SCOW docket: The Seventh Circuit asked the state Supreme Court for an answer: It got four

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized.

The case: St. Augustine School and Joseph and Amy Forro v. Superintendent of Public Instruction Carolyn Stanford Taylor and Friess Lake School District​

Majority/Lead Opinion: Justice Ann Walsh Bradley (23 pages),  joined by Justices Rebecca F. Dallet, Brian Hagedorn, and Jill J. Karofsky

Concurrence: Hagedorn (20 pages)

Concurrence: Roggensack (6 pages)

Dissent: Rebecca Grassl Bradley (29 pages), joined by Justice Annette K. Ziegler

Walsh Bradley

The upshot

The state Supreme Court was directed by the Seventh Circuit Court of Appeals to answer a specific question:
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"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." 

The Supreme Court asked the parties whether it should revisit two precedential decisions it relied on in its deliberations....

The cases were State ex rel. Vanko v. Kahl and Holy Trinity Community School, Inc. v. Kahl.  None asked for reconsideration.

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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. 

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Background

St. Augustine is a private, religious school located within the boundaries of the Friess Lake School District (the School District). On its website, St. Augustine describes itself as "an independent and private traditional Roman Catholic School." 

The Forros and St. Augustine plaintiffs sought from Friess Lake schools transportation for the Forros' children to and from St. Augustine.

In the request, St. Augustine asserted that it is unaffiliated with the Archdiocese of Milwaukee. It stated: "Our governing body is our Board of Directors and we receive no funding from nor communicate with the Diocese on matters of education." As such, St. Augustine distinguished itself from St. Gabriel Catholic School, a diocesan Catholic school also located within the boundaries of the School District.

The School District denied St. Augustine's request. In doing so, it noted that the Forros' address "is within the boundaries already approved for a Catholic School." Because the School District already bused students to St. Gabriel, it determined that it could not approve St. Augustine's request as it would constitute an overlapping attendance area. 

With St. Augustine and the School District at odds, they sought a determination from the Superintendent. As it did before the School District, St. Augustine argued that it is not affiliated with the same religious denomination as St. Gabriel within the meaning of (the law).

In support of this argument, it asserted:

"Neither St. Augustine School, Inc., nor the school operated by the corporation, has ever been affiliated by control, membership, or funding with the Archdiocese of Milwaukee. No representative of the Archdiocese or a parish church of the Archdiocese has ever been a director or officer of St. Augustine School, Inc. No employees of St. Augustine School have ever been hired or compensated by the Archdiocese or a parish church of the Archdiocese. None of the religious instructors at St. Augustine School have ever been employed, assigned, or compensated for their work at St. Augustine School by the Archdiocese or a parish church of the Archdiocese."

Then-Superintendent of Public Instruction Tony Evers denied the transportation request.

He concluded that "St. Augustine School, Inc. is a private, religious school affiliated with the Roman Catholic denomination." Further, he determined that "[t]he District already provides transportation to students attending St. Gabriel School, another private, religious school affiliated with the Roman Catholic denomination, the attendance area of which is co-extensive with the attendance area of the District." As a result, the Superintendent concluded that St. Augustine's attendance area overlaps that of St. Gabriel and thus "the Friess Lake School District is not required to provide transportation to students attending St. Augustine School, Inc."

Evers examined school documents, such as bylaws and papers associated with a school name change and found that they were not useful in determining the school's religious v. non-religious nature or its affiliation with a particular denomination. Evers turned to St. Augustine's own website.

Relying on statements on St. Augustine's website, the Superintendent agreed with the School District that St. Augustine is affiliated with the Roman Catholic denomination. He cited in his decision "two of a number of statements in the website pages from which any reasonable person would conclude the School is a religious school affiliated with the Roman Catholic denomination." The first of these statements sets forth that St. Augustine is "an independent and private traditional Roman Catholic School . . . [that is] an incorporation of dedicated families, who believing that all good things are of God, have joined together to provide the children of our Catholic community with an exceptional classical education." Additionally, the website provides: "[St. Augustine] loves and praises all the traditional practices of the Catholic faith."

St. Augustine sued, alleging its First Amendment free exercise of religion rights were violated. A federal judge sided with Evers; St. Augustine appealed and the Seventh Circuit Court of Appeals affirmed the district court. 

The Seventh Circuit majority saw no free exercise problem with the Superintendent and School District's application of (the law), determining that "[t]he reason why St. Augustine cannot demand services within its desired attendance zone is not because it is a Catholic school; it is because – by its own choice – it professes to be affiliated with a group that already has a school in that zone."

St. Augustine appealed again, this time to the U.S. Supreme Court. That court vacated the Seventh Circuit's decision and remanded to the Seventh Circuit, which then sent its question to the Wisconsin Supreme Court.

The guts

State law includes this definition of a private school attendance area:

[T]he geographic area designated by the governing body of a private school as the area from which its pupils attend and approved by the school board of the district in which the private school is located. If the private school and the school board cannot agree on the attendance area, the state superintendent shall, upon the request of the private school and the board, make a final determination of the attendance area. The attendance areas of private schools affiliated with the same religious denomination shall not overlap unless one school limits its enrollment to pupils of the same sex and the other school limits its enrollment to pupils of the opposite sex or admits pupils of both sexes. 

The natural question that arises from the definition of "attendance area" is what it means for private schools to be "affiliated with the same religious denomination." After all, assuming that schools are co-educational and not single-sex, only one school of each "religious denomination" may receive the transportation benefit in a single attendance area. 

This court first addressed this language in 1971 in State ex rel. Vanko v. Kahl. In Vanko, the court addressed a constitutional challenge to the attendance area statute.

The court acknowledged that there would be a constitutional problem if the statute were interpreted to include "a restriction placed upon children attending religious schools and not placed upon those attending private, secular schools." This problem would arise because "[r]eligious affiliation would be the sole basis of the classification." Accordingly, the court engaged in a saving construction to avoid the constitutional infirmity, interpreting the statute to apply to both religious and nonreligious schools....

In a later case, Holy Trinity Community School, Inc. v. Kahl, the court found that a religious school's corporate charter and bylaws  are generally enough to show that it is independent of, and unaffiliated with, a religious denomination. Further inquiries would impermissibly involve the state in religious affairs.
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St. Augustine argues that the manner in which the Superintendent considered such information impermissibly places the Superintendent in the position to decide "what is Catholic" and thus constitutes an excessive entanglement with religion. In contrast, the Superintendent and the School District advance that simply accepting St. Augustine's self-identification does not require any investigation at all or any determination of whether St. Augustine is Catholic – they are simply taking St. Augustine at its word....

Vanko established that "affiliated with the same religious denomination" is "the test of affiliation in a single school system rather than operation by a single agency or set of trustees or religious order within a particular religious denomination." It further establishes that the statute applies to both religious and secular schools "affiliated or operated by a single sponsoring group." 

Holy Trinity is particularly apt in guiding our approach to the certified question. There, the court engaged in a similar exercise of line-drawing to that which we undertake in the instant case. The line the Holy Trinity court drew between the constitutional and the unconstitutional was at the investigation and surveillance of a school's religious practices. With regard to statements made by a school, the court set forth: "We are obliged to accept the professions of the school and to accord them validity without further inquiry."

Just as in Holy Trinity, accepting a school's professions that are published on its public website or set forth in filings with the state does not necessarily require any investigation or surveillance into the practices of the school. It need not require any religious inquiry at all.

As long as the Superintendent considers the school's professions and not its practices, the Superintendent remains on the correct side of the line. In other words, 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....

Vanko highlighted that "affiliated with the same religious denomination" is the test to be used within a school system "rather than operation by a single agency or set of trustees or religious order within a particular religious denomination." 

We thus conclude this methodological inquiry, determining that in examining whether schools are "affiliated with the same religious denomination,", 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. 

Hagedorn

Concurrence:

The Seventh Circuit Court of Appeals poses a methodological question to this court: what evidence may be considered when determining whether private schools are "affiliated with the same religious denomination" under (Wisconsin law)? The parties agree the answer includes both the self-representations of a school as well as corporate documents. In a narrow opinion, the majority reiterates this conclusion, which I agree with and join. However, this answer may not be of much assistance to the Seventh Circuit without the requisite statutory analysis explaining what this information may be used for under the law. Therefore, I write separately to examine what a "religious denomination" is under the statute and what it means for a school and a religious denomination to be "affiliated with" one another....

As the subsequent analysis will show, a religious denomination under the law is not the same thing as a religious faith; rather, statutory context reveals that "religious denomination" is a kind of religious organization. A  school – itself an organizational entity – must be "affiliated with" this type of religious organization. And "affiliated with" in this context involves a mutual organizational relationship. Both the private school and the religious denomination must agree to be affiliated with each other. This statutory inquiry is organizational, not theological. 

Therefore, (the law) prohibits overlapping attendance areas only when multiple schools have a mutual organizational relationship with a single religious denomination. In answer to the Seventh Circuit's certified question, a school's general description of its religious beliefs is unlikely to constitute relevant evidence because a statement of faith, even shared faith, does not demonstrate a mutual organizational relationship with a religious denomination. Affiliation requires more than a shared faith. On the other hand, a school's statement on its website or elsewhere that it is or is not affiliated with a religious denomination is relevant evidence of a mutual organizational relationship. Likewise, corporate documents, by-laws, and other types of organizational documents can also (oftentimes conclusively) demonstrate the presence or lack of a mutual organizational relationship between a school and a religious denomination.

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The phrase "religious denomination" appears in more than a dozen statutory sections. Many of these are in Chapter 187, titled "Religious Societies," which governs the state's relationship with religious organizations. These sections describe how religious organizations meet, incorporate, govern themselves, and own or manage property....

The statutory context paints a clear picture. When the legislature uses the phrase "religious denomination," it is referring to an organizational entity. To be sure, a religious denomination need not take a specific corporate form under Wisconsin law. As the majority observes, "'religious denomination' is a broader category than 'corporation.'"  But every single use of the phrase in the Wisconsin statutes demonstrates that a "religious denomination" is an organizational entity, not a synonym for religious faith generally. Thus, when (the law) asks whether two schools are "affiliated with the same religious denomination," the question is not whether both schools share the same creed, but whether they are both affiliated with a particular kind of religious organization – a religious denomination....

It is one thing for a school to self-declare their allegiance to a particular religious faith. It is quite another to affiliate with a particular religious organization without that organization's agreement. If a private school could unilaterally affiliate itself with a religious organization, it would deprive that organization of its liberty to decide with whom and with which organizations it chooses to associate. On this basis alone, the most reasonable reading of "affiliated with"...requires some mutual relationship between the private school and the religious denomination, whereby both agree to be affiliated.
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In answer to the certified question, I join the majority's conclusion that statements of affiliation by a school on its website, in filings with the state, or otherwise, along with corporate documents, may be permissible sources of evidence regarding whether two schools are affiliated with a religious denomination. This statutory inquiry, however, is organizational, not theological. A religious denomination under the law is a kind of religious organization, not a religious creed. And a school is affiliated with a religious denomination if there exists a mutual organizational relationship between the private school and the religious denomination. With this understanding, I respectfully concur.

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Roggensack

Concurrence:

I agree with Justice Hagedorn that to be "affiliated with" in a way that will result in overlapping attendance areas of St. Augustine's and St. Gabriel's... requires a "mutual organizational relationship" between St. Augustine and the religious denomination with which St. Gabriel is affiliated. That is, St. Augustine and the religious denomination, here the Archdioceses of Milwaukee, must mutually agree to be affiliated with one another. Because the majority opinion overlooks the dispositive legal issue of mutuality in the phrase "affiliated with" and instead focuses on a variety of factual inquiries that will not assist the Seventh Circuit Court of Appeals move forward in its decisional process, I do not join the majority opinion, but respectfully concur. 

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My review shows that the common dictionary definition of "affiliate," the way in which we have interpreted "affiliation" in matters relating to unions, our interpretation of "affiliate" in other legal contexts and our interpretation of "affiliated with" in other statutes have been consistent with one another. All require express or implied mutual agreement to ​connection between the persons and entities that are affiliated. Therefore, in regard to the case before us, I conclude that "affiliated with" requires a mutual organizational relationship between St. Augustine and the Archdiocese of Milwaukee, the religious denomination with which St. Gabriel is affiliated. 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. 

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Grassl Bradley

Dissent

Fifty years ago in State ex rel. Vanko v. Kahl, this court overstepped its judicial boundaries and rewrote the statute in order to save it. Vanko embodies an egregious example of legislating from the bench and should be overturned. Instead, the majority answers the certified question in a manner which unconstitutionally entangles state authorities in the religious affairs of private schools. It is of no import that none of the parties asked us to overrule Vanko in this dispute. We ordered the parties to address whether Vanko should be revisited, and the question is squarely before us notwithstanding the parties' negligible treatment of the subject. Litigants do not dictate the decisions of this court; the law does....


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The Vanko court effectively replaced the phrase "religious denomination" with "single sponsoring group" (ostensibly a secular phrase) so as to apply the statute's restriction to both secular and religious schools. Amending the law by judicial fiat, reasoned the Vanko court, prevents "[r]eligious affiliation [from being] the sole basis of the classification" and fulfills the statute's overarching purpose of providing "for the safety and welfare of school children." As further support for taking this legislative action, the Vanko court misapplied the constitutional doubt canon of statutory construction: "[i]f there were any doubt as to this being the correct construction of the statute, . . . [it] use[s] the statutory construction rule that, given two alternative constructions of a statute, preference is to be given to the one that saves the statute from being struck down as unconstitutional." 

The Vanko court's blatant judicial activism was not lost on all members of the court. Noting the unconstitutionality of the statute, dissenting Chief Justice E. Harold Hallows pointed out that "[i]n order to save the constitutionality of [the 'overlapping attendance area' provision] . . . , the majority has given a construction to these statutes beyond the breaking point and has construed them to mean exactly the opposite of what the legislature plainly said[.]" In the court's reconstruction of the statute, "the plain language 'the same religious denomination' now becomes a 'single operating group' and 'religious' is read out of the classification." Chief Justice Hallows rightly criticized the court's overreach: "We cannot take clear and unambiguous language and under the guise of construction or interpretation change what the legislature has said."

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A majority of this court privileges precedent over text in preserving this court's indefensible decision in Vanko. In answering the certified question, the majority perpetuates a judicial reconstruction of Wis. Stat. § 121.51(1), which, despite the court's legislative efforts to save it, nevertheless violates the Religion Clauses of the First Amendment by excluding religious schools and the students who attend them from a government benefit solely on the basis of their religion....​Repeating its error from 50 years ago, this court once again neglects its duty to strike an unconstitutional statute. I respectfully dissent.

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