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Certified Question – Transportation Aid

By: Derek Hawkins//September 9, 2021//

Certified Question – Transportation Aid

By: Derek Hawkins//September 9, 2021//

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WI Supreme Court

Case Name: St. Augustine School, et al., v. Carolyn Sandford Taylor

Case No.: 2021 WI 70

Focus: Certified Question – Transportation Aid

This case is before the court on a certified question from the United States Court of Appeals: for the Seventh Circuit. See Wis. Stat. § 821.01 (2019-20). Explaining that the question boils down to one of methodology, it certified the following question: For purposes of determining whether two or more schools are “private schools affiliated with the same religious denomination” for purposes of Wis. Stat. [§] 121.51, must the state superintendent rely exclusively on neutral criteria such as ownership, control, and articles of incorporation, or may the superintendent also take into account the school’s self-identification in sources such as its website or filings with the state.

This question arises in the context of St. Augustine School’s (St. Augustine) application for transportation benefits pursuant to Wis. Stat. §§ 121.51 and 121.54. Pursuant to these statutes, private schools are entitled to receive public funding to transport children to their schools, but only one affiliated school per “religious denomination” can receive the funding in each “attendance area.”

St. Augustine’s application was denied by the Superintendent of Public Instruction on the ground that another school of the same religious denomination within the same attendance area was already receiving the benefit. Specifically, the Superintendent determined that St. Gabriel, a Catholic school affiliated with the Archdiocese of Milwaukee, was already established in the same attendance area as St. Augustine, and St. Augustine also represented itself as a Roman Catholic school.

The certified question asks us only what information the Superintendent may consider in making a determination regarding whether two schools are “affiliated with the same religious denomination.” It does not ask us to resolve whether St. Gabriel and St. Augustine are actually of the same religious denomination. The application of the facts to the law remains with the federal courts upon remand.

We conclude that, in determining whether schools are “affiliated with the same religious denomination” pursuant to Wis. Stat. § 121.51, the Superintendent is not limited to consideration of a school’s corporate documents exclusively. In conducting a neutral and secular inquiry, the Superintendent may also consider the professions of the school with regard to 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.

Accordingly, we answer the certified question and remand to the United States Court of Appeals for the Seventh Circuit for further proceedings.

Certified question answered and cause remanded

Concur: ROGGENSACK, J., filed a concurring opinion. HAGEDORN, J., filed a concurring opinion.

Dissent: REBECCA GRASSL BRADLEY, J., filed a dissenting opinion, in which ZIEGLER, C.J., joined.

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Derek A Hawkins is Corporate Counsel, at Salesforce.

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