Wisconsin Supreme Court to hear Catholic busing case
Must districts provide rides to multiple schools of one denomination?
Wisconsin’s Supreme Court has agreed to weigh in on whether a Washington County school district must transport children to an independent Catholic school when it already pays to bus students to one sponsored by the Milwaukee Archdiocese.
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.
A federal judge and federal court of appeals said the district was not obligated to provide the service twice, but the U.S. Supreme Court last year ordered a reconsideration. The decision was encouraging to the school choice movement.
To help it decide, the 7th U.S. Circuit Court of Appeals asked the Wisconsin Supreme Court to determine, under state law, what criteria can be considered when deciding whether multiple schools are associated with the same religious denomination.
It will hear oral arguments in May. The case was filed in 2016 by the Wisconsin Institute of Law & Liberty, a law firm that advocates and litigates conservative causes.
WILL represents St. Augustine School and Joseph and Amy Forros of Richfield, who at the time of the suit sent three children to St. Augustine School in Hartford. The Friess Lake School District (part of Holy Hill Area School District since 2018) already paid to transport students to St. Gabriel, a Catholic school run by the Archdiocese of Milwaukee, located in the former Friess Lake district.
Attendance areas for St. Augustine and St. Gabriel overlap.
WILL characterized the decision by the Friess Lake School District and the Department of Public Instruction not to pay the transportation costs as “determining the definition of Catholic and withholding government benefits until St. Augustine agrees not to call itself ‘Catholic.’ ”
The federal appeals court asked the Wisconsin Supreme Court to answer this question:
When deciding whether two or more private schools are affiliated with the same religious denomination, should the state superintendent rely only on “neutral” criteria such as ownership, control and articles of incorporation of a school, or may she also consider how the school identifies itself, like on its website?
The Supreme Court also asked the parties, in briefs about how the court should answer that question, to address how the First Amendment’s religion clauses bear on interpreting the state law about transportation aid, and whether the court should revisit its own rulings on busing for religious schools from the 1970s.
“We are pleased the Wisconsin Supreme Court will clarify whether a state agency has the ability to withhold a government benefit based on its definition of who is, and isn’t, a member of a religious faith,” said Anthony LoCoco, WILL deputy counsel.
A spokesman for the Department of Public Instruction declined comment on the pending case. Counsel for the school district did not return emails Friday.
Whatever the Supreme Court decides will be taken into account by the federal appeals court when it completes its reconsideration of the case.