U.S. Court of Appeals reverses district court ruling on Catholic school busing case

A federal appeals court has ruled that Wisconsin's Department of Instruction was wrong in denying transportation to an independent Catholic school in Hartford because it already bused students from a Catholic school sponsored by the Milwaukee Archdiocese.

The U.S. Seventh Circuit Court of Appeals, in reversing a U.S. District Court's decision to throw the case out, sent the case back to the District Court to determine damages, court documents said.

At issue is a state law that provides for transportation to most of school-aged children. With private school students, however, the state limits transporting private school students to only one school "affiliated or operated by a single sponsoring group" within a given attendance area.

St. Augustine School is a Catholic school that moved to Colgate for the 2021-22 school year and is not affiliated with the archdiocese; St. Gabriel High School in the same area is run by the archdiocese. Both schools were in the Friess Lake School District until 2018, when Friess Lake became part of the Holy Hill Area School District. 

Court documents said the question before them was whether then state Superintendent of Public Instruction and current Wisconsin Governor Tony Evers was correct in deciding that St. Augustine School, which describes itself as an independent Catholic School unaffiliated with the Archdiocese of Milwaukee, is "affiliated with or operated by" the same sponsoring group as St. Gabriel High School, "which is run by the Archdiocese of Milwaukee and therefore indisputably Catholic."

In other words, Evers decided that both schools had a single sponsoring group — the Catholic Church — and therefore St. Augustine didn't merit state-paid transportation due to St. Gabriel already receiving the transportation benefit. In the ruling filed Monday, the appeals court disagreed, essentially saying one school was sponsored by the archdiocese and one was independently sponsored. 

“The Seventh Circuit’s decision makes clear that government has no business denying students transportation aid on the basis of its own religious judgments. This is a win for private school families across Wisconsin," said Wisconsin Institute for Law and Liberty (WILL) Deputy Counsel Anthony LoCoco in a news release from the organization. 

WILL represents St. Augustine School and parents Joseph and Amy Forro, whose three children attended St. Augustine School in Hartford at the time the lawsuit was filed in 2016, as they sought to qualify for transportation benefits. 

"Litigation in this matter remains ongoing, and our agency is currently reviewing the decision and considering available options," said DPI spokesperson Chris Bucher in an email.

According to WILL's view of the decision made by the school district and DPI, the two groups "determined the definition of Catholic and withheld government benefits until St. Augustine agreed not to call itself “Catholic.”

The federal appeals court said in its ruling that the superintendent's decision "was not justified by neutral and secular considerations, but instead necessarily and exclusively rested on a doctrinal determination that both St. Augustine and St. Gabriel’s were part of a single sponsoring group—the Roman Catholic church—because their religious beliefs, practices, or teachings were similar enough."

"The fact that the Superintendent reached this result largely just by looking at St. Augustine’s description of itself on its website does not matter—the doctrinal conclusion was an inescapable part of the decision. We therefore reverse the judgment of the district court and remand for further proceedings," the court said in its ruling.

An attorney for the school district has not responded to a request for an interview.

Contact Alec Johnson at (262) 875-9469 or alec.johnson@jrn.com. Follow him on Twitter at @AlecJohnson12.