In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2333
ST. AUGUSTINE SCHOOL, et al,
Plaintiffs-Appellants,
v.
JILL UNDERLY, in her
official capacity as Superintendent
of Public Instruction, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:16-cv-00575 — Lynn Adelman, Judge.
____________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
AND AFTER CERTIFICATION TO THE WISCONSIN SUPREME COURT
— DECEMBER 20, 2021
____________________
Before RIPPLE, KANNE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. The State of Wisconsin provides
transportation benefits to most of its school-aged children. See
Wis. Stat. §§ 121.51, 121.54. For private-school students,
2 No. 17-2333
however, it limits those benefits to only one school “affiliated
or operated by a single sponsoring group” within any given
attendance area. That may seem like a straightforward crite-
rion, but the fact that this case is now on its second trip to the
Seventh Circuit, after intermediate stops at the Supreme
Court of the United States and the Wisconsin Supreme Court,
demonstrates that complexities abound when a private
school’s affiliation is religious in nature. The particular ques-
tion before us is whether the state Superintendent of Public
Instruction, then Tony Evers (the present Governor of the
state), correctly decided that St. Augustine School, a free-
standing entity that describes itself as Catholic but independ-
ent of the church’s hierarchy, 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. (Governor Evers’s successor in the post
of Superintendent is now Jill Underly, whom we have substi-
tuted as the appellee.)
In 2018, we concluded that the two schools were affiliated
with the same sponsoring group—the Roman Catholic
church. This meant that children attending St. Augustine were
not entitled to the state’s transportation benefit, because St.
Gabriel’s was located in the same attendance area, and its stu-
dents were already receiving that benefit. As the second ap-
plicant, we thought, St. Augustine did not qualify under the
state statute. See St. Augustine School v. Evers, 906 F.3d 591 (7th
Cir. 2018) (St. Augustine I). The Supreme Court vacated that
decision and remanded the case to us for further considera-
tion in light of Espinoza v. Montana Dept. of Revenue, 140 S. Ct.
2246 (2020). See St. Augustine School v. Taylor, 141 S. Ct. 186
(2020). After receiving supplemental briefs that addressed
both Espinoza and the potential impact of Fulton v. City of
No. 17-2333 3
Philadelphia, 141 S. Ct. 1868 (2021) (at that time yet-to-be de-
cided), we realized that we needed guidance from the Wis-
consin Supreme Court on the proper way to determine “affil-
iation” under state law. We therefore certified that question to
the state’s highest court, which generously accepted our re-
quest and responded in an opinion issued in July 2021. See St.
Augustine School v. Taylor, 961 N.W.2d 635 (Wis. 2021) (St. Au-
gustine II).
At this stage, all that remains is for us to apply the instruc-
tions of the state supreme court to the facts of this case, and
thereby (we hope) come closer to resolving this long-running
dispute. Those instructions gave us broad principles for deci-
sion, rather than particularized factors:
[I]n determining whether schools are “affiliated with
the same religious denomination” [i.e., the same spon-
soring group] pursuant to Wis. Stat. § 121.51, the Su-
perintendent is not limited to consideration of a
school’s corporate documents exclusively. In conduct-
ing 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 investi-
gation or surveillance with respect to the school’s reli-
gious beliefs, practices, or teachings.
961 N.W.2d at 637. As we read these instructions, the Super-
intendent is not limited to formal corporate documents in her
assessment of affiliation. Nonetheless, as a matter of state law
she may not delve into “the school’s religious beliefs, prac-
tices, or teachings,” because the latter inquiry would trans-
gress the First Amendment prohibition against excessive
4 No. 17-2333
entanglement with religious matters. See Lemon v. Kurtzman,
403 U.S. 602, 613 (1971).
We conclude that the Superintendent’s decision in the case
before us 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.
I
A brief review of Wisconsin law is necessary in order to
understand the way in which we must apply the state su-
preme court’s guidance. Two state statutes are relevant: Wis.
Stat. § 121.54, and Wis. Stat. § 121.51. The first of those gener-
ally addresses the topic of transportation provided by Wis-
consin’s public-school districts. It provides as follows in rele-
vant part:
Except as [otherwise] provided …, the school board
of each district operating high school grades shall pro-
vide transportation to and from the school a pupil at-
tends for each pupil residing in the school district who
attends any elementary grade, including kindergarten,
or high school grade at a private school located 2 miles
or more from the pupil’s residence, if such private
school is a school within whose attendance area the
No. 17-2333 5
pupil resides and is situated within the school district
or not more than 5 miles beyond the boundaries of the
school district measured along the usually traveled
route.
Wis. Stat. § 121.54(2)(b)1 (emphasis added). On its face, this
law contains no restrictions on private-school students, but
there is more here than meets the eye. Section 121.51 defines
the term we have emphasized, “attendance area,” for pur-
poses of transportation:
In this subchapter:
(1) “Attendance area” is the geographic area desig-
nated 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 superin-
tendent shall, upon the request of the private school
and the board, make a final determination of the at-
tendance area. The attendance areas of private schools affil-
iated 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.
Wis. Stat. § 121.51(1) (emphasis added). Long ago, the Wis-
consin Supreme Court construed the term “the same religious
denomination” in this statute to mean “a single sponsoring
group,” in order to avoid the possibility of incompatibility
with the Religion Clauses of the First Amendment. See State
ex rel. Vanko v. Kahl, 188 N.W. 2d 460 (Wis. 1971). Neither party
6 No. 17-2333
asked the Wisconsin Supreme Court to revisit Vanko in the
course of deciding our certified question, and so it expressly
“decline[d] to overrule or revisit” that case. See St. Augustine
II, 961 N.W.2d at 643.
The Vanko court also offered an example of what it means
to be “affiliated with” the same religious denomination:
[I]f the Franciscan Order of the Roman Catholic church
operates a school in the northern part of the Racine dis-
trict, and the Jesuit Order operates a school in the
southern part of the district, they are to be considered,
along with diocesan schools, as part of the Catholic
school system of Racine because all are ‘affiliated with
the same religious denomination.’ It means that, and
nothing more.
Vanko, 188 N.W.2d at 465. Importantly, however, neither the
Franciscans, nor the Jesuits, nor the Diocese was involved in
that case, and none of them attempted to challenge the as-
sumption that they were all affiliated with the same religious
denomination. The court thus had no need to resolve the pre-
cise question now before us.
The other pertinent case from the Wisconsin Supreme
Court (apart from St. Augustine II) is Holy Trinity Community
School, Inc. v. Kahl, 262 N.W.2d 210 (Wis. 1978). There the ques-
tion was whether a school district erred by looking behind the
Holy Trinity Community School’s representation that it was
nondenominational. The district questioned the accuracy of
that statement, because up until a short time earlier, the
school had been formally affiliated with the Roman Catholic
church. The state supreme court ruled that in applying the
state statutes, the Superintendent unlawfully had entangled
No. 17-2333 7
the state in religious affairs. 262 N.W.2d at 215. In order to
avoid that type of intrusion, which the court found incompat-
ible with the First Amendment’s Establishment Clause, the
court adopted the following rule:
[T]o make the inquiry and to determine that the school
is or is not affiliated with the Catholic denomination is
to make an impermissible inquisition into religious
matters. We are obliged to accept the professions of the
school and to accord them validity without further in-
quiry.
262 N.W.2d at 217.
In St. Augustine I, we held that the Superintendent had
done no more than what Holy Trinity requires—that is, he had
“accept[ed] the professions of [St. Augustine School] and
[had] accord[ed] them validity without further inquiry.” Our
dissenting colleague disagreed with this characterization. In
his view, there was a critical intermediate step in our case that
did not exist in Vanko or Holy Trinity: namely, whether, when
St. Augustine described itself as “Catholic,” it was also saying
that it understood itself to be part of the same sponsoring
group as St. Gabriel’s. That step required an “inquisition into
religious matters,” as he saw it, and thus was impermissible
under Holy Trinity.
Upon closer examination, we are now persuaded that
there are meaningful differences between the situation before
us and the one in Holy Trinity. These differences help to ex-
plain why the Superintendent’s seemingly simple acceptance
of St. Augustine’s statement that it is “Catholic” does not end
the matter. Holy Trinity concerned a situation where a school
professed that it was independent of any religious
8 No. 17-2333
organization and had demonstrated legal independence
through its corporate charter and bylaws. This represented a
change from its former structure, which did involve a church
affiliation. An examination of just the kind of neutral and sec-
ular factors that St. Augustine II called for corroborated the
school’s independent self-identification. The Holy Trinity
court thus concluded that the Superintendent had been
wrong to find that the school was de facto still affiliated with
the church.
Determining whether a school has broken away from a
sponsoring organization is not the same as looking at two
schools and asking whether the same organization is behind
both of them. The former situation requires us to compare the
“before” and “after” for the school—relying only on neutral
and secular factors—and see if it has severed an affiliation.
The latter situation calls for a determination whether two sep-
arate schools are both sponsored by a single entity. The latter
task is difficult when one of the schools says that it has always
been independent, even though some doctrinal similarities
with other schools are evident.
Without a neutral and secular basis, a determination of
“affiliate[ion]” for purposes of the Wisconsin statutes cannot
rest exclusively on the fact that two schools say only that they
are Christian, or Islamic, or Jewish. That is too high a level of
generality to support a finding that both operate under the
aegis of a single sponsoring organization. No one doubts that
there are significant religious differences between Roman
Catholics and Protestants, between Presbyterians and Bap-
tists, between Sunni and Shi’a Muslims, and between Ortho-
dox and Reform Jews, just to name a few examples where um-
brella labels cover distinctive faiths. Wars have been fought,
No. 17-2333 9
and in some instances are still underway, over these matters.
One need only recall the hostilities that still exist between the
Shi’a and the Sunni branches of Islam, or the lengthy violence
in Northern Ireland between the Protestant unionists and the
Catholic separatists. And as recently as 2021 there have been
calls by conservative Methodists to split away from the larger
denomination. See https://www.christianitytoday.com/news/
2021/march/conservative-umc-split-postponed-global-meth-
odist-church.html. Finally, there are serious tensions within
Judaism among the ultra-Orthodox, Orthodox, and Reform
groups.
We therefore understand from St. Augustine II that the
Wisconsin statutes do not permit a finding of affiliation based
on a public official’s assessment of how close in doctrine two
sectarian schools may be. However difficult it may be, the
court has instead called for that decision to be made on neu-
tral and secular grounds. We endeavor in this opinion to shed
some light on that process.
II
The present case arose when Joseph and Amy Forro,
parents of children at St. Augustine School, sought to qualify
for transportation benefits. They offered two primary theories
in support of their case. First, they contended that the
Superintendent deprived them of a public benefit on account
of their religion, in violation of the Free Exercise Clause; and
second, they argued that the Superintendent’s application of
the attendance-area statute violated the Establishment
Clause, because the methodology he used to characterize the
two schools excessively entangled the state with religious
doctrine.
10 No. 17-2333
Given the state supreme court’s decision, we do not find it
necessary to reach any constitutional issues in this case. In-
stead, it is enough to decide whether the Superintendent
properly applied Wisconsin law when he characterized the
two schools as affiliated. In St. Augustine I, we rejected the For-
ros’ first argument, because as we saw it, religion played no
direct part in the Superintendent’s decision: had St. Augustine
been the incumbent school and St. Gabriel the newcomer, it
would have been St. Gabriel whose students would have been
ineligible. The same would have happened, we thought, for a
second secular school affiliated with the same organization.
Being second in line has nothing to do with religion, and it
appeared to us that this criterion was neutrally applied. We
need not pursue this theory further, however.
We turn instead to the Wisconsin Supreme Court’s
description in St. Augustine II of the proper way to determine
affiliation for purposes of Wis. Stat. § 121.51. The overarching
message the court sent was that the state officials conducting
the affiliation inquiry must confine themselves to “neutral
and secular” factors. 961 N.W.2d at 637. Just as the court had
held in Holy Trinity, anything that involves the probing of the
beliefs held by a religious institution at issue is not permitted
by state statute, because it is at least possible that such an
inquiry may stumble into constitutional problems. In making
this “neutral and secular” inquiry with respect to religiously
affiliated schools, the state officials are “not limited to
consideration of a school’s corporate documents exclusively.”
Id. It is also permissible for them to look at “the professions of
the school with regard to the school’s self-identification and
affiliation.” Id. Other neutral considerations are also
permissible—perhaps facts such as the presence or absence of
resource sharing or joint operations. Although this is the same
No. 17-2333 11
methodology that should be used with secular sponsoring
organizations, we note that the application of the test is likely
to be easier for secular schools, because the question of
religious doctrine will not arise.
We note that in St. Augustine II, some justices would have
placed great weight on mutuality of commitment between
two organizations, as a key neutral factor that would reveal
whether both schools are affiliated with a single sponsoring
organization. They found it hard to imagine a one-way
“affiliation”—a relationship that one side embraces, but the
other side abjures. The majority of the justices, however, did
not find that mutual agreement to affiliate is essential.
Nonetheless, even under the majority’s view, we do not
understand the court to have forbidden any consideration of
mutuality. If both schools affirmatively proclaim their
affiliation with one sponsoring entity, we see no reason why
the Superintendent could not take that fact into account.
The Wisconsin Supreme Court, in an effort to construe the
state statutes in a way that does not give rise to problems un-
der the Religion Clauses, has instructed that those statutes
forbid the Superintendent from delving into the nuances of
the religious differences that pervade our country and with-
holding state benefits for reasons that can be tied to the reli-
gious preference of the disfavored group. See Espinoza, 140 S.
Ct. at 2255. Yet that is what reliance on the label “Catholic”
entailed here, even if only modestly. Given the fluidity of re-
ligious labels and this country’s firm commitment to personal
choice and religious diversity, it may be impossible to decide
that two entities are affiliated by looking solely at the fact that
they both use the same label. Moreover, we can find no reason
why the state was entitled to accept St. Augustine’s self-
12 No. 17-2333
characterization as Catholic, while at the same time to reject
its vociferous insistence that its understanding of what it
means to be Catholic is significantly different from that of the
diocesan schools. Neither representation was more or less im-
portant to St. Augustine’s self-identification. While in other
circumstances an entity may make the type of neutral and sec-
ular statement that is within bounds for the state to consider,
this is not such a case.
III
This is an appeal from the district court’s grant of sum-
mary judgment in favor of the state defendants. With the ben-
efit of the guidance we received from the Wisconsin Supreme
Court, we conclude that it was error to rule for the state. Be-
cause the case was dismissed before the district court had oc-
casion to determine the amount of monetary damages (if any)
to which the Forros or St. Augustine might be entitled, or what
type of injunctive relief (if any) for any plaintiff is proper, we
REVERSE the judgment of the district court and REMAND
for further proceedings consistent with this opinion.