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St Joan Antida High School Inc. v. Milwaukee Public School District

United States District Court, E.D. Wisconsin

February 28, 2018

ST. JOAN ANTIDA HIGH SCHOOL, INC., Plaintiff,
v.
MILWAUKEE PUBLIC SCHOOL DISTRICT, Defendant.

          ORDER

          J. P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         This is a case about student busing. The defendant, Milwaukee Public School District (“MPS”), provides busing to qualifying public and private school students in the city of Milwaukee. The plaintiff, St. Joan Antida High School (“SJA”), a private school in Milwaukee, contends that MPS' student transportation policy treats MPS public school students differently and more favorably than it treats similarly-situated private school students.

         SJA filed its complaint on March 21, 2017, alleging that MPS has violated its rights and the rights of its students under the Equal Protection Clause of the Fourteenth Amendment. (Docket #1). SJA also alleged a claim against MPS under a Wisconsin state law, Wis.Stat. § 121.54, which commands school districts in Wisconsin to transport public and private school students with reasonable uniformity. Id.

         The parties filed cross motions for summary judgment, and those motions are now fully briefed and ripe for adjudication. (Docket #16-27, 30- 35, 37, 41).[1] For the reasons explained below, MPS' motion for summary judgment will be granted, SJA's motion for summary judgment will be denied, and this action will be dismissed.[2]

         2. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 56 states that the “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A “genuine” dispute of material fact is created when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes all facts and reasonable inferences in a light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). In assessing the parties' proposed facts, the Court must not weigh the evidence or determine witness credibility; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010).

         3. FACTUAL BACKGROUND

         The parties agree that there are no genuine issues of material fact and that this case can be resolved on summary judgment. See (Docket #32, #37, and #39 at 1).[3] Before turning to the parties' dispute, though, the Court must begin with a primer on the state law and municipal policy that underlie it.

         3.1 Wisconsin Student Transportation Law

         Prior to 1967, Wisconsin did not permit public school districts to provide transportation for children attending parochial or private schools. Cartwright v. Sharpe, 162 N.W.2d 5, 8 (Wis. 1968). In 1967, by virtue of the mandate of a state-wide referendum, the Wisconsin constitution was amended to provide that “[n]othing 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.

         Pursuant to authority provided by that constitutional amendment, the Wisconsin legislature amended the state's student transportation law to provide “transportation for students attending private or parochial schools and public schools upon a reasonably uniform basis.” Cartwright, 162 N.W.2d at 8. Under that law, school boards must provide free transportation to elementary and high school students who reside two or more miles from their school, public or private. Wis.Stat. § 121.54(2); see also St. John Vianney Sch. v. Bd. of Educ. of Sch. Dist. of Janesville, 336 N.W.2d 387, 390 (Wis. Ct. App. 1983).

         The major exceptions to this law apply to cities. For example, a school board need not provide transportation to students in certain large cities, as defined by the statute, if transportation is otherwise available through a common carrier of passengers. Wis.Stat. § 121.54(1). In that case, the city school board may nonetheless elect to provide transportation under the so-called “city option.” Id. Under the city option, “there shall be reasonable uniformity in the transportation furnished such pupils whether they attend public or private schools.” Id.

         3.2 MPS Student Transportation Policy

         MPS has exercised the city option, meaning it can determine its own transportation policies, but must provide transportation with reasonable uniformity to students of public and private schools. MPS, through its Board of Directors, has created a policy for student transportation services, set forth in MPS Administrative Policy 4.04 (“Policy 4.04”).[4] Policy 4.04, in relevant part, directs that transportation will be provided to Milwaukee-resident students as follows:

         (2) CONDITIONS OF DISTANCE

         (a) To and from Public Schools within the City

3. If the student is enrolled in grade 9 through grade 12, and the residence is two miles or more from the district school and more than one mile walking distance from public transportation.
(b) To and from Private Schools Located within the City or Located Not More Than Five Miles beyond the Boundaries of the City, As Measured along the Usually Traveled Route


2. If the student is enrolled in grade 9 through grade 12, and the residence is two miles or more from the private school and more than one mile walking distance from public transportation;
3. If the student resides within the designated attendance area of the private school. (Attendance area is the geographic area designated by the governing body of a private school and approved by the Board as the area from which its students attend. The attendance areas of private schools affiliated with the same religious denomination may not overlap.);
4. If the private school submits the names, grade levels, and locations of eligible students no later than the third Friday of September; and
5. According to the transportation schedule prepared by the Milwaukee Public Schools.

         MPS Administrative Policy 4.04(2).

         As to the deadline for private schools to submit a roster of students who will require busing for the coming school year, the parties agree that, in practice, the deadline is actually July 1. (Docket #32 at 4-5 and #37 at 9). Only those students on the roster submitted by the private school receive busing if otherwise eligible. MPS does not apply a roster deadline for students attending MPS schools.

         In a subsequent section, the policy prescribes rules for transportation of students who attend MPS schools other than the schools to which they would otherwise be assigned based on their residences (their attendance-district, or “neighborhood, ” schools) in order to take advantage of programs offered at select MPS schools or to avoid problems such as overcrowding and racial imbalance at their neighborhood schools. Id. at 4.04(5). This section provides, in relevant part:

(5) RACIAL BALANCE, MODERNIZATION, OVERLOAD, AND LACK OF FACILITY


(a) City-Wide Schools


2. Secondary. Transportation service shall be provided to the public secondary school students whose residences are two miles or more walking distance ...

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