Fed­eral court sides with Evers in pri­vate school bus­ing dis­pute

Milwaukee Journal Sentinel - - Milwaukee Wisconsin - Molly Beck

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.”

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