After split reasoning on certified question, private-school busing lawsuit to return to 7th Circuit

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A lawsuit over busing requirements for private, religious schools in Wisconsin will return to the Seventh Circuit Court of Appeals.

On Friday, the Wisconsin Supreme Court answered a certified question in St. Augustine School v. Carolyn Stanford Taylor, a case that’s gone up to the U.S. Supreme Court and back in the past five years.

In the latest chapter of the case, the Seventh Circuit asked the state Supreme Court how to determine whether two or more schools are private schools affiliated with the same religious denomination for purposes of Wis. Stat. 121.51. The statute says the attendance areas of private schools affiliated to the same religious denomination shall not overlap.

The state Supreme Court’s 81-page document analyzing the question included the majority opinion authored by Justice Ann Walsh Bradley, concurrences from Justices Brian Hagedorn and Pat Roggensack, and one dissenting opinion written by Justice Rebecca Bradley.

Majority: Superintendent may consider school’s self-identification, not only corporate documents

The majority — Justices Ann Walsh Bradley, Rebecca Dallet, Brian Hagedorn and Jill Karofsky — concluded that the state superintendent is not limited to consideration of a school’s corporate documents exclusively when determining whether schools are affiliated with the same religious denomination. The majority opinion said the superintendent may also consider 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.

“(A) superintendent attempting to determine that a school is affiliated with a specific religious denomination may rely on any evidence of affiliation between the school and a denomination that does not violate the First Amendment and that does not inquire into the religious beliefs of the school or the denomination,” Bradley wrote.

The opinion said the certified question’s wording implied that corporate documents are neutral criteria, while a school’s self-identification on its website and other state filings are not. However, Bradley said simply accepting a school’s profession of affiliation or its filings with the state constitutes a neutral undertaking.

The case was remanded to the Seventh Circuit for further proceedings.

Hagedorn: ‘Affiliated with’ means mutual organizational relationship

Hagedorn agreed with the majority’s conclusion, but he wrote a separate concurrence to examine what a religious denomination is under state statute and what it means for a school and a religious denomination to be affiliated with one another.

His opinion said statutory context reveals that a religious denomination is a kind of religious organization. In that context, Hagedorn said a mutual organizational relationship must be in place in order for a private school to be affiliated with a religious denomination.

“Both the private school and the religious denomination must agree to be affiliated with each other,” Hagedorn wrote. “This statutory inquiry is organizational, not theological.”

Roggensack: Concur, but majority ‘overlooked’ dispositive issue

In her concurring opinion, Justice Pat Roggensack agreed with Hagedorn’s definition of “affiliated with” requiring a mutual organizational relationship. She said the court’s previous interpretations of “affiliate” and “affiliated with” require express or implied mutual agreement to connection between the parties.

“Accordingly, the Seventh Circuit Court of Appeals should consider those facts presented to it that bear on whether St. Augustine and the Archdiocese of
Milwaukee have mutually agreed that their organizations are affiliated with each other,” Roggensack wrote.

Roggensack said she did not join the majority’s opinion because it overlooked the dispositive issue of mutuality and instead focused on a “variety of factual inquiries that will not assist the Seventh Circuit Court of Appeals move forward in its decisional process.”

Bradley, Ziegler: Majority ‘repeats error’ from previous case

Justice Rebecca Bradley also took issue with the majority’s decision. In her dissent, she said the majority’s answer to the certified question “unconstitutionally entangles state authorities in the religious affairs of private schools.”

The majority should have overruled State ex rel. Vanko v. Kahl, according to Bradley. The 1971 decision construed 121.51 to apply to any two private schools affiliated or operated by a single sponsoring group, such as the same religious denomination. Bradley said it wasn’t important that the parties in St. Augustine didn’t ask the court to overrule Vanko. Rather, the court should have taken an opportunity to correct an “egregious example of legislating from the bench.”

“Repeating its error from 50 years ago, this court once again neglects its duty to strike an unconstitutional statute,” Bradley wrote.

Chief Justice Annette Ziegler joined in Bradley’s dissent. Follow @WLJReporter