2021 WI 70
SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP265-CQ
COMPLETE TITLE: St. Augustine School, Joseph Forro and Amy
Forro,
Plaintiffs-Appellants,
v.
Carolyn Stanford Taylor, in her official
capacity as Superintendent of Public
Instruction, Tony Evers, in his official
capacity as Superintendent of Public Education,
terminated 2/14/20 and Friess Lake School
District,
Defendants-Appellees.
CERTIFIED QUESTION FROM THE UNITED STATES COURT
OF APPEALS FOR THE SEVENTH CIRCUIT
OPINION FILED: July 2, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: May 4, 2021
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined.
ROGGENSACK, J., filed a concurring opinion. HAGEDORN, J., filed
a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a
dissenting opinion, in which ZIEGLER, C.J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants, there were briefs filed by
Richard M. Esenberg, Brian McGrath, Anthony LoCoco, and
Wisconsin Institute for law & Liberty, Milwaukee. There was an
oral argument by Richard M. Esenberg.
For the defendants-appellees Friess Lake School District,
there was a brief filed by Lori M. Lubinsky, Danielle B. Tierney
and Axley Brynelson, LLP, Madison.
For the defendant-appellee Superintendent Carolyn Stanford
Taylor, there was a brief filed by Hannah S. Jurss, assistant
attorney general; with whom on the brief was Joshua L. Kaul,
attorney general. There was an oral argument by Hanna S. Jurss.
2021 WI 70
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP265-CQ
STATE OF WISCONSIN : IN SUPREME COURT
St. Augustine School, Joseph Forro and Amy
Forro,
Plaintiffs-Appellants,
v.
FILED
Carolyn Stanford Taylor in her official JUL 2, 2021
capacity as Superintendent of Public
Instruction and Friess Lake School District, Sheila T. Reiff
Clerk of Supreme Court
Defendants-Appellees.
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined.
ROGGENSACK, J., filed a concurring opinion. HAGEDORN, J., filed
a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a
dissenting opinion, in which ZIEGLER, C.J., joined.
CERTIFICATION of question of law from the United States
Court of Appeals for the Seventh Circuit. Certified question
answered and cause remanded.
¶1 ANN WALSH BRADLEY, J. This case is before the court
on a certified question from the United States Court of Appeals
No. 2021AP265-CQ
for the Seventh Circuit. See Wis. Stat. § 821.01 (2019-20).1
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.
¶2 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."
¶3 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.
1All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
2
No. 2021AP265-CQ
Augustine, and St. Augustine also represented itself as a Roman
Catholic school.
¶4 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.
¶5 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.
¶6 Accordingly, we answer the certified question and
remand to the United States Court of Appeals for the Seventh
Circuit for further proceedings.
I
¶7 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
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No. 2021AP265-CQ
itself as "an independent and private traditional Roman Catholic
School."
¶8 Plaintiffs Joseph and Amy Forro are parents whose
children attend St. Augustine. Seeking transportation for their
children to and from school, the Forros along with St. Augustine
made a request for a busing contract from the School District
pursuant to Wis. Stat. § 121.54.2
¶9 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.
2 Wisconsin Stat. § 121.54 provides in relevant part:
Except as provided in sub. (1) or otherwise provided
in this subsection, the school board of each district
operating high school grades shall provide
transportation to and from the school a pupil attends
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 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.
§ 121.54(2)(b)1.
4
No. 2021AP265-CQ
¶10 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.
¶11 With St. Augustine and the School District at odds,
they sought a determination from the Superintendent.3 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 Wis. Stat. § 121.51(1). 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
3 Wisconsin Stat. § 121.51 outlines a procedure by which a
private school's attendance area is proposed by the private
school's governing body and then considered by the public school
district's school board. Providence Cath. Sch. v. Bristol Sch.
Dist. No. 1, 231 Wis. 2d 159, 176, 605 N.W.2d 238 (Ct. App.
1999). The statute further provides that in the event of a
disagreement between the private and public school, the
determination will be made by the Superintendent. Id.;
§ 121.51(1) ("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.").
5
No. 2021AP265-CQ
ever been employed, assigned, or compensated for their
work at St. Augustine School by the Archdiocese or a
parish church of the Archdiocese.
¶12 Then-Superintendent Tony Evers4 agreed with the School
District and denied St. Augustine's request for the
transportation benefit. 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."
¶13 The Superintendent's written decision reflects that he
examined all of the parties' filings, St. Augustine's website,
and the law in reaching his decision. He commented specifically
on the school's bylaws and determined that nothing in that
document "even hints that the School is a private religious
school or a private, religious non-denominational school." The
Superintendent also made specific comments on an amendment to
St. Augustine's articles of incorporation changing its name from
4Then-Superintendent Evers has since been elected Governor,
and has been replaced as a party to this case by the current
Superintendent, Carolyn Stanford Taylor.
6
No. 2021AP265-CQ
Neosho Country Christian School Inc. to its current moniker. As
with the bylaws, the Superintendent concluded that "there is
nothing in the School's name change amendment to its Articles of
Incorporation that reveals anything about the School's nature,
i.e., religious or non-religious, or its affiliation with a
religious denomination."5
¶14 Finding these sources unhelpful in determining St.
Augustine's "affiliation with a religious denomination" for
purposes of Wis. Stat. § 121.51, the Superintendent looked to
St. Augustine's publicly available website. Such a procedure
was permissible, in the Superintendent's view, because
"[r]eviewing a public website that is created and maintained by
or on behalf of the School, and accepting the School's
description of itself as set forth in that website, does not
create an excessive entanglement of state authority in religious
affairs." The Superintendent supported such a determination
with the premise that "a public website, by its very nature,
invites, and even wants persons to review it."
5In previous proceedings, disputes arose as to whether St.
Augustine submitted the original articles of incorporation to
either the School District or the Superintendent and whether the
Superintendent actually considered St. Augustine's original
articles of incorporation. The Seventh Circuit determined that
"plaintiffs have failed to carry their burden of producing
evidence to support their assertion that the defendants looked
at the document. Without any evidence that they did so, a
secondary dispute over whether St. Augustine submitted the
original articles of incorporation to the state is immaterial."
St. Augustine Sch. v. Evers (St. Augustine II), 906 F.3d 591,
595-96 (7th Cir. 2018) (citation omitted).
7
No. 2021AP265-CQ
¶15 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."
¶16 St. Augustine responded to the adverse determination
by filing suit in Washington County circuit court against the
Superintendent and the School District, asserting a claim
pursuant to 42 U.S.C. § 1983 that its rights under Free Exercise
and Establishment Clauses of the First Amendment were violated,
as well as a claim that the Superintendent and School District
contravened Wis. Stat. § 121.51(1). The Superintendent and
School District removed the case to federal court.
¶17 After the parties filed competing summary judgment
motions, the District Court granted the Superintendent and the
School District's motion with respect to the federal claims.
St. Augustine Sch. v. Evers (St. Augustine I), 276 F. Supp. 3d
8
No. 2021AP265-CQ
890 (E.D. Wis. 2017). As relevant to the certified question,
the District Court determined that the Superintendent and the
School District did not engage in an excessive entanglement with
religion in reaching their conclusion that St. Augustine is
affiliated with the Catholic denomination. Id. at 902. It
concluded that "because St. Augustine was obviously a religious
school and did not submit any articles of incorporation or
bylaws that identified or disclaimed its affiliation with a
religious denomination," the Superintendent permissibly looked
elsewhere to surmise what St. Augustine purported to be. Id.
The defendants then turned to the statement on St.
Augustine's website describing it as a "Roman Catholic
School," and they accepted this statement at face
value and concluded that St. Augustine was affiliated
with the Roman Catholic denomination. These actions
did not involve any participation in, supervision of,
or intrusive inquiry into religious affairs.
Id.
¶18 St. Augustine appealed, and the Seventh Circuit
affirmed the District Court's decision over Judge Ripple's
dissent. St. Augustine Sch. v. Evers (St. Augustine II), 906
F.3d 591 (7th Cir. 2018). The Seventh Circuit majority saw no
free exercise problem with the Superintendent and School
District's application of Wis. Stat. § 121.51, 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."
9
No. 2021AP265-CQ
Id. at 597. "The problem for St. Augustine is not that it is
Catholic; it is that it is second in line." Id.
¶19 The Seventh Circuit further determined that there was
no entanglement problem. "[T]he school district and state
superintendent did not consider St. Augustine's theology or its
religious practices." Id. at 598. Instead, in the Seventh
Circuit's view, "[t]aking a party's repeated chosen label at
face value hardly constitutes a deep-dive into the nuances of
religious affiliation." Id. at 599.
¶20 In contrast, Judge Ripple dissented, concluding that
the Superintendent failed to follow precedent when he went
beyond St. Augustine's articles of incorporation and bylaws to
make the determination at issue. Id. at 603 (Ripple, J.,
dissenting). In Judge Ripple's view, "[r]ather than grounding
his decision in the articles of incorporation and by-laws as he
was required to do under state law, [the Superintendent] decided
to undertake an independent investigation and rested his
decision on statements he found on St. Augustine's website."
Id.
¶21 Judge Ripple further criticized the majority's
approach for taking the term "Catholic" out of context. Id. at
604. He cautioned: "the court's selective use of the term
'Catholic' rests on the assumption that, for purposes of our
Free Exercise analysis, a single term, even when culled from its
context, can describe accurately the religious values and
aspirations of an individual or a group of individuals." Id.
10
No. 2021AP265-CQ
¶22 St. Augustine petitioned for certiorari with the
United States Supreme Court. The Court granted certiorari but
did not issue a full opinion. Instead, it simply vacated the
judgment and remanded to the Seventh Circuit for consideration
in light of its recent decision in Espinoza v. Montana
Department of Revenue, 591 U.S. __, 140 S. Ct. 2246 (2020).6 St.
Augustine Sch. v. Taylor (St. Augustine III), 141 S. Ct. 186
(2020). After remand, the Seventh Circuit certified to this
court the question now before us.
II
¶23 The certified question asks us to interpret Wis. Stat.
§ 121.51. Statutory interpretation is a question of law we
review independently. Winebow, Inc. v. Capitol-Husting Co.,
Inc., 2018 WI 60, ¶23, 381 Wis. 2d 732, 914 N.W.2d 631. We are
not bound by the interpretations of the federal courts, but they
may aid in our analysis. See id. (citation omitted).
¶24 Our review of the statute is informed by the
Constitution and precedent. The application of constitutional
6 In Espinoza, the Court addressed a Montana program that
provides tuition assistance to parents who send their children
to private schools. Espinoza v. Mont. Dep't of Revenue, 591
U.S. __, 140 S. Ct. 2246, 2251 (2020). When the petitioners
sought to use the program for scholarships at religious schools,
the Montana supreme court struck down the program on the basis
of a "no-aid" provision in the Montana Constitution, which
prohibits any aid to a school controlled by a "church, sect, or
denomination." Id. The Court determined that the no-aid
provision violates the Free Exercise clause, writing that "[a]
State need not subsidize private education. But once a State
decides to do so, it cannot disqualify some private schools
solely because they are religious." Id. at 2261.
11
No. 2021AP265-CQ
principles likewise presents a question of law. State v.
Roundtree, 2021 WI 1, ¶12, 395 Wis. 2d 94, 952 N.W.2d 765.
III
¶25 We begin by setting the foundation for our analysis,
detailing the history of this court's interpretation of Wis.
Stat. § 121.51. With that necessary history and context in
hand, we then turn to examine the certified question.
A
¶26 In 1967, the people of Wisconsin adopted a
constitutional provision setting forth: "Nothing in this
constitution shall prohibit the legislature from providing for
the safety and welfare of children by providing for the
transportation of children to and from any parochial or private
school or institution of learning." Wis. Const. art. I, § 23.
Several provisions in ch. 121 of the Wisconsin Statutes
operationalize this guarantee.
¶27 Wisconsin Stat. § 121.54(2)(b) sets forth the
conditions under which a student attending a private school can
receive publicly funded transportation. It provides:
Except as provided in sub. (1) or otherwise provided
in this subsection, the school board of each district
operating high school grades shall provide
transportation to and from the school a pupil attends
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 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.
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No. 2021AP265-CQ
§ 121.54(2)(b)1.
¶28 "Attendance area" is a defined term that sits at the
center of the instant case. Wisconsin Stat. § 121.51(1) defines
"attendance area" as follows:
[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.
¶29 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.
¶30 This court first addressed this language in 1971 in
State ex rel. Vanko v. Kahl, 52 Wis. 2d 206, 188 N.W.2d 460
(1971). In Vanko, the court addressed a constitutional
challenge to the attendance area statute.
¶31 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
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No. 2021AP265-CQ
schools." Id. at 214. This problem would arise because
"[r]eligious affiliation would be the sole basis of the
classification." Id. Accordingly, the court engaged in a
saving construction to avoid the constitutional infirmity,
interpreting the statute to apply to both religious and non-
religious schools: "We read the statute as not authorizing or
permitting overlapping in attendance area boundary lines as to
all private schools affiliated or operated by a single
sponsoring group, whether such school operating agency or
corporation is secular or religious." Id. at 215.
¶32 Building on its decision in Vanko, the court seven
years later decided Holy Trinity Community School, Inc. v. Kahl,
82 Wis. 2d 139, 262 N.W.2d 210 (1978). In Holy Trinity, the
plaintiff school was previously a Catholic school affiliated
with the Archdiocese. It responded to the Vanko decision by
reorganizing as a "community school" with no legal ties to the
Roman Catholic Church or any other religious organization. Id.
at 146. However, the new community school took over all the
employment contracts of the old Catholic school, accepted all
students who attended the school's previous iteration, and
utilized the same building as the old Catholic school, owned by
the Holy Trinity Congregation, which leased the building to the
community school for one dollar annually. Id.
¶33 The community school no longer required Catholic
instruction, but instead instituted a release time for religious
programming of the students' parents' choice. Id. at 146-47.
However, in practice only the Catholic religion was taught
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No. 2021AP265-CQ
during the release time. Id. at 147. Based on these facts, the
Superintendent found that Holy Trinity Community School was
affiliated with the Catholic denomination, even though it was
not controlled by the Archdiocese or the Roman Catholic Church.
Id.
¶34 Pinpointing a constitutional infirmity in the manner
the Superintendent went about making his determination, the Holy
Trinity court concluded:
[W]here a religious school demonstrates by a corporate
charter and bylaws that it is independent of, and
unaffiliated with, a religious denomination, that in
the absence of fraud or collusion the inquiry stops
there. To make the further inquiry, as attempted by
the Superintendent of Public Instruction, is to
involve the state in religious affairs and to make it
the adjudicator of faith.
Id. at 157-58.
¶35 The court explained that the "continuing surveillance
of [the] school to determine whether its practices comport with
those of the Catholic Church" causes an excessive entanglement
of the government in purely religious matters. Id. at 150. It
is not for the government to decide "who or what is Catholic,"
and accordingly the inquiry undertaken by the Superintendent in
Holy Trinity was deemed unconstitutional. Id. The court
continued, discussing the sources of information at play under
the facts of Holy Trinity:
For this court or for the Superintendent of Public
Instruction to determine, in the light of the prima
facie showing of the articles of incorporation to the
contrary, that this school corporation is or is not
affiliated with the Catholic denomination is to meddle
into what is forbidden by the Constitution the
15
No. 2021AP265-CQ
determination of matters of faith and religious
allegiance.
Id. Thus, it concluded that "[w]e are obliged to accept the
professions of the school and to accord them validity without
further inquiry." Id. at 155.
¶36 At the time we granted the certification in this case,
we asked the parties to address a question in addition to that
certified by the Seventh Circuit:
The Free Exercise Clause and the Establishment Clause
of the First Amendment may bear upon our
interpretation of Wis. Stat. § 121.51 and its
inclusion of "private schools affiliated with the same
religious denomination." In meeting the query of the
certified question, should we revisit this court's
decisions in State ex rel. Vanko v. Kahl, 52
Wis. 2d 206, 188 N.W.2d 210 (1971) and Holy Trinity
Community School, Inc. v. Kahl, 82 Wis. 2d 139, 262
N.W.2d 210 (1978) . . . .
¶37 In briefing, no party asked us to overrule either
Vanko or Holy Trinity, and in fact St. Augustine, the
Superintendent, and the School District all affirmatively stated
that we need not and should not overrule or revisit the holdings
of those cases. When pressed at oral argument, the discussion
focused on Vanko, and both parties reiterated their positions
that we not upset that case.7 Accordingly, we decline to
At oral argument, St. Augustine's counsel stated:
7 "Here
today, no one is asking this court to overrule Vanko." See
State ex rel. Vanko v. Kahl, 52 Wis. 2d 206, 188 N.W.2d 460
(1971). Later, the same counsel suggested that Vanko's status
of remaining unchallenged for over 50 years is some indication
that its statutory interpretation has been workable and relied
upon for decades:
(continued)
16
No. 2021AP265-CQ
overrule or revisit either case on our own initiative. See
Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶24, 393
Wis. 2d 38, 946 N.W.2d 35 (explaining that "[w]e do not step out
of our neutral role to develop or construct arguments for
parties; it is up to them to make their case").
B
¶38 With this foundation in hand, we turn now to address
the certified question.
¶39 The Seventh Circuit's certification order puts a fine
point on the issue before us and assists in focusing on the
distinct and narrow question. After summarizing the lengthy
history of this litigation, the Seventh Circuit relates that
"[a]t this juncture . . . the issue has boiled down to one
dispositive question of state law: what methodology for
determining affiliation is required under the relevant Wisconsin
statutes?" St. Augustine Sch. v. Taylor (St. Augustine IV), No.
17-2333 (7th Cir. Feb. 16, 2021) (order certifying question to
Wisconsin Supreme Court) at 2.
[This court] could certainly come to the conclusion
that Vanko is a 50-year-old decision and the fact that
we haven't been before the court for 50 years and are
here only because the [Superintendent] did something
so extraordinary that it resulted in a grant of cert
and a [vacating of the Seventh Circuit's decision] is
some indication that [the statute] is workable given
the reliance that schools and families have had on the
statutory interpretation that sticking to precedent
might be the best thing to do.
Counsel for the Superintendent similarly argued that "the
court got it right in Vanko."
17
No. 2021AP265-CQ
¶40 Prior to proceeding with our analysis, we offer an
observation regarding what is before us and what is not. The
Seventh Circuit has certified to us a pure question of law
pertaining only to the sources of information the Superintendent
may consider in determining whether two schools are "affiliated
with the same religious denomination" for purposes of Wis. Stat.
§ 121.51(1). In essence, it is an inquiry of methodology.
¶41 We do not apply our determination to the facts of this
case. That is, we do not determine whether St. Augustine is
affiliated with the same religious denomination as St. Gabriel.
That is a question for the federal court on remand. With this
clarification, we proceed to our analysis.
¶42 Both the Constitution and our precedent interpreting
the statute provide relevant guardrails around the world of
information a Superintendent may consider. The Constitution
prohibits the excessive entanglement of the state in religious
matters. L.L.N. v. Clauder, 209 Wis. 2d 674, 686, 563
N.W.2d 434 (1997). Such a proposition, known as the
entanglement doctrine, springs from the Establishment Clause of
the First Amendment.8 Id.
¶43 Excessive entanglement occurs "if a court is required
to interpret church law, policies, or practices." Id. at 687.
8The Establishment Clause of the First Amendment provides:
"Congress shall make no law respecting an establishment of
religion . . . ." U.S. Const. amend. I. It is applicable to
the states through the Fourteenth Amendment. L.L.N. v. Clauder,
209 Wis. 2d 674, 686, 563 N.W.2d 434 (1997).
18
No. 2021AP265-CQ
Thus, the First Amendment prohibits such an inquiry. Id. On
the other hand, it is well-settled that "a court may hear an
action if it will involve the consideration of neutral
principles of law." Id. (citations omitted).
¶44 The certified question requires us to determine
whether the consideration of certain matters in the
determination of whether two schools are "affiliated with the
same religious denomination" would rely on an unconstitutional
religious inquiry and thus cause an impermissible excessive
entanglement, or whether such consideration would merely involve
the application of neutral principles of law. We are asked to
address specifically a school's self-identification as set forth
on its publicly available website or in its filings with the
state.
¶45 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.
¶46 Because we refrain from developing arguments not
advanced by either party and determine that our precedent should
be maintained rather than overruled, our inquiry is framed by
Vanko and Holy Trinity. Vanko established that "affiliated with
19
No. 2021AP265-CQ
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." Vanko, 52 Wis. 2d at 215. It further
establishes that the statute applies to both religious and
secular schools "affiliated or operated by a single sponsoring
group." Id.
¶47 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. Holy Trinity, 82 Wis. 2d at 150. 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." Id. at 155.
¶48 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.
¶49 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
20
No. 2021AP265-CQ
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.
¶50 The wording of the certified question implies that
corporate documents represent neutral criteria while a school's
self-identification in sources such as its website and filings
with the state does not. But this appears to be a false
dichotomy. Indeed, simply accepting a school's profession of
what it claims to be or with whom it is affiliated constitutes a
neutral undertaking, as does the acceptance of a school's
professions of affiliation in documents filed with the state.
Here St. Augustine professes that while it is Roman Catholic, it
is independent of and unaffiliated with the Archdiocese.
Neither accepting corporate documents nor accepting a school's
professions necessarily requires any investigation of the type
prohibited by Holy Trinity or even any religious inquiry
whatsoever.
¶51 Our conclusion is further supported with a look to a
related statute. Wisconsin Stat. § 187.01(7) addresses
amendments to the articles of incorporation of a religious
society. It provides in relevant part:
Such corporation may amend its articles of
organization or constitution at a regular meeting of
said corporation by the majority vote of the members
present so that such corporation has the right to
merge with and transfer all of its real estate and
personal property to another corporation of the same
religious denomination.
§ 187.01(7) (emphasis added).
21
No. 2021AP265-CQ
¶52 An important principle can be gleaned from this
statutory text. The phrasing "another corporation of the same
religious denomination" indicates that "religious denomination"
is a broader category than "corporation." In other words, there
can be multiple corporations that fit under the umbrella of a
single religious denomination. If the legislature wanted to
limit the Superintendent's consideration to corporate documents
in an inquiry of whether the schools are affiliated with the
same corporate body, it would not have used the broader term
"religious denomination" in Wis. Stat. § 121.51(1). Indeed, a
single corporate charter may not fully answer whether a school
is affiliated with a religious denomination.
¶53 Vanko also supports such a premise. To explain, 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."
Vanko, 52 Wis. 2d at 215 (emphasis added). Thus, Vanko
explicitly disclaimed an assertion that "operation by a single
agency" is a necessary condition to establish that two schools
are of the same religious denomination. To limit the inquiry to
exclusively corporate documents would elevate this assertion
that the Vanko court rejected.
¶54 However, it is important to keep in mind an additional
principle arising from Vanko——the focus on a "single sponsoring
group." Id. at 215. Although the Superintendent is not limited
to corporate documents exclusively, corporate documents may
22
No. 2021AP265-CQ
often be determinative. Indeed, as Holy Trinity explains,
"where a religious school demonstrates by a corporate charter
and bylaws that it is independent of, and unaffiliated with, a
religious denomination, that in the absence of fraud or
collusion the inquiry stops there." Holy Trinity, 82 Wis. 2d at
157-58. But where corporate documents alone do not resolve the
inquiry, the Superintendent is permitted to consider other
neutral sources of information.
¶55 We thus conclude this methodological inquiry,
determining that in examining 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.
¶56 Accordingly, we answer the certified question and
remand to the United States Court of Appeals for the Seventh
Circuit for further proceedings.
By the Court.—Certified question answered and cause
remanded to the United States Court of Appeals for the Seventh
Circuit.
23
No. 2021AP265-CQ.pdr
¶57 PATIENCE DRAKE ROGGENSACK, J. (concurring). The
question before the Seventh Circuit Court of Appeals is whether
St. Augustine is "affiliated with the same religious
denomination" for purposes of Wis. Stat. § 121.51(1) as is
St. Gabriel, a Catholic school, whom all agree is "affiliated
with" the Archdiocese of Milwaukee. The answer to this question
turns on the meaning of "affiliated with." There is no need to
become involved in a factual examination of the religious
teachings of the private schools that are being compared or the
religious teachings of the organization with which they are
claimed to be affiliated.
¶58 Rather, 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 schools
pursuant to Wis. Stat. § 121.51(1) requires a "mutual
organizational relationship" between St. Augustine and the
religious denomination with which St. Gabriel is affiliated.1
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" from § 121.51(1), 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.
1 Justice Hagedorn's concurrence, ¶¶71, 85.
1
No. 2021AP265-CQ.pdr
I. BACKGROUND
¶59 The historic background underlying the certified
question from the Seventh Circuit Court of Appeals is ably set
out in the majority opinion and in the concurrence of Justice
Hagedorn.2 The certification invited us "to re-formulate" the
certified question, indicating that the Seventh Circuit realized
there may be more that would underlie compliance with their
request than might be apparent in the words chosen for the
certified question.3 In response, we asked the parties to
address First Amendment concerns that may bear on our assisting
the Seventh Circuit in addition to the certified question.
However, no party did so.4
II. DISCUSSION
A. Standard of Review
¶60 The dispositive issue in this case is the meaning of
"affiliated with," as that phrase is used in Wis. Stat.
§ 121.51(1). Statutory interpretation presents a question of
law that we decide independently. State v. Guarnero, 2015 WI
72, ¶12, 363 Wis. 2d 857, 867 N.W.2d 400.
B. Statutory Interpretation
¶61 Our interpretation of the meaning of the phrase,
"affiliated with" in Wis. Stat. § 121.51(1), begins with the
2Majority op., ¶¶7-11; Justice Hagedorn's concurrence,
¶¶76-84.
3St. Augustine Sch. v. Taylor (St. Augustine IV), No. 17-
2333, 6 (7th Cir. Feb. 16, 2021).
4 Majority op., ¶¶37, 38.
2
No. 2021AP265-CQ.pdr
words chosen by the legislature. Spiegelberg v. State, 2006 WI
75, ¶17, 291 Wis. 2d 601, 717 N.W.2d 641. Context also is
important when determining the plain meaning of a statute.
Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶46, 271
Wis. 2d 633, 681 N.W.2d 110.
¶62 Wisconsin Stat. § 121.51(1) provides in relevant part:
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.
(Emphasis added). Affiliated is not a defined term; therefore,
we employ its "common, ordinary and accepted meaning." Kalal,
271 Wis. 2d 633, ¶45.
¶63 We often determine common meanings by consulting a
dictionary. Guarnero, 363 Wis. 2d 857, ¶16. When I do so here,
I note that an "Affiliate [is] an organization that is connected
with or controlled by another, usually larger, organization.
[For example] Our college is an affiliate of the university."
Affiliate, Cambridge Dictionary, dictionary.cambridge.org,
https://dictionary.cambridge.org/dictionary/english/affiliate?q=
Affiliate (last visited June 21, 2021). To be "affiliated with"
requires a mutuality of connection between the "affiliate" and
the entity with which there is an affiliation. That is, to be
affiliated with is "to be officially connected with or
controlled by another." Id. From a common meaning perspective,
one cannot be affiliated with another organization if there is
no mutual connection between the two organizations.
3
No. 2021AP265-CQ.pdr
¶64 "Affiliated with" is a phrase used in decisions that
occur in other contexts, sometimes frequently. For example,
cases involving union activities or union employees may arise
when there is a question about whether workers on a particular
job are affiliated with a particular union, e.g., with the AFL-
CIO, such that picketing can or cannot occur. Upper Lakes
Shipping, Ltd. v. Seafarers' Int'l Union of Canada, 18 Wis. 2d
646, 659, 119 N.W.2d 426 (1963). Workers join a union and the
union accepts their membership when it appears to be to their
mutual benefit to do so. Id.
¶65 In Cape v. Plymouth Congregational Church, 130
Wis. 174, 109 N.W. 928 (1906), we discussed criteria that were
considered in determining whether a congregation had withdrawn
from affiliation with the Primitive Methodist denomination when
the congregation chose to become a Congregational denomination.
Id. at 179. We explained that to be a member of a synodical
organization, "at least two things are essential: A profession
of the accepted faith and a submission to its government." Id.
at 181. We reasoned that because the deed of trust for the land
on which the church building stood said that the church property
was to be used by a Methodist denomination, the Primitive
Methodist congregation could not be excluded from use of the
church facility. Id. at 186. Again, there was a mutuality in
the affiliation between the Primitive Methodist denomination and
Cape et al that was not present with a Congregational
denomination that challenged the Primitive Methodist's right to
use the church building.
4
No. 2021AP265-CQ.pdr
¶66 As Justice Hagedorn notes, the phrase, "affiliated
with," has been used in several statutes.5 One such statute
deals with cemeteries and religious societies that are
affiliated with cemeteries. Wisconsin Stat. § 157.63(6) creates
potential liability for damages for a religious society with
whom a cemetery is affiliated when the cemetery or cemetery
authority fails to comply with statutory requirements.
Section 157.63(6) provides:
The religious society that is affiliated with a
cemetery to which a certification under this section
applies is liable for the damages of any person that
result from the failure of the cemetery or cemetery
authority to fully comply wit s. 157.11(9g) or
157.12(3) during the reporting period under
s. 157.62(2) for which such compliance has been
certified under this section.
The obligations that arise by virtue of § 157.63(6) imply that a
religious society could not be affiliated with a cemetery absent
mutual agreement to affiliate because such an affiliation comes
with obligations that the religious society must meet if the
cemetery does not comply with statutory requirements.
III. CONCLUSION
¶67 In sum, 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
5 Justice Hagedorn's concurrence, ¶¶96, 97.
5
No. 2021AP265-CQ.pdr
connection between the persons and entities that are affiliated.
Therefore, in regard to the case before us, I conclude that
"affiliated with" pursuant to Wis. Stat. § 121.51(1) 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.
¶68 Because the majority opinion does not address the
dispositive legal issue presented by this controversy, I
respectfully concur.
6
No. 2021AP265-CQ.bh
¶69 BRIAN HAGEDORN, J. (concurring). 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 Wis. Stat. § 121.51(1) (2019-20)?1 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.
¶70 In short, to obtain public transportation aid for its
students, a private school in Wisconsin must draw an attendance
area defining the region from which the public school district
must transport its students. Wis. Stat. §§ 121.51(1);
121.54(2)(b)1. And the "attendance areas of private schools
affiliated with the same religious denomination shall not
overlap." § 121.51(1). 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
All subsequent reference to the Wisconsin Statutes are to
1
the 2019-20 version unless otherwise indicated.
1
No. 2021AP265-CQ.bh
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.
¶71 Therefore, Wis. Stat. § 121.51(1) 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.
2
No. 2021AP265-CQ.bh
I. STATUTORY ANALYSIS
¶72 Two statutory provisions work together to provide for
and place limits on the availability of transportation aid for
pupils attending private schools.
¶73 Wisconsin Stat. § 121.54(2)(b)1. provides:
[T]he school board of each district operating high
school grades shall provide transportation to and from
the school a pupil attends 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 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.
This subdivision directs school districts to provide
transportation to K-12 students attending private schools if
four conditions are satisfied: (1) the student lives in the
district; (2) the student lives at least two miles away from the
private school; (3) the student lives within the private
school's "attendance area"; and (4) the private school is
located in or within five miles of the district's boundaries.2
¶74 The third condition is further informed by the
definition of "attendance area" in Wis. Stat. § 121.51(1):
"Attendance area" is the geographic area designated by
the governing body of a private school as the area
from which its pupils attend and approved by the
A school district has several options to satisfy its
2
obligation under Wis. Stat. § 121.54(2)(b)1., including by
providing transportation for a pupil directly or by compensating
the pupil's parent or guardian for the pupil's transportation
costs. Wis. Stat. § 121.55(1).
3
No. 2021AP265-CQ.bh
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.
(Emphasis added.) The dispute in this case concerns the
restriction on overlapping attendance areas for "private schools
affiliated with the same religious denomination."3 Id. Unless
the statute's exception for sex-specific schools applies,
schools affiliated with the same religious denomination must
have mutually exclusive attendance areas.
¶75 Wisconsin Stat. §§ 121.51 and 121.54 have entitled
students attending private schools to transportation aid for
more than fifty years. See generally §§ 33-40, ch. 313, Laws of
1967. How these statutes came to be informs their meaning, so
we begin there.4
3The dissent aptly characterizes this provision as the
"overlapping attendance area" provision, a label employed in
this concurrence as well. See dissent, ¶110.
4"By analyzing the changes the legislature has made over
the course of several years, we may be assisted in arriving at
the meaning of a statute." Richards v. Badger Mut. Ins. Co.,
2008 WI 52, ¶22, 309 Wis. 2d 541, 749 N.W.2d 581. An inquiry
into statutory history is part and parcel of a plain meaning
analysis. Fabick v. Evers, 2021 WI 28, ¶30 n.12, 396
Wis. 2d 231, 956 N.W.2d 856.
4
No. 2021AP265-CQ.bh
A. Historical Context
¶76 In 1968, the legislature enacted Wis. Stat.
§ 121.54(2)(b), directing school districts to provide students
attending private schools transportation directly to their
schools.5 § 40, ch. 313, Laws of 1967. As initially enacted,
§ 121.54(2)(b) did not prohibit overlapping attendance areas, or
even use the phrase "attendance area." Instead, in addition to
the other three conditions still found in the statute, a
district was obligated to provide transportation to a private
school only "if such private school [was] the nearest available
private school which the pupil may reasonably choose to attend."
Wis. Stat. § 121.54(2)(b)1.-2. (1967-68).
¶77 This "may reasonably choose to attend" language proved
problematic almost immediately, and in short order became the
focus of litigation before this court. See State ex rel.
Knudsen v. Bd. of Educ., Elmbrook Schs., Joint Common Sch. Dist.
5This was not the legislature's first attempt to provide
public transportation aid to private school students. In 1962,
the legislature passed a law entitling students attending
private schools to receive free school transportation. Ch. 648,
Laws of 1961. We struck down this law before it went into
effect for violating Article I, Section 18 of the Wisconsin
Constitution "which prohibits the expenditure of any public
funds 'for the benefit of religious societies, or religious or
theological seminaries.'" State ex rel. Reynolds v. Nusbaum, 17
Wis. 2d 148, 165-66, 115 N.W.2d 761 (1962) (quoting Wis. Const.
art. I, § 18). In response to that decision, the people
ratified Article I, Section 23 of the Wisconsin Constitution in
April 1967, providing: "Nothing in this constitution shall
prohibit the legislature from providing for the safety and
welfare of children by providing for the transportation of
children to and from any parochial or private school or
institutions of learning." Wis. Const. art. I, § 23.
5
No. 2021AP265-CQ.bh
No. 21, 43 Wis. 2d 58, 168 N.W.2d 295 (1969). The Knudsen case
arose when a school district established "service areas"
defining which of the four Catholic schools students from each
geographic area of the district could reasonably choose to
attend. Id. at 62-63. A parent in the district requested and
was denied transportation for his daughter to attend a Catholic
high school that did not correspond to his daughter's district-
assigned service area. Id. at 63. The parent sought a writ of
mandamus to compel the district to provide transportation to his
daughter's preferred Catholic school. Id. at 64. We held that
the statute gave the pupil the choice of which school to attend,
but added that deciding "whether that choice is reasonable is to
be determined in the discretion of the school board." Id. at
65. And the school board's exercise of its discretion required
"a weighing of conflicting factors which may very well vary in
accordance with the subjective needs of the student and the
particular problems of the school district." Id. at 66.
¶78 Less than three months later, the legislature
responded to our Knudsen decision by amending Wis. Stat.
§ 121.54(2)(b) and creating Wis. Stat. § 121.51(1). §§ 304c,
304j, ch. 154, Laws of 1969. The new law replaced the "may
reasonably choose to attend" language with the "attendance area"
provision and definition described above. Id. In adopting this
change, the legislature retained the "service areas" concept,
but assigned the task of drawing what it now termed "attendance
areas" to the private schools themselves, subject to the
6
No. 2021AP265-CQ.bh
overlapping attendance area provision and the school board's
approval.
¶79 In the decade following Knudsen and the 1969
amendment, we decided two cases that applied Wis. Stat.
§ 121.51(1)'s overlapping attendance area provision: State ex
rel. Vanko v. Kahl, 52 Wis. 2d 206, 188 N.W.2d 460 (1971), and
Holy Trinity Comm. Sch., Inc. v. Kahl, 82 Wis. 2d 139, 262
N.W.2d 210 (1978).
¶80 Vanko involved an original action petition, filed
shortly after the 1969 amendment, seeking a declaration that
Wis. Stat. § 121.51(1)'s restriction on overlapping "attendance
areas of private schools affiliated with the same religious
denomination" was unconstitutional. Id. at 210. In our
decision, we acknowledged that the most natural reading of the
provision likely rendered it unconstitutional because it imposed
a restriction on private religious schools and not on private
secular schools. Id. at 213-14. However, the Vanko court
devised a construction of the statute to avoid the
constitutional infirmity, reading "the statute as not
authorizing or permitting overlapping in attendance area
boundary lines as to all private schools affiliated or operated
by a single sponsoring group, whether such school operating
agency or corporation is secular or religious." Id. at 215.
¶81 Dissenting, Chief Justice Hallows objected that under
the majority's reading, "the plain language 'the same religious
denomination' now becomes a single operating group and
'religious' is read out of the classification." Id. at 218
7
No. 2021AP265-CQ.bh
(Hallows, C.J., dissenting). In so doing, the court gave "a
construction to these statutes beyond the breaking point
and . . . construed them to mean exactly the opposite of what
the legislature plainly said and intended."6 Id. at 217
(Hallows, C.J., dissenting).
¶82 The second case to interpret the overlapping
attendance area provision involved a challenge to the
superintendent's conclusion that a particular school was
unaffiliated with the Roman Catholic denomination. Holy
Trinity, 82 Wis. 2d at 141. Following our decision in Vanko,
Holy Trinity School, which until then had been operated by a
Roman Catholic congregation, dissolved itself, and a new school
named Holy Trinity Community School incorporated. Id. at 145-
46. The newly incorporated school featured the same students,
teachers, and buildings as the prior Holy Trinity School.
Id. at 146. But, as its corporate documents explained, Holy
Trinity Community School was officially an independent school,
6Chief Justice Hallows' critique, echoed by the dissent in
today's decision, rings loudly. See dissent, ¶¶112-16.
However, even if Vanko was wrongly decided, none of the parties
in this case ask us to revisit Vanko despite our invitation to
address this question. I do not disagree with the dissent's
contention that it is improper in some circumstances to accept
unchallenged precedent as an analytical starting point. See
dissent, ¶¶103-04. But while I too would welcome an opportunity
to revisit Vanko for many of the reasons well-stated in the
dissent, we do not need to do so to answer the question the
Seventh Circuit asked us. Our answer to the certified question
does not prevent a future reconsideration of this line of cases.
We answer a narrow state law question to assist the Seventh
Circuit in addressing the factual and constitutional questions
properly addressed to their judgment, not ours.
8
No. 2021AP265-CQ.bh
having "no legal ties to the Roman Catholic church" and,
according to its bylaws, having "no affiliation with any
religious denomination." Id. at 146. The superintendent
challenged Holy Trinity Community School's claim, "contend[ing]
that the mere separation of the school, as a legal entity, from
the Catholic Church, of which it was previously a part, is
insufficient to show that it is no longer affiliated with that
denomination." Id. at 147-48.
¶83 We unanimously rejected the superintendent's argument,
explaining that the First Amendment forbade the superintendent
from "determin[ing] the denominational allegiance of the
institution" based on it's "inspection and surveillance of the
school." Id. at 149. Rather, we accorded "facial validity to
the charter and bylaws," and observed that the school "expressly
disavow[ed] affiliation with any church denomination." Id. at
154. "[T]o inquire further," we said, "impinges on the
religious right of citizens to make their own declaration in
respect to their religious affiliation." Id. The First
Amendment obligated us "to accept the professions of the school
and to accord them validity without further inquiry."7 Id. at
155. Holy Trinity Community School was therefore "a private
school, independent of any religious denomination; and,
We noted just one exception, explaining that "courts
7
reserve the right to look behind such decisions where there is
evidence of fraud or collusion." Holy Trinity Comm. Sch., Inc.
v. Kahl, 82 Wis. 2d 139, 155, 262 N.W.2d 210 (1978). If fraud
were "alleged and proved, we would look behind a representation
which on its face purported to demonstrate a complete lack of
denominational affiliation." Id.
9
No. 2021AP265-CQ.bh
accordingly, as a matter of law it [was] entitled to a district-
wide attendance area." Id.
¶84 Neither Vanko nor Holy Trinity conducted a full
statutory analysis of what the overlapping attendance area
provision means when it says "private schools affiliated with
the same religious denomination."8 See Wis. Stat. § 121.51(1).
Vanko's statutory interpretation, such as it was, was limited to
reading "same religious denomination" as functionally analogous
to "single sponsoring group"; it said nothing about how
affiliation occurs. 52 Wis. 2d at 215. And Holy Trinity relied
primarily on the Constitution to reverse the superintendent's
decision. 82 Wis. 2d at 154-55. It didn't say much about what
a "religious denomination" is or what it means for a school to
affiliate with one. The majority in this case limits its
analysis to the types of evidence that could be relevant to
affiliation, similarly declining a thoroughgoing analysis of the
words of the statute. Majority op., ¶¶5, 40, 55. In my view,
the statutory language clarifies how a court should employ the
methodology articulated in the majority opinion, and provides
the necessary context for our answer to the Seventh Circuit's
certified question.
8 Wisconsin Stat. §§ 121.51(1) and 121.54(2)(b) have
undergone slight revisions since Vanko and Holy Trinity, but no
changes since then affect our interpretation of the overlapping
attendance area provision.
10
No. 2021AP265-CQ.bh
B. Analyzing the Text
¶85 A proper interpretation of "affiliated with the same
religious denomination" requires a deeper dive into the meaning
of two phrases: "religious denomination" and "affiliated with."
Wis. Stat. § 121.51(1). As we shall see, schools are
"affiliated with the same religious denomination" when a mutual
organizational relationship exists between the schools and the
same religious denomination.
1. Religious Denomination
¶86 "Religious denomination" is not a defined phrase in
our statutes. Nevertheless, related statutes reveal that when a
statute says "religious denomination," it is not referring to a
religious faith generally, but to a particular kind of religious
organization.9
¶87 Apart from Wis. Stat. § 121.51(1), 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. See generally Wis. Stat. §§ 187.01-.09.
See State ex rel. Zignego v. WEC, 2021 WI 32, ¶16 & n.9,
9
396 Wis. 2d 391, 957 N.W.2d 208 (illustrating that technical
terms and phrases in the statutes need not always be statutorily
defined); see also Wis. Stat. § 990.01(1) ("[T]echnical words
and phrases and others that have a peculiar meaning in the law
shall be construed according to such meaning.").
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¶88 Wisconsin Stat. § 187.05 is especially noteworthy
because it explains how organizations other than churches,
including denominations, can take on a corporate form. It
explains that a "body of authorized representatives of any
church or religious denomination . . . may elect any number of
trustees, not less than three, to be incorporated."
§ 187.05(1). Then, it provides that "[a]ny denominational body
mentioned in sub. (1) . . . at any stated meeting may vote to
become a corporation and designate any of its members of adult
age, not less than 10 in number, to make, acknowledge and file
with the department of financial institutions a certificate"
containing its pertinent corporate details. § 187.05(3)(a).
Next, the section explains that a denomination that has taken
corporate form "shall have the power and privileges and exercise
the rights and be subject to the obligations imposed upon
corporations organized under general law." § 187.05(3)(c). And
finally, a denomination may own property and reorganize itself
if it so chooses. § 187.05(3)(b), (d). All of these
demonstrate that a "religious denomination" is a type of
religious organization, not a generic reference to people with a
kindred faith.
¶89 Further, Wis. Stat. § 187.08 provides that if a
religious society belonging to a religious denomination in this
state is dissolved, "the title to such real estate so owned by
such defunct society shall be vested in such corporation of the
same religious denomination next higher in authority in such
denomination." Beyond property acquisition, this section
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demonstrates that a religious denomination can have a
relationship with other organizational entities, here religious
societies, such that the denomination and religious societies
form something resembling a corporate structure with parent and
subsidiary corporations. This type of structure reveals that a
religious denomination under Wisconsin law is a kind of
organization, not a reference to a group's religious faith.
¶90 Statutes outside Chapter 187 paint the same picture.
Wisconsin Stat. § 182.030, for example, explains that a
corporation "connected with[] any church or religious
denomination or society" may provide in its articles of
organization "that it shall be under the supervision and control
of such church, denomination, or society." It is an organized
body that would supervise and control a corporation. Likewise,
Wis. Stat. § 101.05(4)(b) provides a tax exemption for school
buildings that are, among other things, "operated by and for
members of a bona fide religious denomination." This assumes
religious denominations can operate a school——something an
organization, and not a religious faith, is capable of.
¶91 The statutes also use the phrase "religious
denomination" when referring to entities that ordain or accredit
individuals in certain fields. Wisconsin Stat. § 765.16(1m)(a),
for example, authorizes an "ordained member of the clergy of any
religious denomination" to officiate a marriage. Wisconsin
Stat. § 455.02(2m)(i) creates a psychology licensing exemption
for "[a]n ordained member of the clergy of any religious
denomination." And Wis. Stat. § 979.01(1)(g), which outlines
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circumstances under which a death must be reported, references
an "accredited practitioner of a bona fide religious
denomination relying on prayer or spiritual means for healing."
A religious faith cannot ordain or accredit individuals as these
sections contemplate; instead, there must be an organization
that carries out those functions.
¶92 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.'"
Majority op., ¶52. 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 Wis. Stat. § 121.51(1) 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.10
10This organizational understanding of "religious
denomination" is also consistent with Vanko's construction of
Wis. Stat. §§ 121.51 and 121.54(2)(b). Regardless of whether it
was correct to do so, its decision to read "same religious
denomination" synonymously with "single sponsoring group" is
telling. See State ex rel. Vanko v. Kahl, 52 Wis. 2d 206, 215,
188 N.W.2d 460 (1971). If "the same religious denomination"
meant nothing more than a common religious faith, our use of the
"single sponsoring group" terminology would be nonsensical. A
denomination that shares even an identical religious faith with
an entirely independent private school is not a "single
(continued)
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2. Affiliated With
¶93 Like "religious denomination," the phrase "affiliated
with" is not expressly defined in the statutes. But statutory
context reveals that it contemplates a mutual relationship
between two organizations.11
¶94 As an initial matter, a proper characterization of
"religious denomination" centers and circumscribes the
permissible readings of "affiliated with" in Wis. Stat.
§ 121.51(1). 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
sponsoring group" for that school. Religious faiths cannot
sponsor schools, but religious organizations can. The Vanko
court explained that a "single sponsoring group" is a "school
operating agency or corporation." Id. A religious faith is
neither an agency nor a corporation; a religious denomination
can take on corporate form.
Although Holy Trinity focused primarily on the
Constitution, it also agreed with the organizational
understanding of "religious denomination." Summarizing Vanko,
the Holy Trinity court explained that "the effect of the statute
was to prohibit overlapping attendance districts in respect
to . . . religious schools affiliated or operated by a single
sponsoring group or denomination." 82 Wis. 2d at 145.
Because it is not a technically or specially defined
11
phrase, we give "affiliated with" its "common, ordinary, and
accepted meaning." State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
15
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whom and with which organizations it chooses to associate. On
this basis alone, the most reasonable reading of "affiliated
with" in Wis. Stat. § 121.51(1) requires some mutual
relationship between the private school and the religious
denomination, whereby both agree to be affiliated.
¶95 The history that prompted the enactment of the
overlapping attendance area provision supports this reading.
After the Knudsen decision gave districts discretion to decide
which private school a student could "reasonably choose to
attend," the legislature immediately amended the statute to
shift that discretion to the private schools in the first
instance, subject to districts' approval. Supra, ¶10. But the
legislature nevertheless directed private schools with the same
denominational affiliation to draw non-overlapping attendance
areas. The most reasonable inference from this statutory
history is that by adding the overlapping attendance area
provision, the legislature contemplated that the drawing of non-
overlapping attendance areas is something that could be
facilitated by the religious denomination——or in the words of
Vanko, a single sponsoring group. It makes no sense to read the
statute as asking separate organizations with no relationship
(other than perhaps shared religious convictions) to draw
limited attendance areas together. "[A]ffiliated with" must
contemplate a mutual relationship between two organizations that
agree to associate with one another.12
12Our opinion in Vanko understood this in its focus on the
"single sponsoring group" terminology. 52 Wis. 2d at 215. A
(continued)
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¶96 Context from other statutes confirms this. Most
notably, Chapter 157, which regulates cemeteries, routinely
contains separate provisions for cemeteries that are "affiliated
with a religious association."
Wis. Stat. § 157.07(6) provides that certain platting
requirements do "not apply to . . . a cemetery authority of
a cemetery that is affiliated with a religious
association."
Wis. Stat. § 157.08(5) governs conveyances of cemetery lots
but partially exempts cemeteries that are "affiliated with
a religious association" from its reach.
Wis. Stat. § 157.11(10) governs improvement and care of
cemetery lots but partially exempts cemeteries that are
"affiliated with a religious association."
Wis. Stat. § 157.63(6) holds a "religious society that is
affiliated with a cemetery" liable for damages "that result
from the failure of the cemetery" to comply with certain
statutory requirements.
Wis. Stat. § 157.635 permits cemeteries "affiliated with a
religious association" to limit who may be buried in a
cemetery.
Wis. Stat. § 157.637 forbids cemeteries, other than
cemeteries "organized and operated by, or affiliated with,
a religious association" from forbidding veteran burials.
single group sponsoring a school necessarily describes a mutual
tie between two organizations that choose to be connected.
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It would turn the cemetery statutes on their head if any
cemetery could self-affiliate with a religious association,
especially Wis. Stat. § 157.63(6)'s provision extending
liability to the religious organization the cemetery chose to
affiliate with. Quite clearly then, Chapter 157 uses
"affiliated with" to contemplate a mutual relationship between
cemeteries and religious associations.
¶97 Similarly, Wis. Stat. § 628.92(5)(b) requires
navigators "not affiliated with an entity" to furnish a bond.
Surely a navigator cannot avoid a bond requirement simply by
self-affiliating with another entity. Likewise, Wis. Stat.
§ 16.99(3p) defines a "public museum" as "a nonprofit or
publicly owned museum located in this state that is accredited
by the American Association of Museums or an educational center
that is affiliated with such a museum." Could an educational
center merely self-affiliate with an accredited museum to
satisfy this definition? Certainly not.
¶98 So too in Wis. Stat. § 121.51(1). When the
overlapping attendance area provision says "affiliated with the
same religious denomination," it means that there must be a
mutual relationship that ties the private school and the
religious denomination together.13 Both entities must choose to
affiliate with each other; neither can unilaterally self-
Adding additional research from our cases and reference
13
to dictionary definitions, Justice Roggensack's concurrence
agrees that a mutual organizational relationship is the most
reasonable interpretation of the statutory language. Justice
Roggensack's concurrence, ¶¶61-67.
18
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affiliate with the other.14 This statutory inquiry is not a
question of theological symmetry, but of organizational
connection.
II. THE CERTIFIED QUESTION
¶99 With this statutory background, the answer to the
Seventh Circuit's question comes into fuller view. The Seventh
Circuit asks whether the Superintendent must "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." As the majority observes, however,
depending on what is meant by a "school's self-identification,"
this question may present "a false dichotomy." Majority op.,
¶50.
¶100 The Superintendent certainly must rely "exclusively on
neutral criteria" to demonstrate a school's affiliation with a
religious denomination. The statute's aim is neutral
(organizational connection). And as we held in Holy Trinity,
the Constitution provides further limits. Although "ownership,
To the extent the majority opinion discusses "the
14
professions of the school with regard to the school's self-
identification and affiliation," majority op., ¶¶5, 55, I
understand it to be discussing the school's self-identification
about its mutual affiliation with a religious denomination. A
school may not unilaterally self-affiliate with a denomination,
but its statements professing to be affiliated with a
denomination may be evidence of a mutual organizational
relationship between it and the religious denomination it
professes to be affiliated with.
19
No. 2021AP265-CQ.bh
control, and articles of incorporation" are examples of neutral
criteria (and often may be determinative), other types of
evidence might permissibly be considered. For example, a
school's profession on its website that it is an unaffiliated
religious school would constitute evidence that the school
shares no mutual organizational relationship with a religious
denomination.15
¶101 Therefore, 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.
15The parties in this case do not disagree on whether
statements on a website may be relevant. They do disagree on
what kind of statements may be relevant and how they may be
used.
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¶102 REBECCA GRASSL BRADLEY, J. (dissenting). "[A] law
repugnant to the constitution is void." Marbury v. Madison, 5
U.S. (1 Cranch) 137, 180 (1803). Wisconsin Stat. § 121.51(1) is
repugnant to the Constitution and therefore void. In answering
the certified question, this court should say so. Fifty years
ago in State ex rel. Vanko v. Kahl, 52 Wis. 2d 206, 188
N.W.2d 460 (1971), 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. As proclaimed over 160
years ago, "[w]e sit here to decide the law as we find it, and
not as the parties or others may have supposed it to be." Ross
v. Bd. of Outagamie Cnty. Supervisors, 12 Wis. 26, 44 (1860)
(Dixon, C.J., dissenting).
¶103 The Wisconsin Supreme Court serves a law-development
function. State ex rel. Wis. Senate v. Thompson, 144
Wis. 2d 429, 436, 424 N.W.2d 385 (1988) ("[I]t is this court's
function to develop and clarify the law."). "In a legal system
in which appellate opinions not only establish the meaning of
1
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law, but do so through precedent that binds future litigants,
courts cannot cede to the parties control over legal analysis."
Amanda Frost, The Limits of Advocacy, 59 Duke L.J. 447, 453
(2009). In this case, the majority does a great disservice to
the people of Wisconsin by letting three parties control the law
for an entire state.
¶104 The logical implications of the majority's reasoning
are concerning, if not absurd. In future cases, will the court
refuse to follow binding precedent if no party cites it?
Presumably, "[n]o one would argue that a court is free to ignore
a binding precedent simply because the parties fail to cite it."
Id. at 494. But if we cannot reconsider our own precedent
because the parties didn't ask us to do so, the majority's
reasoning would also preclude us from considering any case the
parties didn't mention. What if a case has been cited, perhaps
even by both parties, but we disagree with their reading of it?
Are we now obligated to read our own prior decisions through the
lenses of partisan litigants?
¶105 The majority's aberrantly restrictive vision of our
role consigns the state's highest court to selecting winners and
losers in litigation contests rather than declaring the law.
However, "courts do not simply resolve disputes between parties;
they are also responsible for making pronouncements of law that
are binding on all who come after. When the parties fail to
raise relevant legal claims and arguments——whether by error or
through conscious choice——judges must do so themselves to avoid
issuing inaccurate or incomplete statements of law." Id. at
2
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447. Doing so does not abandon our neutral role; it embraces
it, while serving as "an essential means of protecting the
judiciary's role in the constitutional structure." Id. at 452.
¶106 Read in conjunction with Wis. Stat. § 121.54(2)(b),
Wis. Stat. § 121.51(1) precludes public school districts from
providing transportation to students who attend a private school
if the school district decides that the school is "affiliated
with the same religious denomination" as another private school
within the same geographic attendance area whose students
already receive such transportation. On its face, the statute
imposes a restriction on the receipt of public benefits
applicable only to religious schools. Recognizing the
constitutional infirmities of this statutory scheme, the Vanko
court impermissibly excised the phrase "religious denomination"
from the statute by applying § 121.51(1)'s overlapping-
attendance-area exclusion to religious and secular schools
alike.
¶107 Prioritizing the parties' collective preference to
preserve the statute over our duty to faithfully interpret the
law as written, the majority declines to revisit the Vanko
court's mangling of the statute. However, "[t]he principle of
stare decisis does not compel us to adhere to erroneous
precedent or refuse to correct our own mistakes." State v.
Outagamie Cnty. Bd. of Adjustment, 2001 WI 78, ¶31, 244
Wis. 2d 613, 628 N.W.2d 376. Regardless of the particular
interests of the parties in perpetuating Vanko's improper
reworking of the statute, our duty to the Constitution is
3
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primary. "We do more damage to the rule of law by obstinately
refusing to admit errors, thereby perpetuating injustice, than
by overturning an erroneous decision." Johnson Controls, Inc.
v. Employers Ins. of Wausau, 2003 WI 108, ¶100, 264 Wis. 2d 60,
665 N.W.2d 257 (internal citations omitted).
¶108 Had the majority confronted Vanko's errors, it would
have necessarily concluded that Wis. Stat. § 121.51(1) is
unconstitutional under the First Amendment to the United States
Constitution. It is the duty of this court "to say what the law
is," Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶50, 382
Wis. 2d 496, 914 N.W.2d 21 (quoting Marbury, 5 U.S. at 177), to
"faithfully give effect to the laws enacted by the legislature"
by applying the plain language of a statute, State ex rel. Kalal
v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633,
681 N.W.2d 110, and to ensure those enacted laws are in
conformity with our Constitution. This court in Vanko violated
each of these responsibilities. The majority in this case
repeats the error. I respectfully dissent.
I. Vanko should be overruled because the court
rewrote Wis. Stat. § 121.51(1).
¶109 In the interests of the "safety and welfare of
children," the Wisconsin Constitution allows the legislature to
"provid[e] for the transportation of children to and from any
parochial or private school or institution of learning." Wis.
Const. art. I, § 23. Following the adoption of this
constitutional provision in 1967, the legislature enacted Wis.
Stat. § 121.54(2)(b), which provides in relevant part:
4
No. 2021AP265-CQ.rgb
[T]he school board of each district operating high
school grades shall provide transportation to and from
the school a pupil attends 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 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.
(Emphasis added.) Under this law, school districts must provide
students with transportation to and from private schools, so
long as certain criteria are met.1 Specifically, the student
must reside at least two miles from the school and within that
school's "attendance area," and the private school must be
within five miles of the school district's boundaries. In turn,
the State provides aid to the school district at specified rates
depending upon the location of students transported by the
district. See Wis. Stat. § 121.58(2).
¶110 Wisconsin Stat. § 121.51(1) defines "attendance area"
as "the 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." Any disagreement over the scope of
the "attendance area" must be resolved by the state
superintendent of public instruction (SPI): "[i]f the private
school and the school cannot agree on [an] attendance area, the
state superintendent shall, upon the request of the private
1Wisconsin Stat. § 121.55 prescribes methods of
transportation.
5
No. 2021AP265-CQ.rgb
school and the board, make a final determination of the
attendance area." § 121.51(1). As particularly relevant to the
certified question before this court, § 121.51(1) also mandates
a limitation applicable only to religious schools: "[t]he
attendance areas of private schools affiliated with the same
religious denomination shall not overlap."2 (Emphasis added.)
(hereinafter the "overlapping attendance area" provision).
¶111 Reading Wis. Stat. § 121.51(1) in conjunction with
Wis. Stat. § 121.54(2)(b), the provision prohibiting overlapping
attendance areas requires school districts to deny
transportation to students who attend a private school
"affiliated with the same religious denomination" as another
private school within the same geographic attendance area whose
students already receive transportation. In other words, if two
religious schools belong to the same "religious denomination"——a
term statutorily undefined and subject to the interpretation of
the SPI——students attending one of the religious schools are
denied transportation, regardless of their distance from the
school. The Constitution prohibits such faith-based
discrimination in conferring public benefits.
¶112 Soon after this statute's enactment, religious schools
and parents of children attending them challenged the
constitutionality of the provision prohibiting overlapping
attendance areas of private schools "affiliated with the same
This mandate is subject to an exception involving single-
2
sex schools which is not pertinent to the matter before the
court. Wis. Stat. § 121.51(1).
6
No. 2021AP265-CQ.rgb
religious denomination." Instead of confronting its glaring
unconstitutionality, the Vanko court rewrote Wis. Stat.
§ 121.51(1) in order to cure its "apparent constitutional
infirmity." Vanko, 52 Wis. 2d at 214. Although § 121.51(1)
plainly prohibits overlapping attendance areas of only those
schools "affiliated with the same religious denomination," the
Vanko court "read the statute as not authorizing or permitting
overlapping in attendance area boundary lines as to all private
schools affiliated or operated by a single sponsoring group,
whether such school operating agency or corporation is secular
or religious." Id. at 215 (emphases added). To support its
"reading" of § 121.51(1), 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." Id. at 214. 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." Id. at 215.
7
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¶113 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[.]" Id. at 217 (Hallows, C.J., dissenting). 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." Id.
at 218. 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." Id. at 219. If the "overlapping
attendance area" provision is to apply to religious and secular
schools alike, "the legislature must say so." Id.
¶114 Although Vanko is irreconcilable with the plain
language of Wis. Stat. § 121.51(1),3 a majority of this court
At the time of the Vanko
3 decision, the "overlapping
attendance area" provision was codified in Wis. Stat.
§ 121.51(4).
8
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nevertheless sustains its erroneous holding.4 Because Vanko's
construction of § 121.51(1) is unmoored from the statutory text,
it should be overruled. An invention of the Vanko court, the
phrase "single sponsoring group" is nowhere to be found in the
statute. Nor does the statutory text apply the "overlapping
attendance area" restriction to secular schools. Only students
attending private schools "affiliated with the same religious
denomination" as another private school within the same
geographic attendance area are denied a public benefit——solely
on account of their school's religious affiliation.
¶115 In arriving at its holding, the Vanko court trampled
over fundamental principles of statutory interpretation, under
which we are supposed to "'begin with the language of the
statute,'" and when the "meaning of the statute is plain, we
ordinarily stop the inquiry." Kalal, 271 Wis. 2d 633, ¶45
(quoted source omitted). We give statutory language "its common
ordinary, and accepted meaning," id., and we should never "read
into the statute words the legislature did not see fit to
write." Dawson v. Town of Jackson, 2011 WI 77, ¶42, 336
The majority also errs in upholding Holy Trinity Cmty.
4
Sch., Inc. v. Kahl, 82 Wis. 2d 139, 262 N.W.2d 210 (1978). In
that case, this court refined its decision in Vanko to prescribe
how the SPI should ascertain whether a religious private school
is affiliated with a "sponsoring group." In relevant part, Holy
Trinity held that "where a religious school demonstrates by a
corporate charter and bylaws that it is independent of, and
unaffiliated with, a religious denomination, that in the absence
of fraud or collusion the inquiry stops there." Holy Trinity,
82 Wis. 2d at 157-58. Because Holy Trinity rests upon the
faulty foundation laid by Vanko, it too should be overturned.
9
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Wis. 2d 318, 801 N.W.2d 316. "It is not up to the courts to
rewrite the plain words of statutes," State v. Wiedmeyer, 2016
WI App 46, ¶13, 370 Wis. 2d 187, 881 N.W.2d 805, nor can a court
"add words to a statute to give it a certain meaning." State v.
Neill, 2020 WI 15, ¶23, 390 Wis. 2d 248, 938 N.W.2d 521 (quoted
source omitted). "[R]ather, we interpret the words the
legislature actually enacted into law." State v. Fitzgerald,
2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d 165. If the law
offends the Constitution, we are duty-bound to say so.
¶116 The Vanko court began with the language of the
statute, acknowledged its "constitutional infirmity," and
committed a cavalcade of errors in order to avoid employing the
only appropriate judicial remedy——striking the statute.
Discarding its obvious meaning, the Vanko court invoked "the
purpose of the transportation statute" and declared that a
"classification solely on the basis of religious sponsorship
would not be germane or reasonably related to the purpose of the
statute"——so it deleted it. Through the court's legislative
handiwork, the phrase "same religious denomination" became
"single sponsoring group." In order to absolve the legislature
of an unconstitutional act, the court committed its own,
arrogating to itself the power to make law.
¶117 Writing laws resides within the exclusive domain of
the legislature, into which judges may not tread. "Like its
federal counterpart, '[o]ur state constitution . . . created
three branches of government, each with distinct functions and
powers,' and '[t]he separation of powers doctrine is implicit in
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this tripartite division.'" Gabler v. Crime Victims Rights Bd.,
2017 WI 67, ¶11, 376 Wis. 2d 147, 897 N.W.2d 384 (quoted source
omitted; alterations and ellipsis in original). "Three clauses
of the Wisconsin Constitution embody this separation: Article
IV, Section 1 ('[t]he legislative power shall be vested in a
senate and assembly'); Article V, Section 1 ('[t]he executive
power shall be vested in a governor'); and Article VII, Section
2 ('[t]he judicial power . . . shall be vested in a unified
court system')." Gabler, 376 Wis. 2d 147, ¶11 (alterations and
ellipsis in original). "The separation of powers 'operates in a
general way to confine legislative powers to the legislature.'"
League of Women Voters v. Evers, 2019 WI 75, ¶35, 387
Wis. 2d 511, 929 N.W.2d 209 (quoting Goodland v. Zimmerman, 243
Wis. 2d 459, 467, 10 N.W.2d 180 (1943)).
¶118 "Each branch's core powers reflect 'zones of authority
constitutionally established for each branch of government upon
which any other branch of government is prohibited from
intruding. As to these areas of authority, . . . any exercise
of authority by another branch of government is
unconstitutional.'" Gabler, 376 Wis. 2d 147, ¶31 (quoting State
ex rel. Fiedler v. Wisconsin Senate, 155 Wis. 2d 94, 100, 454
N.W.2d 770 (1990) (ellipsis in original)). "It is 'the province
and duty of the judicial department to say what the law is[,]'
and not what we think it should be." Town of Wilson v. City of
Sheboygan, 2020 WI 16, ¶51, 390 Wis. 2d 266, 938 N.W.2d 493
(Rebecca Grassl Bradley, J., concurring) (quoting Marbury, 5
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U.S. at 177). "This court lacks any authority to modify, tweak
or supplement the legislature's work." Id.
¶119 In addition to invading the exclusive province of the
legislature, the Vanko court violated multiple foundational
principles underlying the plain-meaning method of statutory
interpretation, which this court adopted long before the Vanko
decision. See, e.g., W. Side Bank v. Marine Nat. Exch. Bank, 37
Wis. 2d 661, 669-70, 155 N.W.2d 587 (1968) ("It is not within
the province of this Court to seek secondary sources of
legislative intent where the meaning of the statute is plain and
unambiguous."); Folschow v. Werner, 51 Wis. 85, 7 N.W. 911
(1881) (applying the "plain meaning" of a statute to determine
whether a creditor can reach the defendant's pension). In
addition to transgressing the constitutional boundaries of the
judicial role, the methodology employed by the Vanko court in
order to reach a statute-saving outcome contravened basic
principles of statutory interpretation.
¶120 The Vanko court was transparent in justifying its
reconstruction of the statute: doing so "save[d] the statute
from being struck down as unconstitutional." Vanko, 52
Wis. 2d at 215. Although not named by the Vanko court, this
principle is known as the constitutional doubt canon of
statutory construction. The Vanko court misused it. Properly
applied, the constitutional doubt canon counsels that "[a]
statute should be interpreted in a way that avoids placing its
constitutionality in doubt." Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 241 (2012). It
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may be employed only "where a statute is susceptible of two
constructions." Id. (quoting United States ex rel. Attorney
General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909) (per
White, J.)). This court recently expressed the operation of the
canon in terms of reasonableness: "where we can reasonably
adopt a saving construction of a statute to avoid a
constitutional conflict, we do so." State v. Hager, 2018 WI 40,
¶31, 381 Wis. 2d 74, 911 N.W.2d 17. Contrary to the Vanko
court's application of the canon, simply "avoid[ing] . . . a
constitutional conflict does not drive our reading of the
statute." Id. Instead, the constitutional doubt canon "is a
tool for choosing between competing plausible interpretations of
a statutory text, resting on the reasonable presumption that
[the legislature] did not intend the alternative which raises
serious constitutional doubts." Clark v. Martinez, 543 U.S.
371, 381 (2005) (emphases added).
¶121 There is nothing "reasonable" nor "plausible" about
the Vanko court's construction of Wis. Stat. § 121.51(1). The
constitutional doubt canon is not a license to rewrite a
statute, either to better effectuate its purpose or to conform
it to the Constitution. Nor does it authorize a court to insert
new words into the text or remove words from it. "We cannot
press statutory construction 'to the point of disingenuous
evasion' even to avoid a constitutional question." United
States v. Locke, 471 U.S. 84, 96 (1985). Nor can we employ the
constitutional doubt canon when the text of the statute is
plain. See Pennsylvania DOC v. Yeskey, 524 U.S. 206, 212
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(1998). Although courts "will often strain to construe
legislation so as to save it against constitutional attack, it
must not and will not carry this to the point of perverting the
purpose of a statute . . . or judicially rewriting it."
Aptheker v. Sec'y of State, 378 U.S. 500, 515 (1964) (quoted
source omitted). The Vanko court bent the language of
§ 121.51(1) to the point of changing its meaning. Secular
schools cannot be classified by "religious denomination"
notwithstanding the Vanko decision's lexical distortions. It
should be overturned.
¶122 In perpetuating the judicial malfeasance Vanko
embodies, the majority "determine[s] that our precedent should
be maintained rather than overruled," implicitly relying on the
doctrine of stare decisis. Majority op., ¶46. "While adhering
to precedent is an important doctrine for lending stability to
the law, not every decision deserves stare decisis effect.
After all, the purpose of stare decisis 'is to make us say that
what is false under proper analysis must nonetheless be held to
be true, all in the interest of stability.'" State v.
Grandberry, 2018 WI 29, ¶86, 380 Wis. 2d 541, 910 N.W.2d 214
(Rebecca Grassl Bradley, J., dissenting) (quoting Antonin
Scalia, A Matter of Interpretation: Federal Court and the Law
138-40 (1997)). As the state's highest court, we are not
"'constrained to follow precedent' that is 'unworkable or badly
reasoned,' because stare decisis 'is a principle of policy and
not a mechanical formula of adherence to the latest decisions.'"
Outagamie Cnty. Bd. of Adjustment, 244 Wis. 2d 613, ¶31 (quoting
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Payne v. Tennessee, 501 U.S. 808, 827-28 (1991)) (internal
alterations omitted).
¶123 "Reflexively cloaking every judicial opinion with the
adornment of stare decisis threatens the rule of law,
particularly when applied to interpretations wholly unsupported
by the statute's text." Manitowoc Co., Inc. v. Lanning, 2018 WI
6, ¶81 n.5, 379 Wis. 2d 189, 906 N.W.2d 130 (Rebecca Grassl
Bradley, J., concurring). The Vanko court's construction of
"religious denomination" to mean "single sponsoring group" is
"wholly unsupported by the statute's text" and represents a
revision rather than an interpretation of law. "In evaluating
whether to persist in upholding a decision that elevated
judicially-imagined legislative purpose over the words the
legislature actually enacted, '[i]t is well to keep in mind just
how thoroughly [the court's opinion] rewrote the statute it
purported to construe.'" Id. (quoting Johnson v. Transp.
Agency, 480 U.S. 616, 670 (1987) (Scalia, J., dissenting)).
Because the Vanko court entirely rewrote the "overlapping
attendance area" provision of Wis. Stat. § 121.51(1), the
majority errs in upholding it.
¶124 In Johnson Controls, this court enumerated factors
justifying a decision to overturn precedent. See Johnson
Controls, 264 Wis. 2d 60, ¶¶98-99. When a prior case is
"unsound in principle" or "wrongly decided," it should be
overturned. Id., ¶99; see also Bartholomew v. Wisconsin
Patients Comp. Fund & Compcare Health Servs. Ins. Corp., 2006 WI
91, ¶33, 293 Wis. 2d 38, 717 N.W.2d 216. A judicial decision
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like Vanko, which "blatantly disregarded the text of the []
statute," is "both 'unsound in principle' and 'wrongly
decided,'" and should be overruled. Town of Wilson, 390
Wis. 2d 266, ¶63 (Rebecca Grassl Bradley, J., concurring).
Doing so would advance the rule of law:
This court has no apprehension about being a solitary
beacon in the law if our position is based on a sound
application of this state's jurisprudence. But when
our light is dim and fading, then this court must be
prepared to make correction. Stare decisis is neither
a straightjacket nor an immutable rule. We do more
damage to the rule of law by obstinately refusing to
admit errors, thereby perpetuating injustice, than by
overturning an erroneous decision.
Johnson Controls, 264 Wis. 2d 60, ¶100 (internal citations
omitted).
¶125 The majority's refusal to correct Vanko's irrefutably
erroneous interpretation of the law "does not comport with our
duty [to exercise our constitutionally-vested 'judicial power']
because it elevates demonstrably erroneous decisions——meaning
decisions outside the realm of permissible interpretation——over
the text of . . . duly enacted . . . law." Gamble v. United
States, 139 S. Ct. 1960, 1981 (2019) (Thomas, J., concurring).
"[J]udicial decisions may incorrectly interpret the law, and
when they do, subsequent courts must confront the question when
to depart from them." Id. at 1984. The Vanko court not only
incorrectly interpreted Wis. Stat. § 121.51(1), it also usurped
the legislative function by rewriting the statute. It is this
court's duty to say so. "Besides eternalizing bad law,
sustaining judicial rewriting of statutes sanctions judicial
usurpation of the legislative function." Town of Wilson, 390
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Wis. 2d 266, ¶52 (Rebecca Grassl Bradley, J., concurring). This
court should overturn the "demonstrably erroneous decision" it
made in Vanko.
II. The "overlapping attendance area" provision in Wis.
Stat. § 121.51(1) is unconstitutional.
¶126 Overturning Vanko's reconstruction of the statute
necessitates a consideration of its constitutionality, which the
Vanko court avoided by expanding the "overlapping attendance
area" restriction in Wis. Stat. § 121.51(1) to encompass not
only religious schools but secular ones as well. On its face,
§ 121.51(1) denies a public benefit only to students attending
religious schools in overlapping attendance areas. Private but
secular schools located in overlapping attendance areas are not
disqualified from receiving benefits on this basis. Denying an
otherwise publicly available benefit on account of religious
identity violates the First Amendment to the United States
Constitution.
¶127 As it pertains to religion, the First Amendment says
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof." U.S.
Const. amend. I. As recently interpreted by the United States
Supreme Court in Trinity Lutheran Church of Columbia, Inc. v.
Comer, 137 S. Ct. 2012 (2017), and Espinoza v. Montana Dep't of
Rev., 140 S. Ct. 2246 (2020), the Free Exercise Clause of the
First Amendment prohibits the government from denying a public
benefit solely on the basis of religious identity.
Consequently, the "overlapping attendance area" provision must
be struck from Wis. Stat. § 121.51(1).
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¶128 The Free Exercise Clause, which applies to the states
by operation of the Fourteenth Amendment,5 provides that
"Congress shall make no law . . . prohibiting the free exercise
[of religion]." U.S. Const. amend. I. "The Free Exercise
Clause 'protect[s] religious observers against unequal
treatment' and subjects to the strictest scrutiny laws that
target the religious for 'special disabilities' based on their
'religious status.'" Trinity Lutheran Church, 137 S. Ct. at
2019 (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
U.S. 520, 533 (1993)). "Applying that basic principle, [the
United States Supreme Court] has repeatedly confirmed that
denying a generally available benefit solely on account of
religious identity imposes a penalty on the free exercise of
religion that can be justified only by a state interest 'of the
highest order.'" Id. (quoted source omitted).
¶129 In Trinity Lutheran Church, the United States Supreme
Court scrutinized a program under which the Missouri Department
of Natural Resources provided grants to help public and private
schools, as well as nonprofit organizations, purchase rubber
playground surfaces. Id. at 2017. The Department "had a strict
and express policy of denying grants to any applicant owned or
controlled by a church, sect, or other religious entity." Id.
Applying this policy, the Department denied a grant application
by Trinity Lutheran Church Child Learning Center——a preschool
5See Cantwell v. Connecticut, 310 U.S. 296 (1940) (holding
that the First Amendment's Free Exercise Clause is incorporated
against the states via the Fourteenth Amendment).
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and daycare——solely on the basis that it was operated by a
church. Id. at 2017-18.
¶130 The United States Supreme Court held that the
Department's policy violated Trinity Lutheran's rights under the
Free Exercise Clause. Id. at 2019. The Court explained that
the State unconstitutionally "puts Trinity Lutheran to a choice:
It may participate in an otherwise available benefit program or
remain a religious institution." Id. at 2021-22. According to
the Court, the State cannot "expressly require[] Trinity
Lutheran to renounce its religious character in order to
participate in an otherwise generally available public benefit
program, for which it is fully qualified." Id. at 2024.
"[W]hen the State conditions a benefit in this way, McDaniel
says plainly that the State has punished the free exercise of
religion: 'To condition the availability of benefits . . . upon
[a recipient's] willingness . . . to surrender[] his religiously
impelled [status] effectively penalizes the free exercise of his
constitutional liberties.'" Id. at 2022 (quoting McDaniel v.
Paty, 435 U.S. 618, 626 (1978)). Choosing between "a government
benefit program" and "having to disavow [one's] religious
character" does not comport with the First Amendment's
protection of the free exercise of religion. Id.
¶131 Just last year, the United States Supreme Court
reaffirmed these principles in Espinoza. The Court held that
the Free Exercise Clause precluded Montana from striking down a
law establishing a scholarship program for private schools on
the basis of a state constitutional provision prohibiting the
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state from giving public aid to any school controlled by a
"church, sect, or denomination." Espinoza, 140 S. Ct. at 2251-
52. The Court held that the application of Montana's "no-aid
provision" to the scholarship program violated the First
Amendment by "bar[ring] religious schools from public benefits
solely because of the religious character of the schools" as
well as by "bar[ring] parents who wish to send their children to
religious schools from those same benefits, again solely because
of the religious character of the schools"——a fact "apparent
from the plain text" of the no-aid provision. Id. at 2255.
Applying Trinity Lutheran Church, the Court subjected the
state's application of the no-aid provision to the "strictest
scrutiny" and determined that Montana failed to advance any
"interest of the highest order" by disqualifying religious
schools and the children who attend them from receiving the
benefits of a scholarship program solely because of their faith.
Id. at 2260.
¶132 As United States Supreme Court precedent confirms, the
Free Exercise Clause prohibits Wisconsin from denying otherwise
generally available transportation benefits to students
attending a private school "affiliated with the same religious
denomination" as another private school within the same
geographic attendance area. Because the plain text of the
"overlapping attendance area" provision in Wis. Stat.
§ 121.51(1) applies only to religious schools, the statute
violates the First Amendment. "The Free Exercise Clause
'protects religious observers against unequal treatment' and
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against 'laws that impose special disabilities on the basis of
religious status.'" Espinoza, 140 S. Ct. at 2254 (quoting
Trinity Lutheran Church, 582 U.S. at 2021).
¶133 Trinity Lutheran Church is clear: "denying a
generally available benefit solely on account of religious
identity imposes a penalty on the free exercise of religion that
can be justified only by a state interest 'of the highest
order.'" Trinity Lutheran Church, 137 S. Ct. at 2019 (quoted
source omitted). The State rationalizes Wis. Stat.
§ 121.51(1)'s discrimination against religious schools as
"set[ting] parameters" for a religiously-affiliated school's
attendance area in order to avoid straining a "school
district[']s . . . limited funds." The United States Supreme
Court already rejected this sort of justification for religious
discrimination: "A State need not subsidize private education.
But once a State decides to do so, it cannot disqualify some
private schools solely because they are religious." Espinoza,
140 S. Ct. at 2261. If the financial cost of transporting
students to school trumps our right to remain free from "unequal
treatment" based upon our religious identity, then the Free
Exercise Clause would have little meaning.
¶134 Like Missouri's policy of "categorically
disqualifying" religious organizations from receiving grants
under its playground resurfacing program in Trinity Lutheran
Church, Wisconsin's "overlapping attendance area" provision puts
schools "to a choice: [they] may participate in an otherwise
available benefit program or remain a religious institution."
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Trinity Lutheran Church, 137 S. Ct. at 2021-22. Under Wis.
Stat. § 121.51(1), if a school overlaps with another private
religious institution of "the same religious denomination," that
school, and its students, may either renounce their religious
affiliation or lose their right to state-provided transportation
benefits. The First Amendment does not permit the government to
"punish[] the free exercise of religion" in this manner.
Espinoza, 140 S. Ct. at 2256 (quoted source omitted). The
Constitution does not countenance a religious school being
forced to either forgo a "government benefit program" or
"disavow its religious character." Trinity Lutheran Church, 137
S. Ct. at 2022; see Espinoza, 140 S. Ct. at 2261.
III. Wisconsin Stat. § 121.51 impermissibly entangles the
government in the affairs of religious schools.
¶135 Declaring the overlapping attendance area provision
unconstitutional, as this court should have done 50 years ago
when first presented with the issue, would have been dispositive
of this matter. Instead, the majority persists in preserving an
unconstitutional law, necessitating a response to the certified
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?
Whether applying a faithful interpretation of the statutory text
or Vanko's reconstruction of the statute, there is no way to
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answer this question without requiring the SPI to violate the
Establishment Clause of the First Amendment.
¶136 In this case, the SPI must decide whether a self-
described Roman Catholic school is "affiliated with the same
religious denomination" as the Roman Catholic Archdiocese of
Milwaukee, notwithstanding the school's professions of both
corporate and theological independence from the Archdiocese.
The inevitable litigation ensuing from a determination by the
SPI that results in the denial of public benefits based upon
overlapping attendance areas between religious schools will
require judges to engage in the same inquiry concerning the
religious character of schools. The Establishment Clause of the
First Amendment does not permit such entanglement between church
and state.
¶137 The Establishment Clause provides that "Congress shall
make no law respecting an establishment of religion." U.S.
Const. amend. I. In interpreting this provision, the United
States Supreme Court has held that "[a] statute must not foster
'an excessive entanglement with religion.'" Lemon v. Kurtzman,
403 U.S. 602, 613 (1971). Wisconsin Statute § 121.51(1) not
only fosters an excessive entanglement with religion, it compels
it. Under the statute, the SPI is charged with conducting a
comparative analysis to determine whether two schools belong to
the same "religious denomination"——an exercise unavoidably
requiring the government to interpret the nature of a particular
faith. Discerning whether one religious school is "affiliated
with the same religious denomination" as another forces the SPI
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as well as the courts to delve into the meaning of "religious
denomination" and what it means to be "affiliated" with one.
However, it is not for the government to determine the "proper
interpretation of [one's] faith." United States v. Lee, 455
U.S. 252, 257 (1982). Indeed, "[t]he prospect of church and
state litigating in court about what does or does not have
religious meaning touches the very core of the constitutional
guarantee against religious establishment[.]" New York v.
Cathedral Acad., 434 U.S. 125, 133 (1977).
¶138 Where, exactly, is the SPI expected to draw the line?
What is a "religious denomination"? What characteristics,
professions of faith, or doctrinal tenets render a religious
institution part of a particular denomination? The statute
doesn't tell us, and it would be unconstitutional for any state
actor, including a court, to resolve the question. As the
United States Supreme Court recognized decades ago,
"[i]ntrafaith differences . . . are not uncommon among followers
of a particular creed, and the judicial process is singularly
ill equipped to resolve such difference in relation to the
Religion Clauses." Thomas v. Rev. Bd. of Indiana Emp. Sec.
Div., 450 U.S. 707, 715 (1981). It is not for the government to
determine, for example, whether a Roman Catholic school and a
Ukrainian Catholic school are "affiliated with the same
religious denomination" within the meaning of Wis. Stat.
§ 121.51(1) or otherwise. "[A] single term" like "Catholic"
cannot "describe accurately the religious values and aspirations
of an individual or a group of individuals. Labels work very
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well for identifying commodities in a supermarket, but they are
ill fitted for protecting the religious liberty of an individual
American." St. Augustine v. Evers, 906 F.3d 591, 604 (7th Cir.
2018) (Ripple, J., dissenting).
¶139 Any governmental overriding of a religious school's
profession of independence from the "religious denomination" of
another school——whether made by the SPI or a court——would
"require us to rule that some religious adherents misunderstand
their own religious beliefs. We think such an approach cannot
be squared with the Constitution or with our precedents, and
that it would cast the Judiciary in a role that [courts] were
never intended to play." Lyng v. Nw. Indian Cemetery Protective
Ass'n, 485 U.S. 439, 458 (1988). The government lacks both
constitutional authority and institutional competence to make
these determinations.
¶140 The majority does not address the entanglement problem
presented by Wis. Stat. § 121.51 but mistakenly denies one
exists at all. The majority says: "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." Majority op., ¶5. The majority maintains that
"accepting a school's professions that are published on its
public website or set forth in filings with the state does not
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necessarily require any investigation or surveillance into the
practices of the school. It need not require any religious
inquiry at all." Majority op., ¶48. The majority is wrong.
¶141 As formulated by the majority, the SPI's inquiry
focuses on whether "a school is affiliated with a specific
religious denomination," which obviously poses a question of a
religious nature. The majority's declaration that the SPI's
determination of whether schools are "affiliated with the same
religious denomination" does not require any religious inquiry
"at all" reflects a manner of Orwellian newspeak by which
"religious" means something other than "religious." The only
way for a Catholic school like St. Augustine to avoid a
governmentally-decreed affiliation with the same "denomination"
as another Catholic school is for St. Augustine to disavow its
Catholic character.
¶142 Aside from the entanglement problem produced by the
majority's decision, it offers little assistance to the Seventh
Circuit in resolving this dispute. The majority notes that "St.
Augustine professes that while it is Roman Catholic, it is
independent of and unaffiliated with the Archdiocese." Majority
op., ¶50. The majority then proclaims that "[n]either accepting
corporate documents nor accepting a school's professions
necessarily requires any investigation of the type prohibited by
Holy Trinity or even any religious inquiry whatsoever." Id.
The majority misunderstands the heart of this dispute. Although
St. Augustine's corporate documents reveal no affiliation with
the Archdiocese and St. Augustine explicitly disclaimed any
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affiliation with any other Catholic school or The Archdiocese of
Milwaukee in its letters to Friess Lake School District and the
SPI, it professes on its website to be "Roman Catholic," which
prompted the SPI to declare St. Augustine affiliated with the
Archdiocese by virtue of their mutual Roman Catholic
identification. That is a determination derived from a
religious inquiry prohibited by the Establishment Clause.
Regardless, the majority supplies no rule to resolve whether a
school's corporate documents, website content, or professions of
corporate and ecclesiastical independence controls the question
of affiliation with a particular denomination.
¶143 The majority should have restricted the inquiry to
purely secular sources such as corporate documents, leaving
religious labels and alliances beyond consideration, but instead
directs the Seventh Circuit to apply Wis. Stat. § 121.51(1) in a
manner which impermissibly entangles the courts in matters of
religion. The very precedent on which the majority relies
prohibits this: "For this court or for the Superintendent of
Public Instruction to determine, in the light of the prima facie
showing of the articles of incorporation to the contrary, that
this school corporation is or is not affiliated with the
Catholic denomination is to meddle into what is forbidden by the
Constitution the determination of matters of faith and religious
allegiance." Holy Trinity Cmty. Sch., Inc. v. Kahl, 82
Wis. 2d 139, 150, 262 N.W.2d 210 (1978). "[T]he determination
of who or what is Catholic . . . is an inquiry that government
cannot make." Id. at 150-51.
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¶144 Because the "overlapping attendance area" provision
violates both the Free Exercise and Establishment Clauses of the
First Amendment, it must be struck from Wis. Stat. § 121.51(1).
United States Supreme Court precedent interpreting the Religion
Clauses "radiates a spirit of freedom of religious
organizations, an independence of secular control or
manipulation——in short, power to decide for themselves, free
from state interference, matters of church government as well as
those of faith and doctrine." Hosanna-Tabor Evangelical
Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 186 (2012)
(quoted source omitted). Within the context of this case, the
Constitution reserves decisions of religious affiliation for
private schools themselves, and the State may not force private
schools or their students to "choose between their religious
beliefs and receiving a government benefit." Trinity Lutheran
Church, 137 S. Ct. at 2023 (quoted source omitted).
* * *
¶145 "The true irony of our modern stare decisis doctrine
lies in the fact that proponents of stare decisis tend to invoke
it most fervently when the precedent at issue is least
defensible." Gamble, 139 S. Ct. at 1988 (Thomas, J.,
concurring). 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
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excluding religious schools and the students who attend them
from a government benefit solely on the basis of their religion.
"An odious exclusion from any of the benefits common to the rest
of my fellow-citizens, is a persecution, differing only in
degree, but of a nature equally unjustifiable with that, whose
instruments are chains and torture." Trinity Lutheran Church,
137 S. Ct. at 2024 (quoting Speech by H.M. Brackenridge, Dec.
Sess. 1818, in H. Brackenridge, W. Worthington, & J. Tyson,
Speeches in the House of Delegates of Maryland, 64 (1829)).
Repeating its error from 50 years ago, this court once again
neglects its duty to strike an unconstitutional statute. I
respectfully dissent.
¶146 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER joins this dissent.
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