St Joan Antida High School Inc v. Milwaukee Public School District
Filing
49
ORDER signed by Judge J.P. Stadtmueller on 2/28/2018: DENYING as moot 7 Defendant's Motion to Dismiss; GRANTING 36 Plaintiff's Motion for Leave to File Untimely Response to Defendant's Proposed Findings of Fact; DENYING 39 Pl aintiff's Motion for Oral Argument; DENYING 16 Plaintiff's Motion for Summary Judgment; GRANTING 22 Defendant's Motion for Summary Judgment; DISMISSING with prejudice Plaintiff's constitutional claim (Docket #1 at 3); DISMISSING without prejudice Plaintiff's state law claim (Docket #1 at 7); and DISMISSING CASE. See Order. (cc: all counsel) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ST. JOAN ANTIDA HIGH SCHOOL,
INC.,
Plaintiff,
Case No. 17-CV-413-JPS
v.
MILWAUKEE PUBLIC SCHOOL
DISTRICT,
ORDER
Defendant.
1.
INTRODUCTION
This is a case about student busing. The defendant, Milwaukee
Public School District (“MPS”), provides busing to qualifying public and
private school students in the city of Milwaukee. The plaintiff, St. Joan
Antida High School (“SJA”), a private school in Milwaukee, contends that
MPS’ student transportation policy treats MPS public school students
differently and more favorably than it treats similarly-situated private
school students.
SJA filed its complaint on March 21, 2017, alleging that MPS has
violated its rights and the rights of its students under the Equal Protection
Clause of the Fourteenth Amendment. (Docket #1). SJA also alleged a claim
against MPS under a Wisconsin state law, Wis. Stat. § 121.54, which
commands school districts in Wisconsin to transport public and private
school students with reasonable uniformity. Id.
The parties filed cross motions for summary judgment, and those
motions are now fully briefed and ripe for adjudication. (Docket #16-27, 30-
35, 37, 41).1 For the reasons explained below, MPS’ motion for summary
judgment will be granted, SJA’s motion for summary judgment will be
denied, and this action will be dismissed.2
2.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 states that the “court shall grant
summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016).
A “genuine” dispute of material fact is created when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes
all facts and reasonable inferences in a light most favorable to the nonmovant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir.
2016). In assessing the parties’ proposed facts, the Court must not weigh the
evidence or determine witness credibility; the Seventh Circuit instructs that
“we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d
688, 691 (7th Cir. 2010).
3.
FACTUAL BACKGROUND
The parties agree that there are no genuine issues of material fact and
that this case can be resolved on summary judgment. See (Docket #32, #37,
Having received and reviewed six briefs on the merits of the claims in this
case, inclusive of responses and replies, the Court finds that oral argument is not
necessary to resolve the legal issues before it. SJA’s motion for oral argument,
(Docket #39), will therefore be denied.
1
MPS also filed a motion to dismiss alleging improper service, (Docket #7),
but has since withdrawn the motion, see (Docket #11 at 2 and #13). That motion
will be denied as moot.
2
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and #39 at 1).3 Before turning to the parties’ dispute, though, the Court must
begin with a primer on the state law and municipal policy that underlie it.
3.1
Wisconsin Student Transportation Law
Prior to 1967, Wisconsin did not permit public school districts to
provide transportation for children attending parochial or private schools.
Cartwright v. Sharpe, 162 N.W.2d 5, 8 (Wis. 1968). In 1967, by virtue of the
mandate of a state-wide referendum, the Wisconsin constitution was
amended to provide that “[n]othing in this constitution shall prohibit the
legislature from providing for the safety and welfare of children by
providing for the transportation of children to and from any parochial or
private school or institution of learning.” Wis. Const. art. I, § 23.
Pursuant to authority provided by that constitutional amendment,
the Wisconsin legislature amended the state’s student transportation law to
provide “transportation for students attending private or parochial schools
and public schools upon a reasonably uniform basis.” Cartwright, 162
N.W.2d at 8. Under that law, school boards must provide free
transportation to elementary and high school students who reside two or
more miles from their school, public or private. Wis. Stat. § 121.54(2); see
also St. John Vianney Sch. v. Bd. of Educ. of Sch. Dist. of Janesville, 336 N.W.2d
387, 390 (Wis. Ct. App. 1983).
The major exceptions to this law apply to cities. For example, a
school board need not provide transportation to students in certain large
cities, as defined by the statute, if transportation is otherwise available
SJA’s response to MPS’ proposed findings of fact was untimely filed.
(Docket #37). SJA moved the Court to excuse its tardiness, (Docket #36), to which
MPS does not object, (Docket #40 at 1). However, MPS asked the Court to allow it
to file a reply in support of its proposed findings of fact. (Docket #40 at 1 and #41).
Both parties’ requests will be granted.
3
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through a common carrier of passengers. Wis. Stat. § 121.54(1). In that case,
the city school board may nonetheless elect to provide transportation under
the so-called “city option.” Id. Under the city option, “there shall be
reasonable uniformity in the transportation furnished such pupils whether
they attend public or private schools.” Id.
3.2
MPS Student Transportation Policy
MPS has exercised the city option, meaning it can determine its own
transportation policies, but must provide transportation with reasonable
uniformity to students of public and private schools. MPS, through its
Board of Directors, has created a policy for student transportation services,
set forth in MPS Administrative Policy 4.04 (“Policy 4.04”).4 Policy 4.04, in
relevant part, directs that transportation will be provided to Milwaukeeresident students as follows:
(2)
CONDITIONS OF DISTANCE
(a) To and from Public Schools within the City
…
3.
If the student is enrolled in grade 9 through
grade 12, and the residence is two miles or more
from the district school and more than one mile
walking distance from public transportation.
(b) To and from Private Schools Located within the City or
Located Not More Than Five Miles beyond the
Boundaries of the City, As Measured along the Usually
Traveled Route
…
2.
If the student is enrolled in grade 9 through
grade 12, and the residence is two miles or more
Administrative Policies of the Milwaukee Public Schools, Administrative
Policy 4.04, Student Transportation Services (November 12, 2014), available at
http://mps.milwaukee.k12.wi.us/MPS-English/OBG/Clerk-Services/MPS-Rulesand-Policies/AdministrativePolicies/Chapter04/Administrative_Policy_04_04.
pdf.
4
Page 4 of 24
from the private school and more than one mile
walking distance from public transportation;
3.
If the student resides within the designated
attendance area of the private school.
(Attendance area is the geographic area
designated by the governing body of a private
school and approved by the Board as the area
from which its students attend. The attendance
areas of private schools affiliated with the same
religious denomination may not overlap.);
4.
If the private school submits the names, grade
levels, and locations of eligible students no later
than the third Friday of September; and
5.
According to the transportation schedule
prepared by the Milwaukee Public Schools.
MPS Administrative Policy 4.04(2).
As to the deadline for private schools to submit a roster of students
who will require busing for the coming school year, the parties agree that,
in practice, the deadline is actually July 1. (Docket #32 at 4-5 and #37 at 9).
Only those students on the roster submitted by the private school receive
busing if otherwise eligible. MPS does not apply a roster deadline for
students attending MPS schools.
In a subsequent section, the policy prescribes rules for transportation
of students who attend MPS schools other than the schools to which they
would otherwise be assigned based on their residences (their attendancedistrict, or “neighborhood,” schools) in order to take advantage of
programs offered at select MPS schools or to avoid problems such as
overcrowding and racial imbalance at their neighborhood schools. Id. at
4.04(5). This section provides, in relevant part:
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(5) RACIAL
BALANCE,
MODERNIZATION,
OVERLOAD, AND LACK OF FACILITY
(a) City-Wide Schools
…
2.
Secondary. Transportation service shall be
provided to the public secondary school
students whose residences are two miles or
more walking distance from assigned city-wide
schools.
(b) Attendance-Area Schools
…
2.
Secondary. Transportation service shall be
provided to those public secondary school
students who are assigned to schools other than
their attendance-area schools and whose
residences are two miles or more walking
distance from the assigned schools.
MPS Administrative Policy 4.04(5).
MPS city-wide schools accept students from, as the name suggests,
the entire city of Milwaukee. This is in contrast to MPS neighborhood
schools, of which there is one for each attendance area within the city. MPS
city-wide schools have special programs or areas of study such as the arts,
International Baccalaureate, Montessori, language immersion, or gifted and
talented programs. MPS does not offer these special programs in all of its
high schools.
3.3
SJA’s Application to MPS for Busing
SJA is an independent, private, female-only high school in
Milwaukee. It provides its students, a majority of whom are racial
minorities, an intellectually challenging college-preparatory International
Baccalaureate program of study. SJA’s approved attendance area, for the
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purposes of student transportation under Policy 4.04, is city-wide. For the
2016-17 school year, its enrollment was 145 students.
SJA believes that because its attendance area is city-wide, its students
should fall under Section 4.04(5)(a), which, by its terms, applies only to citywide public school students. That section provides a more generous busing
scheme than section 4.04(2)(b), which applies to private school students.
Section 4.04(5)(a) provides busing for students who live more than two
miles from school, while section 4.04(2)(b) provides busing for students if
they live more than two miles from school and more than one mile from
public
transportation.
Additionally,
section
4.04(2)(b)
includes
a
requirement that the private school submit a roster of eligible students to
MPS before the start of the school year, whereas section 4.04(5)(a)—and all
other sections applying to public schools—does not.
On May 14, 2016, prior to the 2016-17 school year, SJA applied to
MPS for transportation for SJA students it believed qualified for that benefit
under MPS’ transportation policy. SJA’s initial roster included 62 of the 68
students involved in this case.5 SJA submitted an updated roster on
September 29, 2016 that included all 68 students. Those students have
residences that are within Milwaukee and more than two miles walking
distance from SJA, but not more than one mile walking distance from public
transportation.
MPS denied SJA’s request. Of the 68 students, 61 were denied
transportation under section 4.04(2)(b) because they lived within one mile
SJA’s complaint references 70 students, but SJA states that it learned
during discovery that two of those students were properly denied busing based
on the locations of their residences. (Docket #17 at 3). SJA no longer disputes MPS’
decision with respect to those two students. Id.
5
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of a public bus stop. Six students were denied transportation under the
same section because they were not on SJA’s roster by July 1. One student
was denied transportation under that section because MPS contended the
student lived within two miles of SJA. SJA states that the student lives 2.1
miles from SJA, but the parties agree that even if SJA is correct, the student
would have been denied transportation because the student lives within
one mile of a public bus stop. SJA arranged and paid for transportation for
the 2016-17 school year for those 68 students, and the students’ parents
assigned their transportation rights and benefits to SJA to facilitate this
lawsuit.
On March 21, 2017, SJA filed this action against MPS on its own
behalf and on behalf of the 68 students. SJA claims it has been harmed
because MPS’ transportation policy burdens its recruitment efforts and
because it was forced to provide transportation to its students, who should
have qualified for MPS busing, at a cost of $108,200.00 for the 2016-17 school
year. SJA alleges that the 68 students and their families have been harmed
because SJA was forced to use a portion of the money they pay in tuition to
provide transportation rather than other educational programming.
4.
ANALYSIS
SJA brings two claims in this case. The first is a civil rights claim
under 42 U.S.C. § 1983 for MPS’ violation of SJA’s and its students’
Fourteenth Amendment rights to equal protection of law. The second is a
state law claim under Wis. Stat. § 121.54 for MPS’ violation of its statutory
obligation to treat SJA students with “reasonable uniformity” as compared
to public school students in Milwaukee with respect to transportation to
school. Both of these claims share two bases: the disparate busing scheme
and the private-school-only roster requirement.
Page 8 of 24
4.1
Equal Protection Claim
The Equal Protection Clause of the Fourteenth Amendment
commands that “no State shall . . . deny to any person within its jurisdiction
the equal protection of the laws.” U.S. Const. amend XVI, § 1. This is
“essentially a direction that all persons similarly situated should be treated
alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)
(quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)).
The Equal Protection Clause does not itself provide a private cause
of action. Rather, Section 1983 “provides a cause of action for all citizens
injured by an abridgment” of the Equal Protection Clause. Collins v. City of
Harker Heights, Tex., 503 U.S. 115, 119–20 (1992). Section 1983 establishes a
cause of action against any “person” who, acting under color of state law,
“subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws” of the
United States. The parties do not dispute that MPS is a state actor for the
purposes of SJA’s Section 1983 claim. The dispute is over the alleged
constitutional deprivation.
On that question, the parties disagree at every turn. First, they
disagree as to which type of equal protection claim SJA has alleged—a classof-one claim or a claim based on a legislative classification. Second, they
disagree on the appropriate level of scrutiny under which the Court is to
review SJA’s claim. Third, they disagree as to whether MPS has a rational
basis for providing more generous busing to some public school students
than it provides to private school students, and for requiring a roster from
private schools but not from public schools. Each issue is addressed below.
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4.1.1
MPS’ Legislative Classification
The first issue the Court must resolve is whether SJA’s equal
protection claim is, as SJA says, based on a legislative classification or if it
is instead, as MPS says, a “class of one” claim. MPS contends that because
SJA’s claim is of the class of one variety and because SJA has not identified
a similarly situated class of persons that is treated more favorably under
Policy 4.04, SJA’s claim fails at the outset. If that were true, the Court need
not continue its equal protection analysis.
In an equal protection case where the plaintiff “challenges a statute
or ordinance that by its terms imposes regulatory burdens on a specific class
of persons . . ., there is no need to identify a comparator; the classification
appears in the text of the policy itself.” Monarch Beverage Co. v. Cook, 861
F.3d 678, 682 (7th Cir. 2017). Plaintiffs challenging a legislative classification
allege that they have been “arbitrarily classified as members of an
‘identifiable group.’” Engquist v. Or. Dep't of Agr., 553 U.S. 591, 601 (2008)
(citation omitted).
In a class of one equal protection case, “the plaintiff doesn’t
challenge a statute or ordinance but argues instead that a public official (or
group of officials) has treated him differently than other persons similarly
situated for an illegitimate or irrational reason.” Monarch Beverage Co., 861
F.3d at 682. If a class-of-one plaintiff “can’t identify a similarly situated
person or group for comparison purposes, it’s normally unnecessary to take
the analysis any further; the claim simply fails.” Id. (citation omitted). That
is so because the equal protection guarantee is “concerned with
governmental classifications that ‘affect some groups of citizens differently
than others.’” Id. (quoting Engquist, 553 U.S. at 601). In a class-of-one equal
protection case, the classification drawn by the challenged governmental
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action might not be obvious, and therefore “[i]dentifying a similarly
situated comparator is a way to show that disparate treatment in fact has
occurred and sets ‘a clear standard against which departures, even for a
single plaintiff, [can] be readily assessed.’” Id. (quoting Engquist, 553 U.S. at
602).
The Court agrees with SJA that it presents a legislative classification
equal protection claim. Policy 4.04 draws a distinction between public
school students attending their neighborhood schools, private school
students attending any school, and public school students attending citywide schools.6 SJA students are members of the class of private school
students that is treated differently than public city-wide school students
with respect to busing and all public school students with respect to the
roster deadline rule.
MPS’ comparison to Racine Charter One, Inc. v. Racine Unified School
District, 424 F.3d 677 (7th Cir. 2005), is unavailing. In that case, Racine
Charter One (“Charter One”), an independent public charter school,
brought an equal protection claim against the Racine Unified School District
(“RUSD”), a school district in southeastern Wisconsin, based on the school
district’s refusal to provide busing for Charter One students. Id. at 680.
RUSD’s written transportation policy provided transportation for all
public, private, and parochial school students so long as they met certain
criteria. Id. at 679. The policy did not distinguish between charter schools
and other schools; it did not even mention charter schools. Further, the
Policy 4.04 classifies students in many other ways that are not relevant
here; for example, students who attend neighborhood schools other than their
assigned neighborhood schools are classified for the purpose of applying a specific
transportation rule to them, see Policy 4.04(5)(b).
6
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Wisconsin law mandating busing by school districts of all private and
public school students—the same state law at issue in this case—is silent as
to charter schools. Id. (citing Wis. Stat. § 121.54).
Charter One could not pursue a claim that it was burdened by a
legislative classification because the school district’s policy contained no
such classification. Instead, the district court found, and the Seventh Circuit
agreed, that Charter One’s claim was properly construed as a class of one
claim: that local government officials within the RUSD denied the school
and its students the benefit of busing otherwise provided to all others
similarly situated without a rational basis for the distinction. Id. at 680.
Charter One had the threshold burden, then, of showing that its students
were in fact similarly situated to those students within the RUSD who did
receive busing. Id.
In contrast, SJA belongs to an identifiable group that is specifically
classified in Policy 4.04(2) as “private schools located within the city or
located not more than five miles beyond the boundaries of the city, as
measured along the usually traveled route.” Further, whereas Section
121.54 is silent as to school districts’ obligations to charter schools, the law
obliges school districts to provide transportation to students attending
private schools like SJA.
MPS takes pains to note that the policy does not specifically classify
“private city-wide schools,” and, therefore, SJA must be a class of one for
purposes of comparing itself to pubic city-wide schools. But the fact that
the policy does not mention private city-wide schools is exactly SJA’s point.
Among all private and public school students MPS is legally required to
transport, the policy creates a favored class of public school students who
Page 12 of 24
are afforded a more generous transportation option as compared to private
school students (and public neighborhood school students, for that matter).
As to the roster submission requirement, the classifications within
the policy are even clearer. All private schools, and no public schools, are
required to comply with this requirement. SJA’s challenge to this part of the
policy attacks the overt distinction drawn between classes of private and
public school students.
4.1.2
Appropriate Level of Scrutiny
The Court must next determine under which level of scrutiny to
review the challenged policy. SJA gestured, in a footnote in its opening brief
supporting its motion for summary judgment, at the application of strict
scrutiny, and then argued more forcefully in favor of that standard in its
response to MPS’ motion. MPS argues that rational basis review is
appropriate.
Strict scrutiny of a legislative classification is appropriate “when the
classification impermissibly interferes with the exercise of a fundamental
right or operates to the peculiar disadvantage of a suspect class.” Segovia v.
United States, 880 F.3d 384, 390 (7th Cir. 2018) (quoting Mass. Bd. of
Retirement v. Murgia, 427 U.S. 307, 312 (1976) (per curiam)). Under strict
scrutiny, the challenged law is upheld only if it is “narrowly tailored” to
achieve a “compelling” government interest. Grutter v. Bollinger, 539 U.S.
306, 326 (2003).
In contrast, a legislative classification that does not proceed along
suspect lines or burden a fundamental right need only satisfy the lessstringent “rational-basis review[.]” Segovia, 880 F.3d at 390 (citing Armour v.
City of Indianapolis, Ind., 566 U.S. 673, 680 (2012)). This requires that the
classification merely bear a “rational relationship” to some “legitimate
Page 13 of 24
government purpose.” Id. Under rational basis review, a legislative
classification must be upheld against an equal protection challenge “if there
is any reasonably conceivable state of facts that could provide a rational
basis for the classification.” Armour, 566 U.S. at 681 (quotation omitted).
“Further, because the classification is presumed constitutional, the burden
is on the one attacking the legislative arrangement to negative every
conceivable basis which might support it.” Id. (quotation omitted). The
Supreme Court has described rational basis review as “a paradigm of
judicial restraint.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993).
SJA demands strict scrutiny because it believes a fundamental right
is being burdened here. The Supreme Court has held that, at least for
purposes of an equal protection claim, education is not a fundamental right.
Plyler v. Doe, 457 U.S. 202, 223 (1982). So, SJA frames the relevant
fundamental right in a slightly different way. SJA argues that Policy 4.04
burdens the fundamental right of parents to choose private education for
their children. In support of this argument, SJA cites to a nearly century-old
case in which the Supreme Court held that an Oregon statute compelling
public school attendance for children from age eight to age sixteen violated
parents’ Fourteenth Amendment substantive due process rights. Pierce v.
Soc’y of Sisters, 268 U.S. 510 (1925). The Court found that “[t]he inevitable
practical result of enforcing the Act under consideration would be
destruction of appellees’ primary schools, and perhaps all other private
primary schools for normal children within the State of Oregon.” Id. at 534.
The Court thus concluded that the statute “unreasonably interfere[d] with
the liberty of parents and guardians to direct the upbringing and education
of children under their control.” Id. at 534–35.
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The Seventh Circuit faced a similar issue in Griffin High School v.
Illinois High School Association, 822 F.2d 671, 675 (7th Cir. 1987), and declined
to apply strict scrutiny. There, a private religious high school challenged,
on equal protection grounds, a high school association by-law that imposed
a one-year bar on interscholastic athletic participation for all students who
transferred schools, except for those students who transferred from a
private to a public school. Id. at 673-74. The school argued that the transfer
rule would weaken private school athletic teams, causing parents to send
their children to public schools instead, which would lead to the destruction
of private schools in the state, thereby impairing parents’ ability to send
their children to private schools. Id. at 675. The Seventh Circuit made short
work of this argument, concluding that “[t]his chain of causation is too
attenuated and speculative to support the conclusion that the new transfer
policy unreasonably interferes with the freedom of parents to direct their
children’s upbringing.” Id. The court went on to apply rational basis review
to the school’s claim. Id.
The same is true here. Any causal connection between the
destruction of private schools and MPS’ allegedly discriminatory policy is
attenuated and speculative. The Pierce Court’s concern for the inevitable
destruction of private schools resulting from enforcement of the challenged
policy is not present in this case. Further, although it is true that parents
have a fundamental right “to make decisions concerning the care, custody,
and control of their children,” Troxel v. Granville, 530 U.S. 57, 66 (2000), SJA
has pointed to no case law indicating that a school district’s refusal to
provide subsidized busing to certain private school students, or its
requirement that private school students sign up for busing by a certain
date, unreasonably interferes with the freedom of parents to direct their
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children’s upbringing. Cf. Rust v. Sullivan, 500 U.S. 173, 201 (1991)
(government has no duty to subsidize fundamental rights). In the absence
of such precedent, the Court finds that the appropriate level of
constitutional review for Policy 4.04 is the rational basis test, not strict
scrutiny.
4.1.3
Rational Basis Review
The Court’s final task in resolving SJA’s equal protection claim is to
determine whether the classifications in Policy 4.04 survive rational basis
review. As noted above, rational basis review of a challenged law will result
in invalidation only if there is no rational relationship between the law’s
disparity of treatment and some legitimate government purpose. Armour,
566 U.S. at 680; Segovia, 880 F.3d at 390.
4.1.3.1 One Mile From a Bus Stop
Under Policy 4.04, private school students are disqualified from
busing if they live within one mile of a bus stop, but public school students
who attend MPS city-wide schools and public school students who attend
an MPS neighborhood school other than their assigned neighborhood
school are not.
According to MPS, the legitimate purpose behind this portion of the
policy is “providing equal access to the highest quality education.” (Docket
#23 at 14-19). Its decision to allow students from all over the city to attend
specialized schools and to allow some students to attend neighborhood
schools other than their own, MPS argues, is rationally related to that
purpose in light of the overcrowding and racial imbalance at some MPS
neighborhood schools and MPS’ inability to offer special programming at
all of its schools. Id.
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This reasoning certainly supports MPS’ attendance policy for its own
schools, but it is a red herring here. That MPS was rationally motivated in
allowing students to access special programming and move from
overcrowded or racially imbalanced neighborhood schools is both true and
irrelevant. The relevant question is whether MPS’ decision to provide
preferential busing to those students is rationally related to some legitimate
purpose. As to that question, MPS makes two points.
First, MPS states that “when a pupil has to go to a school other than
his or her designated attendance area school, it is not fair to require that
pupil to either walk the extended distance or navigate public transportation
for that distance, which may mean many transfers and far more stops along
the way than a pupil transportation service.” (Docket #23 at 19). From this
the Court discerns one legitimate purpose for MPS’ provision of expanded
busing to city-wide school students: convenient and safe student
transportation.
But this does not answer whether MPS’ disparity of treatment
between public city-wide school students and private school students is
rationally related to that purpose. As SJA points out, a private school
student attending a school with a city-wide attendance area faces the same
challenges in her commute as does a student attending a public city-wide
school. (Docket #34 at 3). And there is nothing in the record to suggest that
students attending MPS city-wide schools face longer or more dangerous
commutes than students who attend private city-wide schools. Thus, the
hazards of a long commute do not provide a rational basis for MPS to give
expanded busing to certain of its own students but not to students who
attend a city-wide private school.
Page 17 of 24
Second, MPS states that it would be prohibitively expensive to
extend the expanded busing option to students who attend private citywide schools. MPS’ student transportation costs already exceed the amount
it receives in state aid for transportation, and avoiding the additional cost
(even if small in relation to MPS’ overall transportation budget) serves the
purpose of preserving the district’s resources.
Racine Charter One controls here. As discussed earlier, that case also
involved a school district’s decision not to provide busing to students who
may attend a local school. The court found that the “unique and additional
costs that [the school district] would incur were it to provide [busing] to
Charter One” was a rational basis for its refusal to bus the charter school
students. Racine Charter One, 424 F.3d at 685–86. Explaining this finding, the
court noted that to accommodate Charter One students,
[the school district] would almost certainly be forced to alter
its current busing routes. Some buses service more than one
school, requiring the accommodation of not only the various,
specific addresses of each passenger (both current riders and
each added Charter One student), but also the coordination of
potentially different start and end times at each school
serviced. Such alterations would come with appreciable costs,
be they the creation of new routes, the addition of more buses,
or the elongation of bus routes requiring earlier pick-ups and
later drop-offs. And while the record does not allow us to
quantify these additional costs to [the school district] with any
degree of certainty, we are confident that they are substantial
enough to provide a rational basis for [the school district’s]
refusal to extend the busing benefit to Charter One students.
Id. at 686. The court went on to compare the size of Charter One with the
size of the Racine school district, noting the latter is much larger and has
many more challenges to manage. Id. at 686-87. Finally, the court noted that
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Charter One could appeal to its benefactors for transportation funding
whereas the school district was at the mercy of the taxpayers. Id. at 687.
All of these cost-related concerns may also be reasonably said to
apply in this case. Eliminating the bus stop rule for private city-wide
schools would almost certainly require MPS to alter is current busing
routes, as it would be transporting more and different students than it
currently buses and for longer distances. MPS would also likely have to
coordinate different start and end times for the schools serviced. True, it
already does this for any private school students it already buses, but with
more private school students qualifying for busing, some bus routes that
previously only serviced public schools might have to service private
schools with potentially different schedules.
These are hypothetical costs not presented with any detail by MPS,
much less based on data, but the Court is bound to discern any and all
rational bases for a law’s disparate treatment when conducting rational
basis review. See Armour, 566 U.S. at 681. And while these costs might not
be colossal, indeed possibly less than the $108,200 SJA spent for the 2016-17
school year, this Court cannot say that they are appreciably less or different
than the costs the Racine Charter One court found sufficient to justify denial
of busing.7
That being said, the Racine Charter One court’s analysis of cost appears at
odds with the reasoning in some Supreme Court and Seventh Circuit case law
regarding cost as a rational basis. See, e.g., Bankers Life & Cas. Co. v. Crenshaw, 486
U.S. 71 (1988); Irizarry v. Bd. of Educ. of City of Chicago, 251 F.3d 604 (7th Cir. 2001).
In those cases, the courts emphasized that only costs that are unique to a certain
class can rationally justify singling out that class for disparate treatment.
7
In Bankers Life, the Supreme Court considered an equal protection claim
lodged against Mississippi’s appellate penalty statute, which aimed to discourage
frivolous appeals by requiring unsuccessful appellants from money judgments
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(but not appellants from other kinds of judgments) to pay an additional
assessment of 15% of the judgment. Id. at 80. The Court found this differential
treatment permissible because calculating the penalty for money judgment
appellants would be simple, but doing the same for non-money judgments would
require “erect[ing] a fixed bond that bore no relation to the value of the underlying
suit” or “set[ting] appropriate penalties in each case using some kind of
individualized procedure,” all of which would “impose a considerable cost in
judicial resources, exactly what the statute aims to avoid.” Id. at 83–84.
The Seventh Circuit followed similar logic in Irizarry. In that case, the
plaintiff challenged a city board of education policy that extended spousal health
benefits to domestic partners of its employees, but only if the partner was of the
same sex as the employee. Id. at 606. The court found that cost was a rational basis
for providing the benefit to homosexual couples but not unmarried heterosexual
couples. Id. at 610. It was easier for the board to determine whether a claimant was
married to an employee than to determine whether the claimant satisfied the
multiple criteria for domestic partnership, and processing benefits for married
couples required less administrative cost. Therefore, the benefit plan was
rationally tailored to reward heterosexual couples who chose to marry. Id. at 610.
In Racine Charter One, there is no indication that Charter One students were
somehow more costly to transport than other students the district bused. Judge
Cudahy pointed this out in a concurring opinion, explaining that “[i]t is not
rational to treat equally expensive or equally at-risk students differently based
solely on their school affiliation. Indeed if [the school district’s] cost-based
arguments here can succeed, any government official could deny service to any
individual, regardless of the dictates of government policy, based solely on the
proposition that serving one additional person would cost more than not serving
him or her.” Racine Charter One, 424 F.3d at 688–89 (Cudahy, J., concurring).
The same might be said of the SJA students in this case; there would be an
additional cost to bus them, certainly, but not necessarily a unique cost, apart from
whatever administrative cost MPS would incur to determine which private
schools have city-wide attendance areas. Because Racine Charter One is controlling
precedent, which applies the Supreme Court’s rational basis jurisprudence to facts
very similar to those here, this Court will not depart from its majority holding. See
Colby v. J.C. Penney Co., 811 F.2d 1119, 1123 (7th Cir. 1987) (to depart from appellate
precedent, the district court must be “powerfully convinced” that the higher court
would overrule its previous decision “at the first available opportunity”). Here, as
in Racine Charter One, the cost of busing an additional class of students is a rational
justification for the school district’s policy not to bus them.
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4.1.3.2 Roster Submission Deadline
MPS also has a rational basis for requiring private schools to submit
a roster of students who desire busing for the coming school year but not
requiring the same from public schools.
MPS reports that the required roster provides MPS with relevant
information concerning which private school students are eligible for
transportation and allows MPS to make provisions for such transportation.
Once MPS receives the roster, MPS staff members compare the information
therein to its own information to ensure no student appears on both a
private school and public school enrollment log. MPS staff members then
use the addresses listed in the roster to determine which private school
students are eligible for busing based on their distance from school and
from the nearest bus stop. MPS does not need a roster for its own students
because MPS has immediate access to the names and addresses of its own
students.
SJA agrees that MPS needs a student roster from private schools so
MPS knows who to bus and from where. However, MPS needs a roster of
sorts for its own students at some point too, SJA counters, and MPS’
imposition of a cutoff deadline for private school rosters and not for public
school rosters is arbitrary and irrational. According to SJA, if MPS can
provide busing for latecomers to MPS, it should provide busing to
latecomers to private schools as well.
MPS’ decision to impose a roster submission deadline for private
schools and not public schools finds rational support in administrative
concerns. The rosters are necessary because, without them, MPS would
have no information about private school students who need busing.
Indeed, MPS knows nothing about what happens at private schools like SJA
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unless those schools decide to share information. Given that MPS must
process the roster information once received, it is rational for MPS to
impose a roster submission deadline that allows time for processing before
the school year begins. As for latecomers, the administrative tasks
associated with providing busing for students enrolling late in MPS schools
is presumably less than for students enrolling late at private schools,
because MPS knows about its latecomers the moment they enroll.
A legislative policy need not be perfectly efficient to pass muster
under the rational basis test. It “may be based on rational speculation
unsupported by evidence or empirical data.” Beach Commc'ns, Inc., 508 U.S.
at 315. MPS’ roster deadline rule comes before this Court with a
presumption of validity, id. at 314, and SJA has not shown that there is no
“reasonably conceivable state of facts that could provide a rational basis”
for it. Id. at 313. MPS’ representations about the logistics associated with
arranging busing for private school students provide a rational basis for
selectively imposing a roster deadline.
4.2
State Law Claim
In addition to its equal protection claim, SJA also brings a state law
claim against MPS under Section 121.54. As noted above, that law obligates
MPS to provide transportation to students, whether they attend public or
private schools, with “reasonable uniformity.” Wis. Stat. § 121.54(1)(b).
It is clear that this law is the engine driving this litigation. Indeed,
SJA asserts throughout its equal protection briefing that because MPS has a
statutory obligation to transport public and private school students with
reasonable uniformity, MPS acted irrationally in expanding busing for
public city-wide school students and not private city-wide school students.
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But whether MPS buses students in non-uniform way and whether that
non-uniformity is rational are two different questions.
The latter question has been answered above. The former has not,
but it is a question best suited for the state courts of Wisconsin. The federal
supplemental jurisdiction statute permits a district court to decline to
exercise supplemental jurisdiction over a state law claim in certain
instances, including when “the district court has dismissed all claims over
which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3); see also Hansen v.
Bd. of Trustees of Hamilton Se. Sch. Corp., 551 F.3d 599, 607 (7th Cir. 2008)
(“When all federal claims have been dismissed prior to trial, the principle
of comity encourages federal courts to relinquish supplemental jurisdiction
pursuant to § 1367(c)(3).”). Having disposed of SJA’s only claim arising
under federal law, the wiser exercise of discretion in such matters is to
decline to exercise supplemental jurisdiction over the remaining state law
claim.
5.
CONCLUSION
For the reasons stated above, the record and the relevant authorities
oblige the Court to deny SJA’s motion for summary judgment, grant
summary judgment in favor of MPS, and dismiss this case in its entirety.
Accordingly,
IT IS ORDERED that Defendant’s motion to dismiss (Docket #7) be
and the same is hereby DENIED as moot;
IT IS FURTHER ORDERED that Plaintiff’s motion for leave to file
an untimely response to Defendant’s proposed findings of fact (Docket #36)
be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion for oral
argument (Docket #39) be and the same is hereby DENIED;
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IT IS FURTHER ORDERED that Plaintiff’s motion for summary
judgment (Docket #16) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Defendant’s motion for summary
judgment (Docket #22) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s constitutional claim
(Docket #1 at 3) be and the same is hereby DISMISSED with prejudice;
IT IS FURTHER ORDERED that Plaintiff’s state law claim (Docket
#1 at 7) be and the same is hereby DISMISSED without prejudice; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 28th day of February, 2018.
BY THE COURT:
____________________________
J. P. Stadtmueller
U.S. District Judge
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