Federal court sides with Evers in private school busing dispute
MADISON - Federal judges are backing state schools Superintendent Tony Evers’ decision to not require a Washington County public school district to provide busing to students attending a private religious school.
Parents of students at St. Augustine School and a conservative legal firm sued Evers and the Friess Lake School District in 2016 after the district and Evers said the students did not qualify to ride district buses to school for free.
Under state law, public school districts are required to bus private school students, but only to one school per religious denomination in an attendance area.
Because students were already being bused to another Catholic school, the St. Augustine students were denied free transportation by Evers’ Department of Public Instruction and the district.
Friess Lake and Evers argued that St. Augustine’s attendance area overlaps that of St. Gabriel School, which is operated by the Catholic Archdiocese of Milwaukee, and therefore isn’t eligible.
But the parents argued their students were eligible for free transportation because St. Augustine operates independently of the archdiocese and therefore is not part of the same denomination. The Hartford school describes itself on its website as an “independent and private traditional Roman Catholic School.”
Represented by the conservative Wisconsin Institute for Law & Liberty, the parents appealed a lower court’s ruling siding with Evers and the district. On a 2-1 vote, a panel of the U.S. 7th Circuit Court of Appeals upheld that ruling Thursday.
The federal panel said neither Evers nor the school district was withholding the transportation illegally, nor did evidence presented by the plaintiffs show Evers and the district were illegally labeling the school as Catholic because the school labeled itself as a Catholic school.
“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,” Chief Judge Diane Wood wrote.
She was joined in the ruling by Judge Michael Kanne. Judge Kenneth Ripple dissented.
Rick Esenberg, president and general counsel of WILL, said attorneys representing St. Augustine parents will seek to have the entire panel of judges on the federal appeals court review Thursday’s decision and intend to take the case to the U.S. Supreme Court if need be.
“The majority of the panel permits something which is fundamentally at odds with religious freedom,” Esenberg said. “The decision lets government ignore citizens’ right to define their own religious views. It lets Superintendent Evers and DPI decide who is Catholic and who is not.”
Tom McCarthy, spokesman for the DPI, said the ruling “affirms the strength of our case and our application of the law in this instance.”
The judges said to require DPI to evaluate how the doctrine and belief of St. Augustine, and how it practices the Catholic religion differently than St. Gabriel, would be an unconstitutional analysis of religious belief.
“The entire point of the approach endorsed by the Wisconsin Supreme Court and followed by the defendants is to take matters of doctrine and belief out of the secular determination of institutional affiliation,” Wood wrote.
“We will not pervert the Establishment Clause to declare internal doctrinal differences a matter of state concern. Nor are we prepared to say, in conflict with the Wisconsin Supreme Court, that the state’s only choice is to assume that each and every school is unique and thus all children must receive transportation benefits.”