitled to relief under state law. Instead,
they continue to insist that their state-law claim was remanded to state court and is no
longer part of this case. (Pls. Br. at 14–15, ECF No. 60; Pls. Reply Br. at 6, ECF No. 72.)
The plaintiffs rely exclusively on federal law when arguing that they are entitled to
injunctive relief and damages (Pls. Br. at 28–31), and they point to no provision of state
law that entitles them to either an injunction or damages.
In response to the Seventh Circuit’s decision, the school district approved St.
Augustine’s attendance area and is now providing transportation to St. Augustine
students. (See ECF No. 78-1.) St. Augustine has therefore received some benefit from
the Seventh Circuit’s decision under state law. However, because the plaintiffs have
3
The defendants also raise issues concerning the relief to which the plaintiffs could obtain
in connection with their federal claims. For example, they claim that the request for an
injunction is moot because the school district has already approved St. Augustine’s
attendance area and is providing transportation to its students. However, I need not
decide these issues. Even if the request for injunctive relief is moot, the plaintiffs continue
to press a claim for damages against the school district, which means that there is still a
live controversy against at least one defendant. The existence of that live controversy
provides Article III jurisdiction to decide the merits of the plaintiffs’ claims. And because
the federal claims will ultimately fail on the merits, I need not resolve the parties’ disputes
over what remedies would be appropriate.
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explicitly disavowed any claim for relief under state law, I conclude that they have waived
any entitlement to damages or injunctive relief under state law. See, e.g., Walsh v. Alight
Solutions, LLC, 44 F. 4th 716, 723 (7th Cir. 2022) (waiver is the intentional relinquishment
or abandonment of a known right).
Although I do not have the benefit of briefing by the parties on this issue, I also
note that damages and injunctive relief appear to be unavailable in an action for common
law certiorari under Wisconsin law. See Coleman v. Percy, 96 Wis. 2d 578, 588–89
(1980). Because certiorari is the only state claim identified in the complaint (other than a
request for declaratory relief), see Compl. ¶¶ 71–73, the plaintiffs would likely not be
entitled to an injunction or damages under state law even if they did not abandon their
claim for such relief.
Still, because the Seventh Circuit has already found that the defendants violated
state law by refusing to approve St. Augustine’s attendance area, I will enter a declaratory
judgment that embodies this state-law ruling. However, I will award no other relief to the
plaintiffs under state law.
B.
Merits of Constitutional Claims
In their constitutional claims, the plaintiffs contend that the decisions of the school
district and the superintendent to deny transportation to St. Augustine students violated
both the Free Exercise and Establishment Clauses of the First Amendment. The plaintiffs
do not allege that any part of the Wisconsin framework for awarding transportation
benefits to private schools is unconstitutional on its face. (Pls. Br. at 19, ECF No. 60.)
Rather, the plaintiffs contend that the defendants’ erroneous application of that framework
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resulted in violations of the First Amendment that would not have occurred if the
defendants had followed state law. (Id. at 20.)
1.
Free Exercise Clause
“The Free Exercise Clause, which applies to the States under the Fourteenth
Amendment, ‘protects religious observers against unequal treatment’ and against ‘laws
that impose special disabilities on the basis of religious status.’” Espinoza, 140 S. Ct. at
2254 (quoting Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S.__, 137 S.Ct.
2012, 2021 (2017)). In cases decided since I last considered the plaintiffs’ claims, the
Supreme Court distilled its precedents “into the ‘unremarkable’ conclusion that
disqualifying otherwise eligible recipients from a public benefit ‘solely because of their
religious character’ imposes ‘a penalty on the free exercise of religion that triggers the
most exacting scrutiny.’” Id. at 2255 (quoting Trinity Lutheran, 137 S. Ct. at 2021). Relying
on these recent cases, the plaintiffs contend that the defendants’ decision to deny them
benefits violated the Free Exercise Clause because it penalized them for holding
themselves out as Roman Catholic.
The plaintiffs rely primarily on the Supreme Court’s decision in Espinoza, which
was the basis for the Supreme Court’s grant, vacate, and remand order in the present
case. Espinoza involved a Montana scholarship program that provided tuition assistance
to parents enrolling their children in private schools, including religious schools. Id. at
2251. After the Montana Supreme Court determined that the program violated a state
constitutional provision that prohibited aid to a school controlled by a “church, sect, or
denomination,” several parents asked the Supreme Court to rule that this application of
the Montana constitution violated the Free Exercise Clause. Id. at 2251–52. The Supreme
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Court held that it did. The court noted that the scholarship program created a generally
available public benefit, and that the application of the “no aid” provision barred religious
schools from that benefit “solely because of the religious character of the schools.” Id. at
2255. The Court stressed that, “[t]o be eligible for government aid under the Montana
Constitution, a school must divorce itself from any religious control or affiliation.” Id. at
2256. The Court said that “[p]lacing such a condition on benefits or privileges ‘inevitably
deters or discourages the exercise of First Amendment rights.’” Id. (quoting Trinity
Lutheran, 137 S. Ct. at 2022). The Court noted that the “[t]he Free Exercise Clause
protects against even ‘indirect coercion,’” and that “a State ‘punishe[s] the free exercise
of religion’ by disqualifying the religious from government aid as Montana did here.” Id.
The Court also noted that the application of the “no aid” provision burdened the parents’
free-exercise rights because it disqualified them from otherwise available benefits “if they
choose a religious private school rather than a secular one, and for no other reason.” Id.
at 2261.
In the present case, unlike in Espinoza, the state benefits program does not
exclude religious schools. To the contrary, the Wisconsin busing law expressly allows
religious schools to receive benefits. See Wis. Stat. § 121.51(1). St. Augustine and the
Forros were denied benefits not because St. Augustine was a religious school, but
because the benefits program limits benefits to one school per sponsoring group per
attendance area, and the defendants determined that St. Augustine was affiliated with a
sponsoring group that was already receiving transportation aid in the applicable
attendance area. As the Seventh Circuit put it in its original decision, the plaintiffs were
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denied benefits not because St. Augustine was a religious school, but because it was
“second in line.” St. Augustine, 906 F.3d at 597.
Of course, in its second opinion, the Seventh Circuit determined that the
defendants made a mistake in applying state law when they concluded that St. Augustine
and St. Gabriel were affiliated with the same sponsoring group. Still, the defendants did
not deny the plaintiffs a benefit “solely because of their religious character.” Espinoza,
140 S. Ct. at 2255 (emphasis added). Had St. Augustine applied for benefits before St.
Gabriel, the defendants undoubtedly would have granted its request, even if St. Augustine
professed to be Roman Catholic and even if the defendants processed its application
under the same erroneous view of Wisconsin law. This, again, shows that it was the
defendants’ regarding St. Augustine as being second in line, rather than St. Augustine’s
religious character alone, that resulted in the denial of benefits.
The plaintiffs recognize that because the Wisconsin busing statute does not
disqualify religious schools from receiving benefits, this case is different than Espinoza,
but they contend that this difference is immaterial because the defendants required
religious schools to “disclaim particular religious identities” to receive benefits. (Pls. Br. at
24 (emphasis in original).) But the defendants clearly did not deny the plaintiffs benefits
based on a belief that no school that calls itself Roman Catholic was eligible for benefits,
which is what they would have had to have done to impose a penalty on a particular
religious identity. The defendants denied the plaintiffs benefits because another school
that called itself Roman Catholic was already receiving benefits for the attendance area.
This decision was based on the statutory rule that only one school affiliated with a single
sponsoring group could receive benefits within a single attendance area.
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Moreover, the defendants’ misunderstanding of how to administer the “sponsoring
group” rule did not impose a penalty on religious schools that would not have been
imposed on nonreligious schools under the same circumstances. The Seventh Circuit
held that, to comply with the Wisconsin Supreme Court’s interpretation of the rule, which
was designed to avoid excessive entanglement in religious affairs, the defendants should
not have taken it upon themselves to decide that two schools that professed to be Roman
Catholic were affiliated with the same sponsoring group. St. Augustine, 21 F.4th at 450–
52. The defendants’ failure to comply with this interpretation of the statue potentially
implicated the Establishment Clause and the entanglement doctrine (which I discuss
below), but it did not result in a free-exercise violation because the defendants did not
apply a rule to religious schools that they would not have applied to nonreligious schools.
As the Seventh Circuit noted in its first opinion, the defendants’ interpretation of 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.” St. Augustine, 906 F.3d at 597. Thus, the “penalty” created by the
defendants’ erroneous interpretation of the statute applied equally to religious and
nonreligious schools. It cannot be regarded as a penalty on religious schools or particular
religious identities.
In their reply brief, the plaintiffs sum up their free-exercise argument by contending
that the defendants “put the Plaintiffs to a choice between exercising their religion and
participating in society on equal terms with others.” (Reply Br. at 16.) But, as explained
above, that clearly is not what the defendants did. In this case, the “equal terms” included
the rule allowing only one school per sponsoring group per attendance area. The
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defendants may have made a mistake in thinking that St. Augustine was affiliated with a
sponsoring group that was already receiving benefits for the transportation area, but they
did not single out religious private schools in general, or specific religious beliefs and
practices in particular, for unfavorable treatment. Thus, they did not put the plaintiffs to a
choice between exercising their religion and receiving benefits under the same terms as
any other school.
In short, because the rule as applied by the defendants did not cut St. Augustine
off from benefits “for no other reason” than that it was a religious school, Espinoza, 140
S. Ct. at 2261, the defendants’ denial of benefits did not violate the Free Exercise Clause.
2.
Establishment Clause
The Establishment Clause provides that “Congress shall make no law respecting
an establishment of religion.” The plaintiffs contend that the defendants’ erroneous
application of the Wisconsin busing law violated the Establishment Clause because it
resulted in “excessive entanglement” between government officials and religious
institutions. “Excessive entanglement” is one of the three prongs of the test announced in
Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the Lemon test, a court evaluating
whether a government practice violates the Establishment Clause must consider: (1)
whether the practice has a secular legislative purpose; (2) whether its principal or primary
effect either advances or inhibits religion; and (3) whether the practice fosters an
excessive government entanglement with religion. Id. at 612–13. The plaintiffs do not
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contend that the defendants’ decision violated the first two prongs. Rather, they focus on
excessive entanglement only.4
In its most recent decision in this case, the Seventh Circuit determined that the
defendants made an error of state law when they relied on St. Augustine’s selfidentification as a Roman Catholic school to conclude that St. Augustine and St. Gabriel
were affiliated. The Seventh Circuit understood the Wisconsin Supreme Court to have
interpreted the busing statute in a way that avoided entanglement concerns, and it found
that the defendants violated this prophylactic interpretation by making a “doctrinal
determination that both St. Augustine and St. Gabriel’s were part of a single sponsoring
group—the Roman Catholic church—because their religious beliefs, practices, or
teachings were similar enough.” St. Augustine, 21 F.4th at 449.
The plaintiffs contend that the court’s statement that the defendants made a
“doctrinal determination” must be regarded as a finding of excessive entanglement that
is now binding on me as law of the case. I disagree. First, the court expressly declined to
decide any constitutional issue, and so it has made no express or implied ruling on
excessive entanglement that could be regarded as law of the case. See, e.g., Delgado v.
U.S. Dep’t of Justice, 979 F.3d 550, 557 (7th Cir. 2020) (stating that the law-of-the-case
doctrine applies to issues “expressly or impliedly decided by a higher court”). Second,
In a recent case, the Supreme Court wrote that it “long ago abandoned Lemon and its
endorsement test offshoot.” Kennedy v. Bremerton Sch. Dist., 597 U.S. __, 142 S. Ct.
2407, 2427 (2022). Thus, it is possible that the Supreme Court no longer regards
excessive entanglement as an Establishment Clause violation. However, in Kennedy, the
Court was primarily concerned with the “endorsement test offshoot” of the Lemon test,
which is not implicated in this case. Thus, I will assume that the entanglement prong of
the Lemon test remains good law.
4
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even if the court’s conclusion that the defendants made a doctrinal determination is
binding on me, it would not follow that the defendants excessively entangled themselves
in religious affairs. That is so because “[e]ntanglement is a question of kind and degree.”
Lynch v. Donnelly, 465 U.S. 668, 684 (1984); Agostini v. Felton, 521 U.S. 203, 233 (1997)
(noting that “[n]ot all entanglements . . . have the effect of advancing or inhibiting religion”
and stating that the Court “[has] always tolerated some level of involvement between” the
state and religion). Thus, I must independently decide whether the defendants’ act of
entanglement amounted to excessive entanglement.
Turning to that question, I first note that we are here dealing with a single,
erroneous application of state law, not a state law or ongoing policy that itself fosters
entanglement with religion. The decision to deny the plaintiffs’ benefits was made as part
of a single administrative proceeding in which the decisionmakers attempted to apply the
busing law to a unique circumstance in which a school that described itself as Roman
Catholic claimed to be unaffiliated with another self-described Roman Catholic school.
This fact weighs against a finding of excessive entanglement, for there was no
overarching statutory scheme or policy that required repeated inquiry into religious affairs.
For two reasons, the plaintiffs dispute that this case involves only a single
application of the busing statute. First, they contend that the defendants applied their own
“policy for determining religious affiliation.” (Pls. Reply Br. at 11 (emphasis in original).)
The plaintiffs seem to be claiming that, if given the chance, the defendants would have
repeatedly denied benefits to schools that self-identified as being associated with the
same religious denomination as another school that already received benefits, even if the
school disclaimed affiliation with the other school. But there is no evidence that, in this
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case, the defendants were applying a preconceived policy rather than making an ad hoc
determination based on a unique set of facts. In any event, the important point is that the
defendants applied their erroneous methodology for determining affiliation only once, and
so no excessive entanglement actually occurred. Second, the plaintiffs contend that the
defendants’ decision had the effect of denying the plaintiffs benefits for multiple school
years. But even if that were true, it would not change the fact that there was only one
administrative decision and therefore only one instance of the defendants’ mistakenly
entangling themselves in a matter of religious doctrine.
The plaintiffs also contend that even a single governmental action can result in
excessive entanglement. They point out that, in New York v. Cathedral Academy, the
Supreme Court stated that an excessive-entanglement problem “cannot be dismissed by
saying it will happen only once.” 434 U.S. 125, 133 (1977). But the plaintiffs take this
statement out of context. The governmental action that the Court described as “happening
only once” was an audit of claims for government benefits “by approximately 2,000
[religious] schools in amounts totaling over $11 million.” Id. During the audit, the state
would have “review[ed] in detail all expenditures for which reimbursement is claimed,
including all teacher-prepared tests, in order to assure that state funds are not given for
sectarian activities.” Id. at 131–32. This audit would have involved thousands of individual
determinations of whether classroom materials contained religious content. Obviously,
such a massive inquiry is different in “kind and degree,” see Lynch, 465 U.S. at 684, than
a single administrative determination that two schools that call themselves Roman
Catholic are, for that reason, affiliated with the same religious denomination.
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Moreover, even if a single application of a law could rise to the level of excessive
entanglement, here the defendants’ involvement in religious affairs was not so great as
to be excessive. The defendants did not perform any “comprehensive, discriminating, and
continuing state surveillance” to determine whether St. Augustine and St. Gabriel were
Roman Catholic. Lemon, 403 U.S. at 619. Instead, the defendants used St. Augustine’s
own statement on its website that it was Roman Catholic to determine that it was affiliated
with Roman Catholicism, which is typically regarded as a single religious denomination
by non-experts. Although the Seventh Circuit stated in its latest opinion that the
defendants made a “doctrinal determination” that the “religious beliefs, practices, or
teachings” of St. Augustine and St. Gabriel were “similar enough,” St. Augustine, 21 F.
4th at 449, the court did not find that the defendants actually examined the religious beliefs
and practices of each school to make this determination. Instead, the court found that the
defendants’ reliance on the “Catholic” label alone inherently involved a doctrinal
determination, “even if only modestly.” Id. at 452.
Finally, in a separate case, the Seventh Circuit recognized that an impermissible
government involvement in a matter of religious doctrine will not necessarily rise to the
level of excessive entanglement. In Nelson v. Miller, a Catholic prisoner claimed that the
prison’s chaplain violated the Establishment Clause by requiring him, but not adherents
of other faiths, to provide written verification that his religious beliefs required him to
consume a vegan diet. 570 F.3d 868, 880–81 (7th Cir. 2009), abrogated on other grounds
by Jones v. Carter, 915 F.3d 1147, 1149–50 (7th Cir. 2019). The Seventh Circuit rejected
this claim. As part of its analysis, the Seventh Circuit noted that the chaplain “improperly
entangled him[self] in matters of religious interpretation” by sending the prisoner a letter
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in which he cited Bible passages and argued with the prisoner over whether he was
interpreting his faith correctly. Id. at 881. The chaplain’s belief that the plaintiff’s
interpretation of his own religion was incorrect caused him to deny the plaintiff’s request
for a religious diet. Id. at 872. However, recognizing that entanglement is a question of
“kind and degree,” the court concluded that the chaplain’s one-time act of entanglement
did not rise to the level of excessive entanglement and therefore did not violate the
Establishment Clause. Id.
The present case is like Nelson, in that the defendants’ foray into a matter of
religious doctrine, which resulted in a denial of a government accommodation, occurred
only once. Moreover, the defendants’ actions here were less invasive than was the
chaplain’s in Nelson because the defendants did not argue with the plaintiffs over the
correctness of their religious beliefs or practices. Instead, the defendants thought that, by
relying on St. Augustine’s description of itself as Catholic and not examining its actual
religious practices, they were avoiding entanglement in religious affairs. Accordingly,
Seventh Circuit precedent supports the conclusion that the defendants did not
excessively entangle themselves with religion.
In short, the defendants made an isolated determination that two schools that
described themselves as Roman Catholic were affiliated with the same religious
denomination. To make this determination, the defendants did not examine any school’s
or person’s actual religious beliefs or practices or purport to define the tenets of Roman
Catholicism. They simply took the schools’ professions at face value and decided that,
because the schools used identical words (Roman Catholic), they were affiliated. Their
actions did not involve “intrusive government participation in, supervision of, or inquiry
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into religious affairs.” Vision Church v. Vill. of Long Grove, 468 F.3d 975, 995 (7th Cir.
2006) (quoting United States v. Indianapolis Baptist Temple, 224 F.3d 627, 631 (7th
Cir.2000)). Accordingly, the defendants did not violate the Establishment Clause.
3.
Claim Based on the “Ministerial Exception”
Finally, the plaintiffs pursue a third legal theory that relies on Supreme Court cases
defining the so-called “ministerial exception” to generally applicable employment laws.5
Under this exception, which is based on the Religion Clauses, “courts are bound to stay
out of employment disputes involving those holding certain important positions with
churches and other religious institutions.” Our Lady of Guadalupe Sch. v. MorrisseyBerru, 591 U.S. __, 140 S.Ct. 2049, 2060 (2020); see also Hosanna-Tabor Evangelical
Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012). The holdings of these cases
have no application here because this case does not involve an attempt to enforce an
employment law against St. Augustine. Nonetheless, the plaintiffs contend that some of
the language used in the majority opinions in these cases shows that the defendants
violated the Religion Clauses when they determined that St. Augustine was affiliated with
St. Gabriel.
In the cases involving the ministerial exception, the Supreme Court stated that “the
Religion Clauses protect the right of churches and other religious institutions to decide
matters ‘of faith and doctrine’ without government intrusion.” Our Lady of Guadalupe, 140
S. Ct. at 2060 (quoting Hosanna-Tabor, 565 U.S. at 186). The Court then said that “[s]tate
interference in that sphere would obviously violate the free exercise of religion, and any
5
The defendants contend that the plaintiffs waived this argument by not presenting it in
earlier proceedings. Because the argument fails on the merits, I will not discuss waiver.
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attempt by government to dictate or even to influence such matters would constitute one
of the central attributes of an establishment of religion.” Id. The plaintiffs contend that the
defendants violated these principles when they determined that St. Augustine was
affiliated with St. Gabriel because they both used the label “Roman Catholic.” However,
the defendants did not interfere with St. Augustine’s decision-making on matters of faith
and doctrine or even attempt to influence those matters. Instead, they attempted to
identify St. Augustine’s religious denomination. Even if, in trying to identify St. Augustine’s
religious denomination, the defendants entangled themselves in religion, they certainly
did not try to change or influence St. Augustine’s actual religious beliefs, practices, or
teachings.
The plaintiffs seem to suggest that the defendants attempted to influence their
religious practices by denying them benefits on the ground that they called themselves
Catholic. However, as I explained in the context of the plaintiffs’ claim under the Free
Exercise Clause, the defendants did not deny the plaintiffs benefits because they were
Catholic but because they were second in line. Even under the defendants’ erroneous
interpretation of the busing law, the plaintiffs would have received benefits had St.
Augustine been the first Roman Catholic school to request benefits in the attendance
area. It is true that the busing law creates an incentive for a school to change its religious
affiliation if a school of the same denomination already receives benefits within the
attendance area—that’s what the school in Holy Trinity did, see 82 Wis.2d at 146—but it
does not follow from this that the state adopted the rule of one school per sponsoring
group per attendance area for the purpose of encouraging schools to change their
religious affiliations. Obviously, the purpose of the rule is to limit the local school district’s
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obligation to provide benefits to one school per sponsoring group, not to encourage
private schools to break away from sponsoring groups to qualify for benefits.
The plaintiffs also point to language in Our Lady of Guadalupe that deemphasizes
the role of religious titles in determining whether an employment position falls within the
ministerial exception:
If titles were all-important, courts would have to decide which titles count
and which do not, and it is hard to see how that could be done without
looking behind the titles to what the positions actually entail. Moreover,
attaching too much significance to titles would risk privileging religious
traditions with formal organizational structures over those that are less
formal.
140 S. Ct. at 2064. The plaintiffs contend that this language means that the defendants
violated the Religion Clauses when they determined that St. Augustine was affiliated with
a different school because both schools used the label “Roman Catholic.” But to make
this argument, the plaintiffs take the quotation from Our Lady of Guadalupe out of context.
The Court was not saying that the government violates the Religion Clauses every time
it assigns significance to a religious title or label. To the contrary, the Court’s prior case
involving the ministerial exception held that the title of the employee was a factor that a
court could consider when determining whether the exception applies. See HosannaTabor, 565 U.S. at 191–92. In the passage that the plaintiffs quote, the Court was
explaining that, because the lack of a religious title is not dispositive of whether an
employee holds a position of religious significance within the church, factors other than
the employee’s title must also be considered to determine whether the ministerial
exception applies. The Court was not implying that a single determination by the state,
made for purposes of administering a government benefits program, that imputed
significance to a religious label would violate the Religion Clauses.
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Accordingly, I reject the plaintiffs’ argument based on the ministerial exception.
III. CONCLUSION
For the reasons stated, IT IS ORDERED that the plaintiffs’ motion for summary
judgment (ECF No. 59) is GRANTED IN PART and DENIED IN PART. The motion is
granted to the extent that the court will enter the following declaratory judgment as a
remedy for the defendants’ violation of state law:
The court declares that the Friess Lake School District (now part of the Holy
Hill Area School District) and the Wisconsin Superintendent of Public
Instruction violated Wis. Stat. § 121.51(1) by failing to approve the
attendance area requested by St. Augustine School in 2015.
In all other respects, the motion is denied.
IT IS FURTHER ORDERED that the school district’s motion for summary judgment
(ECF No. 68) is GRANTED IN PART and DENIED IN PART. The motion is granted on
all claims other than the claim for declaratory relief under state law.
IT IS FURTHER ORDERED that the superintendent’s motion for summary
judgment (ECF No. 65) is GRANTED IN PART and DENIED IN PART. The motion is
granted on all claims other than the claim for declaratory relief under state law.
IT IS FURTHER ORDERED that the superintendent’s motion to dismiss (ECF No.
65) is DENIED.
FINALLY, IT IS ORDERED that the Clerk of Court shall enter final judgment.
Dated at Milwaukee, Wisconsin, this 19th day of September, 2022.
/s/Lynn Adelman______________
LYNN ADELMAN
United States District Judge
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