St. Joan Antida High School In v. Milwaukee Public School Distri
Opinion of the Court
There have been several constitutional challenges to school busing in Wisconsin over the years. See, e.g. , St. Augustine Sch. v. Evers ,
*1006MPS offers free transportation to public-school students who attend certain schools outside of their neighborhoods. All other students-including private-school students-are only eligible if they live farther than one mile from the nearest public-transportation stop. MPS also requires private schools to submit a roster of students who need transportation by July 1; it has no such requirement for its public schools. St. Joan Antida High School, a private school, filed this lawsuit, claiming that these restrictions violate the Equal Protection Clause. This is especially so, St. Joan submits, because state law requires MPS to transport students with "reasonable uniformity," whether they attend public or private schools.
The district court granted summary judgment to MPS, and St. Joan appeals. We affirm in part and reverse and remand in part. Rational bases exist for the differences in busing eligibility, and so we affirm on that ground. But more work needs to be done to resolve St. Joan's challenge to the July 1 deadline, and so we reverse and remand on that ground.
I. Background
Busing parochial schoolchildren with public funding used to be considered unconstitutional in Wisconsin. See State ex rel. Reynolds v. Nusbaum ,
After the amendment, Wisconsin passed enabling legislation that requires school districts to provide transportation for both public- and private-school students. See
MPS has exercised the city option, and it therefore offers transportation to Milwaukee-area schools. There are two primary types of public schools in the MPS system: (1) citywide schools, which offer special courses, like language-immersion classes or International Baccalaureate® programs, and draw from the entire Milwaukee area; and (2) attendance-area schools, which generally do not have such programs and draw only from a particular neighborhood. MPS, at times, designates certain students to attendance-area schools outside of their neighborhoods-making the school a "nonattendance-area school" (as we will call it, for ease of reference). The Milwaukee area, of course, also has private schools, like St. Joan. MPS explains that, under state rules, St. Joan technically has an attendance area; but unlike public attendance-area schools, St. Joan's allotted area is the entire city of Milwaukee.
To ensure transportation to these schools, MPS devised Policy 4.04. This lawsuit challenges two parts of that policy.
The first challenge concerns how MPS decides which students are eligible for busing. Under § 2 of Policy 4.04, high schoolers may receive free transportation only if they live two or more miles from their *1007school and "more than one mile walking distance from public transportation" (a restriction we will call the "one-mile rule").
The second challenge is to MPS's roster-notification deadline. Under § 121.54(2)(b), private schools must submit the names, grade levels, and residences of all students who are eligible to receive busing to MPS by May 15. The provision allows a school board to "extend the notification deadline," which MPS has done. Policy 4.04 states that private schools must submit the roster by the third Friday in September. In practice, however, the parties agree that MPS requires the rosters by July 1. According to MPS, the deadline is necessary so that it has sufficient time to arrange for the transportation of eligible private-school students before school starts. There is no like roster-notification deadline for public schools, MPS says, because it has immediate access to the requisite information needed for eligible public-school students.
In 2016, St. Joan applied to MPS for student transportation during the upcoming 2016-2017 school year. On May 14, 2016, St. Joan submitted its original roster, which included the names of sixty-two students relevant to this appeal; on September 29, 2016, it updated the list with six more relevant names. What prompted St. Joan to update its roster is unclear, but MPS refused to bus any of these sixty-eight students. Each of them lived within one mile of public transportation, and the six later-added students were disclosed after the July 1 deadline. St. Joan protested, but eventually covered transportation for the students. Doing so cost a total of $178,640 for the 2016-2017 and 2017-2018 school years.
Looking to recover that loss, St. Joan brought this action, which also seeks injunctive and declaratory relief. St. Joan asserts two claims. The first claim alleges that Policy 4.04's two restrictions-the one-mile rule and the July 1 deadline-violate the Equal Protection Clause of the Fourteenth Amendment. See
II. Discussion
The Equal Protection Clause of the Fourteenth Amendment guarantees that "no State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. This is "essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Ctr. ,
On appeal, St. Joan contends that the one-mile rule and the July 1 deadline violate the Equal Protection Clause. We first determine how searching our inquiry must be-under either strict-scrutiny or rational-basis review-before determining whether the restrictions pass constitutional muster. Because this case comes to us after summary judgment, our review is de novo. Dunn v. Menard, Inc. ,
A. Standard of Scrutiny
An equal-protection claim merits strict scrutiny, our most exacting inquiry, only if the state-crafted classification disadvantages a suspect class or "impermissibly interferes" with a fundamental right. Segovia v. United States ,
St. Joan, however, invokes another fundamental right-the right of parents to direct the education of their children. That right does exist. In Pierce v. Soc'y of the Sisters , the Supreme Court struck down a ban on parochial education and held that the "fundamental theory of liberty" protects parents from state attempts to "forc[e]" students into public schooling.
*1009Bowen v. Gilliard ,
St. Joan claims that the withholding of free busing, a state-subsidized benefit, amounts to a prohibited interference with the right to direct a child's education. This stretches Pierce too far. As a general rule, a state's "decision not to subsidize the exercise of a fundamental right does not infringe the right" and is therefore "not subject to strict scrutiny." Regan v. Taxation with Representation of Washington ,
It has never been held that if private schools are not given some share of public funds allocated for education that such schools are isolated into a classification violative of the Equal Protection Clause. It is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid.
St. Joan's reach for strict scrutiny stretches the record, too. There is no evidence that Policy 4.04 hamstrings the right of parents to direct their children's education. Parents can and do choose to send their children to Milwaukee private schools, despite Policy 4.04. Parents who cannot rely upon private transportation have other options available. All sixty-eight children live within one mile of public transportation (hence this lawsuit), and St. Joan in fact provided the students with busing. To be sure, the record contains testimonial evidence that some unenumerated number of families declined to send their children to St. Joan because it could not promise free busing. But that Policy 4.04 caused some families to "decide to modify" where they sent their children "does not transform" the policy into an intrusion on parental rights. Bowen ,
St. Joan also makes much of the fact that Wisconsin considers free transportation for private-school students to be "important," as evidenced by the 1967 constitutional amendment and § 121.54. This emphasis is misplaced. State-specific policies do not augment fundamental rights. Accord Washington v. Glucksberg ,
*1010With strict scrutiny off the table, rational-basis review governs St. Joan's challenges to the one-mile rule and the July 1 deadline. That standard permits a court to invalidate a legislative classification only if there is no rational relationship between the classification and "some legitimate government purpose." Segovia , 880 F.3d at 390. "Some" is key-a classification is generally valid as long as a rational basis is plausible, even if the legislature did not expressly endorse it. See FCC v. Beach Commc'ns, Inc. ,
B. The One-Mile Rule
Policy 4.04 draws a line. On one side are private schools, like St. Joan, and attendance-area schools, both of which are subject to the one-mile rule; on the other side are citywide and nonattendance-area schools, which are not. St. Joan argues that this line-drawing violates equal protection, at least as applied to it, because the one-mile rule irrationally treats private schools differently.
Equal-protection claims start with the question: treated differently than whom? See Erwin Chemerinsky, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 9.1, 698 (5th ed. 2015). In cases like this, where the challenged regulation provides explicit classifications, the answer should be easy. Driving laws may treat fifteen-year-olds differently than sixteen-year-olds. Liquor laws may treat saloons differently than grocery stores. And so on. The parties, however, muddle the answer here. MPS submits that St. Joan is technically an attendance-area school, because it has an allotted attendance area under state regulations. Thus, MPS contends, St. Joan is treated differently only when compared to dissimilar schools; but it is treated the same as its relevant comparator-attendance-area schools. St. Joan vehemently disagrees, arguing that it must be compared to citywide schools. St. Joan has an attendance area, the school concedes, but that attendance area is the entire city-just like citywide schools.
The debate is unnecessary. Arguments over whether there is an apt "similarly situated" comparator are suited for class-of-one equal-protection cases, in which the individual claimant must show that she was treated differently (and irrationally so) than someone else. See, e.g. , Harvey v. Town of Merrillville ,
Here, Policy 4.04 treats private schools, like St. Joan, differently than citywide schools and nonattendance-area schools-and that requires a rational basis. St. Joan submits that there is no rationale for the different treatment, especially in light of § 121.54 's reasonable uniformity requirement. MPS responds with two rational bases: (1) furthering its educational mandate by reducing overcapacity and expanding *1011access to special programs; and (2) cost savings. We will address whether those justifications suffice on their own terms, then consider the impact of § 121.54.
MPS, a public-school district, has obvious legitimate interests in reducing overcapacity in crowded attendance-area schools and in expanding special program access to its students. See Lewis v. Ascension Par. Sch. Bd. ,
There is a related reason for limiting the one-mile rule's application. MPS students who attend citywide or nonattendance-area schools are, logically, more likely to have to travel farther from their home to get to school than students who go to attendance-area schools. That beckons a trade-off. In exchange for MPS students traveling farther, MPS makes the travel easier by ensuring free busing for most students.
Faced with these rational bases, St. Joan reframes the issue. It posits, and the district court concluded, that the question is not whether MPS had a rational basis for exempting citywide and nonattendance-area students from the one-mile rule (the district court accepted that it did). The question, St. Joan says, is whether there is a rational basis for not extending the same benefit to private-school students. St. Joan sees an upside to the latter formulation, believing it requires MPS to identify something undeserving about private-school students to justify denying them the busing benefits some public-school students receive. But that is not how rational-basis review works.
The standard, like most in constitutional law, is a means-end test. See G. Stone et al., CONSTITUTIONAL LAW 453 (7th ed. 2013). We need only identify a legitimate end and ask whether the means-the classification-bears a rational relationship to the end. E.g. , Armour ,
That is what happened here. MPS has legitimate interests in reducing overcrowding and expanding educational access in *1012MPS schools. With those goals in mind, MPS eased transportation to and from the schools that can help it do both. Easing transportation for private-school (and attendance-area) students, on the other hand, would do little to further MPS's goals. And that distinction gives MPS reason enough to treat the schools differently under rational-basis review. See, e.g. , Idaho Dep't of Employment v. Smith ,
St. Joan attacks the rationality of MPS's application of the one-mile rule on other grounds. It asserts that overcrowding is not truly a problem in MPS schools, because many attendance-area schools are not at maximum capacity. St. Joan argues further that MPS has no reason to differentiate St. Joan from citywide schools because St. Joan also offers special programming. These arguments may have held water if St. Joan had a strict-scrutiny case. But it does not. On rational-basis review, classifications can be both underinclusive and overinclusive and still survive. E.g. , Wisconsin Educ. Ass'n Council v. Walker ,
Turning to MPS's second justification, cost savings may serve as a rational basis for classifications. See Bankers Life & Cas. Co. v. Crenshaw ,
Cost savings, in the context of MPS's other goals, provide an additional rational basis here. It may well be true, as St. Joan asserts, that a St. Joan student is no more expensive to bus than a citywide or nonattendance-area student. But MPS is already stretched thin; it spent forty-million dollars to provide busing in the 2016-2017 school year, barely any of which state aid covered. Despite those straits, MPS could believe that overcrowding and access concerns were worth taking on the added cost of busing most citywide and nonattendance-area students. It has no similar reason to take on those costs for private and attendance-area students. So MPS made the rational choice: pay more to expand busing to schools that could reduce overcrowding and promote program access, but not to schools that are less likely provide the same returns. See Bowen ,
*1013The one-mile rule therefore has rational bases. But how does § 121.54 's reasonable uniformity requirement factor in? Courts typically ask whether a rational basis is conceivable, without paying mind to what the state actually said or thought. Monarch Beverage ,
St. Joan's argument derives from Allegheny Pittsburgh Coal Co. v. Cty. Comm'n of Webster Cty., W. Va. ,
Allegheny 's holding is quite narrow. Three years after Allegheny came Nordlinger v. Hahn , another equal-protection challenge involving property taxes.
In Armour , the Supreme Court evaluated how Indianapolis divvied up the costs of a new sewer project among local homeowners. Indiana law required that such costs be "apportioned equally."
Despite the parallels-a state uniformity law and gross disparity-the Court in Armour held that Allegheny did not control.
This is not one of those rare cases. MPS's avowed rational bases are sound, and § 121.54 does not render them implausible. For one, § 121.54 's reasonable uniformity requirement is not "clear." See Armour ,
Of course, none of this means that the one-mile rule complies with § 121.54. That question is not before us, and the answer, unsettled as it is, should come from the Wisconsin courts. To resolve the equal-protection claim before us, we hold only that MPS has offered rational bases that are plausible notwithstanding state law.
In coming out the other way, the dissent goes further than we are willing. It draws on legislative history and potentially comparable lower-court decisions (like St. John Vianney ) to conclude that the one-mile rule violates § 121.54 clearly enough to implicate Allegheny and negate MPS's rational bases. With respect, we think that approach does more than what Allegheny and Armour did. For even if the one-mile rule violates § 121.54,
*1015C. The July 1 Deadline
MPS additionally requires private schools to provide by July 1 the names of students who need busing. This deadline applies only to private-school students, not MPS students, and thus St. Joan claims that it also violates equal protection. In response, MPS proffers one rational basis in support of the deadline: administrative necessity.
There is no question that administrative concerns can justify certain classifications. E.g. , Armour ,
That is sufficient to deem the deadline constitutional on its face.
That prospect gives us pause. The time needed to arrange for transportation before the school year justifies imposing a roster-notification deadline on private schools. But pre -arrangement needs offer no justification for treating post -arrangement latecomers differently. Granted, some rigidity in the deadline may be rational (to motivate private schools to comply with the it); but even that would not justify treating students who move to the district near or after the deadline differently, based only on whether they go to private or public school. We see no rational basis for that distinction, and MPS has not provided any. Perhaps there are heightened burdens associated with latecomer private-school students that do not exist for public-school students, but again, MPS has not pointed to any.
*1016That said, we cannot order relief on this record. Unlike the dissent, at least two things remain unclear to us. First, we do not know whether, in fact, MPS enforces the July 1 deadline in the manner just described. At oral argument, counsel for MPS hedged when asked directly; and the parties have not directed us to a part of the record that reveals a clear answer. Second, we do not know why St. Joan updated its roster after the July 1 deadline-whether the result of latecomers, procrastination, or something else. These facts matter, of course, because an as-applied challenge concerns only the present case, not hypotheticals. See, e.g. , Hegwood v. City of Eau Claire ,
III. Conclusion
For these reasons, we AFFIRM the district court's judgment with respect to the one-mile rule and we REVERSE and REMAND for further proceedings consistent with this opinion with respect to the July 1 deadline.
Policy 4.04 provides different transportation terms for elementary schools. Those terms are not relevant to this dispute.
St. Joan sued on its own behalf and on behalf of the sixty-eight children's parents, from whom St. Joan received assignments of rights and claims. The exemplar assignment in the record speaks only of a "full and complete assignment of rights and claims under
We set aside intermediate scrutiny, which generally applies to classifications based on quasi-suspect classes, like gender, because it has no potential application to this case. See, e.g. , Hayden ex rel. A.H. v. Greensburg Cmty. Sch. Corp. ,
We said earlier that we do not need to determine, for equal-protection purposes, what types of schools St. Joan is most like (citywide or nonattendance area, who generally get busing, or attendance-area schools, who generally do not). At the same time, we have no basis to say what practical and regulatory distinctions will matter to the Wisconsin courts for § 121.54 purposes.
It is worth adding that in Allegheny , unlike here, the state courts at least had an opportunity to decide whether the challenged scheme violated state law. West Virginia's highest court assumed that it did, but the court refused to order relief because it concluded that absent "intentional and systemic" undervaluation the petitioners had to seek relief from the assessor. Allegheny ,
We use the term "on its face" advisedly, although we note that the July 1 deadline has not been recorded anywhere (at least as far as this record is concerned). That is odd, particularly because the July 1 deadline conflicts with the September deadline set forth in Policy 4.04 and the May 15 deadline in
Dissenting Opinion
I respectfully dissent. Unlike my colleagues, I think this is indeed the "rare case" in which a state-law uniformity mandate removes otherwise plausible policy justifications for a local legislative classification, leaving no rational basis for the local rule. Nordlinger v. Hahn ,
* * *
To understand this unusual equal-protection claim, it's helpful to review the relevant state legal history. In 1962 the Wisconsin Supreme Court held that the state constitution prohibited the expenditure of public funds to transport children to parochial and private schools. State ex rel. Reynolds v. Nusbaum ,
Acting on this new constitutional authority, the Wisconsin legislature immediately "elect[ed] to provide for the transportation of children to any parochial or private school by amending the existing statutes ... to provide for transportation for students attending private or parochial schools and public schools upon a reasonably uniform basis ." Cartwright v. Sharpe ,
To that end, the legislature amended the school-transportation statutes to require "every school board" to provide transportation to and from public and private schools for all students who reside in the district and live "2 miles or more" from their school. WIS. STAT. § 121.54(2)(a), (b) (mandating public and private school transportation on these terms). So school districts have a statutory duty to provide *1017free transportation to and from school for all resident children who live two miles or more from their school, whether public or private.
School districts may of course provide more generous transportation service. The statutory scheme recognizes that school boards may elect to transport "all or some of the pupils" who reside in the district and live less than two miles from their school.
Finally, and most relevant here, the transportation mandate excludes children who live in cities served by public transit systems.
The 1967 legislation soon spawned litigation. In a key early case interpreting the new statutory scheme, the Wisconsin Supreme Court explained that "[t]he important change" ushered in by the constitutional amendment and enabling legislation "was to provide that where transportation is furnished, either mandatory or permissive, it must be on a reasonably uniform basis to children attending either public or private schools." Cartwright ,
* * *
The Milwaukee Public School District ("MPS" or "the District") qualifies for the city option. The District serves children in the City of Milwaukee, where public bus service (operated by the Milwaukee County Transit System) is available. MPS has chosen to provide free transportation service to some resident children and thus is bound by the statutory obligation to treat public and private school students alike.
MPS Administrative Policy 4.04 contains the District's transportation regulations. Two features of the policy are at issue here. The first concerns the distance standards for determining eligibility for free transportation. The policy draws no distinction between public and private elementary-school students. Tracking the statutory mandate for noncity schools, MPS provides free transportation for public and private school students in grades K-8 who live "two miles or more" from their school. ADMINISTRATIVE POLICIES OF THE MILWAUKEE PUBLIC SCHOOLS, POLICY 4.04(2)(a)1., (b)1. (Nov. 12, 2014).
The eligibility rules are different for students in grades 9-12. MPS conditions free transportation service for high-school students on the two-mile rule plus an additional distance requirement. The District will transport only those high-school students *1018who live "two miles or more" from their school and "more than one mile walking distance from public transportation." Id. 4.04(2)(a)3., (b)2. So families of high-school students who live within one mile of a public transit stop must pay their own transportation costs.
But MPS lifts this second condition for students who attend citywide public high schools or public high schools outside their neighborhood attendance area. Id. 4.04(5)(a)2., (b)2. In other words, students who attend public citywide high schools and live two miles or more from school get free transportation from the District regardless of their proximity to public transportation; their counterparts in private citywide high schools do not. The latter are ineligible for free transportation unless they live more than one mile from a public transit stop.
Students at private schools are disadvantaged in another way. Milwaukee children who attend private schools (regardless of grade level) cannot receive transportation from MPS unless the private school "submits the names, grade levels, and location of eligible students no later than the third Friday of September." Id. 4.04(2)(b)4. As my colleagues explain, in practice MPS requires private schools to submit their transportation rosters by July 1. Students who enroll after that date-whether later in the summer or after the school year has begun-are ineligible to receive transportation service from MPS for that school year. The roster requirement and July 1 cutoff date apply only to private schools. Late and mid-year enrollees in the District's own schools are not denied free transportation.
* * *
St. Joan Antida High School challenges these disparate transportation rules on behalf of itself and its students. St. Joan Antida is a private, all-girls high school in the City of Milwaukee with a citywide attendance area. That is, its students come from all over Milwaukee, not just the immediate neighborhood, so they are similarly situated in all material respects to students in public citywide high schools. Yet MPS treats them unequally for purposes of transportation eligibility. They are denied free transportation if they live within one mile of a public transportation stop. MPS does not apply this extra distance requirement to their counterparts at public citywide high schools. This difference in treatment, the school argues, violates the Fourteenth Amendment's Equal Protection Clause. St. Joan Antida also challenges the July 1 roster deadline, which operates as a cutoff date to receive transportation service but applies only to students in private schools.
My colleagues conclude that the challenged rules do not burden a fundamental right and thus do not trigger strict scrutiny under prevailing equal-protection doctrine. I agree and have nothing to add to the analysis in Section IIA of the majority opinion. The challenged rules need only be rationally related to a legitimate governmental interest. This is a highly deferential standard. As the majority explains, under rational-basis review, (1) the challenged law enjoys a presumption of validity; (2) the government's actual reasons for adopting it do not matter; and (3) the fit between the government's means and its ends can be both hypothetical and very loose. In short, as long as some legitimate governmental purpose is conceivably in play and the law might rationally be thought to serve that purpose, the test is satisfied. It's almost impossible to flunk this lenient standard.
Even so, there is a legal baseline below which local laws may not fall and still be thought minimally rational for equal-protection purposes. If state law places persons *1019in the same class and directs local governments to treat everyone in the class uniformly, local governments cannot discriminate on the very terms forbidden by state law and expect to survive rational-basis review. The Supreme Court explained and applied this principle in Allegheny . There the Court reviewed a tax-assessment method used by a West Virginia county that assessed property based on its purchase price when last sold and adjusted stale data on an ad hoc and sporadic basis to account for the passage of time. Allegheny ,
The county maintained that its assessment method was a rational way to measure "true current value" because it used actual sale prices plus periodic adjustments "[a]s those data grow stale."
The Court continued: "The States, of course, have broad powers to impose and collect taxes ... [and] may divide different kinds of property into classes and assign to each class a different tax burden so long as those divisions and burdens are reasonable."
As my colleagues observe, the Court later described Allegheny as " 'the rare case where the facts precluded' any alternative reading of state law and thus any alternative rational basis" for the challenged local practice or rule. Armour v. City of Indianapolis ,
The Court held that the case did not implicate Allegheny . The statute required Indianapolis to apportion costs equally-which the City plainly had done-but state law said nothing about later forgiveness. The Court explained: "[T]he City followed state law by apportioning the cost of its [sewer] projects equally. State law says nothing about forgiveness, how to design a forgiveness program, or whether or when rational distinctions in doing so are permitted." Id . at 687,
Unlike my colleagues, I do not read this last sentence as materially changing Allegheny 's fundamental holding. True, the Court in Allegheny said that the county's assessment method produced "dramatic differences in valuation," but that statement was descriptive, not doctrinal. If Armour truly limits Allegheny to local rules or practices that "dramatically" depart from state law, we'd need some standard to distinguish "dramatic" departures from those that are not. But Armour did not elaborate. On this point at least, I hesitate to read this passage from Armour as a doctrinal limitation on Allegheny .
Perhaps it's fair to read Armour as limiting Allegheny 's holding to clear violations of clear state uniformity mandates. If so, we have that here. As I've explained, the school-transportation statutes say-again and again-that school districts must treat public and private school students reasonably equally when it comes to access to publicly funded transportation. Districts operating under the city option need not provide free school transportation to any resident children, but if they provide it to some , then the law requires "reasonable uniformity in the transportation furnished to the pupils, whether they attend public or private schools." § 121.54(1)(b).
Put another way, if the city option were not in play, MPS would have a plain statutory duty to transport all students who live two miles or more from their school, whether public or private. § 121.54(2). But because public transit is readily available in Milwaukee, MPS may (1) provide no busing at all or (2) provide busing on equal terms to public and private school students. § 121.54(1)(b). MPS has chosen a third way. It provides transportation for students in public citywide high schools who satisfy the two-mile rule but not their counterparts in private citywide high schools. It has invoked the city option on discriminatory terms expressly forbidden by the statute. That's an irrational policy choice as a matter of law.
It's true, as my colleagues point out, that § 121.54(1)(b) has not been the subject of much appellate litigation in the state courts. The Wisconsin Supreme Court has not had occasion to address its scope. In one case the state court of appeals concluded that the term "reasonable uniformity" in § 121.54(1)(b) is ambiguous. St. John Vianney Sch. v. Bd. of Educ. of Sch. Dist. of Janesville ,
That was enough to decide the case, but the opinion continues with some extensive dicta. The court went on to observe that "[t]he overall concern behind the school transportation statutes is the safety and welfare of pupils."
The actual holding in St. John Vianney is limited. The court held only that the uniformity mandate in § 121.54(1)(b) does not require school districts to use identical modes of transportation for public and private school students. The court's extended discussion goes further, suggesting that whatever else the term "reasonable uniformity" may entail, at a minimum it prevents school districts from using different distance-from-school standards for public and private school students to determine their eligibility for free transportation. MPS's one-mile rule is a materially similar distance standard; high-school students who live within one mile of a public transit stop are ineligible for free transportation to school. But the rule is discriminatory on its face: it applies only to students at private citywide high schools; students at public citywide high schools get free transportation regardless of their proximity to public transit. On the reasoning of St. John Vianney , the statutory uniformity mandate forbids precisely this kind of discrimination by local school districts in the provision of free school transportation.
A case decided four years before St. John Vianney sheds even more light on the scope and operation of the uniformity requirement. In Hahner v. Board of Education , a school district provided busing on almost uniform terms to public and private schools. The problem was that it routinely refused to bus students to certain Catholic schools that held classes during a week when other schools in the district (public and private) had spring break.
Addressing the "reasonable uniformity doctrine" in the school-transportation code,
The crucial question is whether a school board's discretion in coordinating the scheduling of the transportation of pupils to public and private schools extends to not transporting pupils to private schools during a week when the public schools are closed for vacation. ... [T]he purpose of coordinating these transportation activities is "to insure the safety and welfare of the pupils" as provided in sec. 121.56, Stats. This court believes the objective of this requirement is to prevent discriminatory treatment of pupils attending private schools in the transportation provided them. The fact that the school district would save money by not transporting private school pupils during a week when the public schools are closed for vacation is a factor which bears no relationship to the safety and welfare of the pupils being transported to public schools.
Id. at 479 (emphasis added).
Together, St. John Vianney and Hahner make clear that MPS's discriminatory one-mile rule violates the statutory requirement of reasonable uniformity in the provision of free transportation to public and private school students. The challenged rule is unequal on its face and cannot be justified by reference to student safety and welfare, which are the only legitimate public-policy interests recognized by state law as justifications for school-transportation distinctions between public and private school students. Simply put, state law forbids MPS from making a policy choice to allocate free transportation on these unequal terms.
MPS defends its discriminatory one-mile rule based on abstract goals of avoiding overcapacity in its neighborhood schools, expanding access to special programming, and saving money. My colleagues accept these justifications as rational reasons for discriminating against private school students. With respect, state law leaves no room for these possible policy justifications. The state legislature has decreed a public policy of reasonably uniform treatment of public and private school students when it comes to free school transportation. School districts may not have different eligibility rules for public and private school students (except perhaps for safety and welfare reasons). Under clear state law, discriminating between public and private school students is not an available means to achieve other policy goals. Put somewhat differently, a local rule that defies the state-law uniformity command serves no legitimate governmental purpose. Like the county tax-assessment method in Allegheny , the MPS rule violates the Equal Protection Clause.
*1023In reaching this conclusion, I do not purport to "speak for the Wisconsin courts" any more than the Supreme Court purported to "speak for the West Virginia courts" when it found an equal-protection violation in Allegheny . Majority Op. at p. 1014. My conclusion simply recognizes that the statutory uniformity mandate removes the plausible policy justifications for this discriminatory local rule, which classifies students on the precise terms forbidden by statute.
For similar reasons, the District's enforcement of the July 1 roster deadline violates the Equal Protection Clause. As I understand this claim, St. Joan Antida does not object to a general rule requiring private schools to submit a transportation roster by a date certain. It challenges the District's practice of denying free transportation to students who enroll after the deadline passes. Late and mid-year enrollees at public schools do not suffer the same fate. This policy, too, violates the state-law requirement of reasonable uniformity, leaving no rational basis for the discriminatory treatment.
My understanding of this claim differs from the majority's in another way. St. Joan Antida challenges the enforcement of the roster policy as a general matter. The school seeks an injunction against the discriminatory denial of transportation to students who enroll in private school after the July 1 deadline. St. Joan Antida also seeks damages; the monetary remedy is of course keyed to facts peculiar to the school and its students. But the parties have stipulated to damages.
My colleagues share some of my concerns about the rationality of this policy and remand for further clarification and development of this claim. As I see it, all that remains to be done on remand is to fashion an appropriate injunctive remedy and enter judgment granting injunctive and monetary relief. St. Joan Antida has explained that students who have not yet enrolled in private school by the July 1 deadline (and thus do not appear on a *1024private school's roster) are denied free transportation for the ensuing school year. Late and mid-year enrollees in the public schools are not. MPS has not denied that it enforces its July 1 roster policy in this way. In light of the statutory uniformity mandate, this discriminatory treatment cannot be justified as rationally related to a legitimate governmental interest.
For these reasons, I would reverse and remand with instructions to enter judgment for St. Joan Antida.
Hahner does not specifically mention § 121.54(1)(b), but it relies on authorities that do. Hahner v. Bd. of Educ. ,
In Racine Charter One, Inc. v. Racine Unified School District , we accepted a school district's "cost" justification as a rational basis for not busing students to a charter school.
My colleagues say that I've gone too far because my analysis "draws on legislative history and potentially comparable lower-court decisions (like St. John Vianney )." Majority Op. at p. 1014-15. That misunderstands Wisconsin's approach to statutory interpretation and the constitutional status of the state court of appeals.
Wisconsin has adopted a textualist method of statutory interpretation that limits the use of legislative history. State ex rel. Kalal v. Circuit Court for Dane Cty. ,
Further, the state court of appeals, though divided into four districts, is a unitary court, and its published opinions are binding statewide precedent until "overrule[d], modif[ied,] or withdraw[n]" by the state supreme court. Cook v. Cook ,
Reference
- Full Case Name
- ST. JOAN ANTIDA HIGH SCHOOL INC., Plaintiff-Appellant, v. MILWAUKEE PUBLIC SCHOOL DISTRICT, Defendant-Appellee.
- Cited By
- 41 cases
- Status
- Published