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

United States Court of Appeals, Seventh Circuit

March 25, 2019

St. Joan Antida High School Inc., Plaintiff-Appellant,
v.
Milwaukee Public School District, Defendant-Appellee.

          Argued September 18, 2018

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:17-cv-00413-JPS - J.P. Stadtmueller, Judge.

          Before Sykes, Barrett, and St. Eve, Circuit Judges.

          ST. EVE, CIRCUIT JUDGE.

         There have been several constitutional challenges to school busing in Wisconsin over the years. See, e.g., St. Augustine Sch. v. Evers, 906 F.3d 591 (7th Cir. 2018); Racine Charter One, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677 (7th Cir. 2005). This is another. Our focus here is on the Milwaukee Public School District ("MPS"), private schools, and the Equal Protection Clause.

         MPS offers free transportation to public-school students who attend certain schools outside of their neighborhoods. All other students-including private-school students-are only eligible if they live farther than one mile from the nearest public-transportation stop. MPS also requires private schools to submit a roster of students who need transportation by July 1; it has no such requirement for its public schools. St. Joan Antida High School, a private school, filed this lawsuit, claiming that these restrictions violate the Equal Protection Clause. This is especially so, St. Joan submits, because state law requires MPS to transport students with "reasonable uniformity," whether they attend public or private schools.

         The district court granted summary judgment to MPS, and St. Joan appeals. We affirm in part and reverse and remand in part. Rational bases exist for the differences in busing eligibility, and so we affirm on that ground. But more work needs to be done to resolve St. Joan's challenge to the July 1 deadline, and so we reverse and remand on that ground.

         I. Background

         Busing parochial schoolchildren with public funding used to be considered unconstitutional in Wisconsin. See State ex rel. Reynolds v. Nusbaum, 115 N.W.2d 761, 770 (Wis. 1962). In 1967, however, the state held a referendum, which asked voters whether Wisconsin's constitution should be amended to permit state-funded transportation of private and parochial students. The voters decided it should, and the Wisconsin constitution was amended. Wis. Const, art. I, § 23; see also Cartwright v. Sharpe, 162 N.W.2d 5, 8 (1968).

         After the amendment, Wisconsin passed enabling legislation that requires school districts to provide transportation for both public- and private-school students. See Wis. Stat. § 121.54. There are exceptions, though. The most notable (for our purposes) is the exception for a school district operating within a metropolitan area. Under § 121.54's "city option/' a school district in a city need not-but can decide to-provide transportation if other public transportation is generally available to schoolchildren. Id. § 121.54(1). Should a school district exercise the city option, there must "be reasonable uniformity in the transportation furnished to pupils, whether they attend public or private schools." Id. § l2l.54(1)(b) (emphasis added).

         MPS has exercised the city option, and it therefore offers transportation to Milwaukee-area schools. There are two primary types of public schools in the MPS system: (1) city wide schools, which offer special courses, like language-immersion classes or International Baccalaureate® programs, and draw from the entire Milwaukee area; and (2) attendance-area schools, which generally do not have such programs and draw only from a particular neighborhood. MPS, at times, designates certain students to attendance-area schools outside of their neighborhoods-making the school a "nonattendance-area school" (as we will call it, for ease of reference). The Milwaukee area, of course, also has private schools, like St. Joan. MPS explains that, under state rules, St. Joan technically has an attendance area; but unlike public attendance-area schools, St. Joan's allotted area is the entire city of Milwaukee.

         To ensure transportation to these schools, MPS devised Policy 4.04. This lawsuit challenges two parts of that policy.

         The first challenge concerns how MPS decides which students are eligible for busing. Under § 2 of Policy 4.04, high schoolers may receive free transportation only if they live two or more miles from their school and "more than one mile walking distance from public transportation" (a restriction we will call the "one-mile rule").[1] But § 5 provides more generous transportation benefits for high schoolers who attend either citywide or nonattendance-area schools. That section, which is titled "Racial Balance, Modernization, Overload, and Lack of Facility," makes any student assigned to a school farther than two miles from her home eligible for free transportation-regardless of the student's proximity to public transportation. In fewer words, citywide and nonattendance-area students are not subject to the one-mile rule under § 5.

         The second challenge is to MPS's roster-notification deadline. Under § l2l.54(2)(b), private schools must submit the names, grade levels, and residences of all students who are eligible to receive busing to MPS by May 15. The provision allows a school board to "extend the notification deadline," which MPS has done. Policy 4.04 states that private schools must submit the roster by the third Friday in September. In practice, however, the parties agree that MPS requires the rosters by July 1. According to MPS, the deadline is necessary so that it has sufficient time to arrange for the transportation of eligible private-school students before school starts. There is no like roster-notification deadline for public schools, MPS says, because it has immediate access to the requisite information needed for eligible public-school students.

         In 2016, St. Joan applied to MPS for student transportation during the upcoming 2016-2017 school year. On May 14, 2016, St. Joan submitted its original roster, which included the names of sixty-two students relevant to this appeal; on September 29, 2016, it updated the list with six more relevant names. What prompted St. Joan to update its roster is unclear, but MPS refused to bus any of these sixty-eight students. Each of them lived within one mile of public transportation, and the six later-added students were disclosed after the July 1 deadline. St. Joan protested, but eventually covered transportation for the students. Doing so cost a total of $178, 640 for the 2016-2017 and 2017-2018 school years.

         Looking to recover that loss, St. Joan brought this action, which also seeks injunctive and declaratory relief. St. Joan asserts two claims. The first claim alleges that Policy 4.04's two restrictions-the one-mile rule and the July 1 deadline-violate the Equal Protection Clause of the Fourteenth Amendment. See 42 U.S.C. § 1983. The second claim, brought under Wis.Stat. § 121.54, asserts that the restrictions violate Wisconsin's reasonable uniformity requirement.[2] After discovery, the parties cross-moved for summary judgment. The district court granted MPS's motion and denied St. Joan's, reasoning that Policy 4.04's two restrictions had rational bases. 293 F.Supp.3d 813 (E.D. Wis. 2018). With the constitutional claim dismissed, the district court declined to exercise supplemental jurisdiction over St. Joan's state-law claim. 28 U.S.C. § 1367(c)(3). St. Joan appeals.

         II. Discussion

         The Equal Protection Clause of the Fourteenth Amendment guarantees that "no State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const, amend. XIV, § 1. This is "essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Although the Equal Protection Clause does not endow a private right of action, 42 U.S.C. § 1983 does for any constitutional deprivation under color of state law. A municipal entity acting under color of state law-like MPS-may be held liable under § 1983 where it is responsible for the constitutional deprivation. Monell v. Dep't of Soc. Sews, of City of New York, 436 U.S. 658, 694-695 (1978).

         On appeal, St. Joan contends that the one-mile rule and the July 1 deadline violate the Equal Protection Clause. We first determine how searching our inquiry must be-under either strict-scrutiny or rational-basis review-before determining whether the restrictions pass constitutional muster. Because this case comes to us after summary judgment, our review is de novo. Dunn v. Menard, Inc., 880 F.3d 899, 905 (7th Cir. 2018). We can affirm on any ground supported by the record. Terry v. Gary Cmty. Sch. Corp., 910 F.3d 1000, 1004 (7th Cir. 2018).

         A. Standard of Scrutiny

         An equal-protection claim merits strict scrutiny, our most exacting inquiry, only if the state-crafted classification disadvantages a suspect class or "impermissibly interferes" with a fundamental right. Segovia v. United States, 880 F.3d 384, 390 (7th Cir. 2018). Otherwise rational-basis review governs.[3] See Armour v. City of Indianapolis, Ind., 566 U.S. 673, 680 (2012); Hooper v. Bernalillo Cty. Assessor, 472 U.S. 612, 618 (1985). This case does not involve a suspect class, like race, and neither education nor free transportation to school is a fundamental right. Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 457-62 (1988); Plyler v. Doe, 457 U.S. 202, 223 (1982); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33-35 (1973); Racine Charter One, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677, 690 n.4 (7th Cir. 2005).

         St. Joan, however, invokes another fundamental right- the right of parents to direct the education of their children. That right does exist. In Pierce v. Soc'y of the Sisters, the Supreme Court struck down a ban on parochial education and held that the "fundamental theory of liberty" protects parents from state attempts to "forc[e]" students into public schooling. 268 U.S. 510, 535 (1925); see also Troxel v. Granville, 530 U.S. 57, 65 (2000). But the existence of that fundamental right, and its potential implication here, is not enough to trigger strict scrutiny. See, e.g., Harlan v. Scholz, 866 F.3d 754, 760 (7th Cir. 2017). A direct and substantial interference is required. See Lyng v. Castillo, 477 U.S. 635, 638 (1986); Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); Zablocki v. Redhail, 434 U.S. 374, 386-87 & n.12 (1978); see also Griffin High Sch. v. Illinois High Sch. Ass'n, 822 F.2d 671 (7th Cir. 1987). St. Joan has shown no such interference with the right recognized in Pierce.

         St. Joan claims that the withholding of free busing, a state-subsidized benefit, amounts to a prohibited interference with the right to direct a child's education. This stretches Pierce too far. As a general rule, a state's "decision not to subsidize the exercise of a fundamental right does not infringe the right" and is therefore "not subject to strict scrutiny." Regan v. Taxation with Representation of Washington, 461 U.S. 540, 549 (1983); see also, e.g., Sweeney v. Pence, 767 F.3d 654, 669 (7th Cir. 2014). More to the point, a state that chooses not to assist a private school does not breach the right Pierce described. In Norwood v. Harrison, the Supreme Court explained:

It has never been held that if private schools are not given some share of public funds allocated for education that such schools are isolated into a classification violative of the Equal Protection Clause. It is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid.

413 U.S 455, 462 (1973). In Maker v. Roe, the Court added that Pierce "casts no shadow over a State's power to favor public education by funding it." 432 U.S. 464, 477 (1977); see also Cornerstone Christian Sch. v. Univ. Inter scholastic League, 563 F.3d 127, 138 n.12 (5th Cir. 2009); Gary S. v. Manchester Sch. Dist, 374 F.3d 15, 19-22 (1st Cir. 2004); Cass R. Sunstein, Is There an Unconstitutional Conditions Doctrine?, 26 San Diego L. Rev. 337, 340-42 (1989). Pierce, then, does not protect against a state favoring public schools with public dollars, which is-at worst-all MPS has done.

         St. Joan's reach for strict scrutiny stretches the record, too. There is no evidence that Policy 4.04 hamstrings the right of parents to direct their children's education. Parents can and do choose to send their children to Milwaukee private schools, despite Policy 4.04. Parents who cannot rely upon private transportation have other options available. All sixty-eight children live within one mile of public transportation (hence this lawsuit), and St. Joan in fact provided the students with busing. To be sure, the record contains testimonial evidence that some unenumerated number of families declined to send their children to St. Joan because it could not promise free busing. But that Policy 4.04 caused some families to "decide to modify" where they sent their children "does not transform" the policy into an intrusion on parental rights. Bowen, 483 U.S. at 601-02 & n.16; accord Califano v. Jobst, 434 U.S. 47, 54 (1977). The burden must be direct and substantial, and no evidence shows that.

         St. Joan also makes much of the fact that Wisconsin considers free transportation for private-school students to be "important," as evidenced by the 1967 constitutional amendment and § 121.54. This emphasis is misplaced. State-specific policies do not augment fundamental rights. Accord Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (only rights that are "deeply rooted in this Nation's history and tradition" count as fundamental) (citation omitted). Wisconsin law has implications on whether there are rational bases for Policy 4.04's restrictions (as we discuss below), but not whether strict scrutiny applies.

         With strict scrutiny off the table, rational-basis review governs St. Joan's challenges to the one-mile rule and the July 1 deadline. That standard permits a court to invalidate a legislative classification only if there is no rational relationship between the classification and "some legitimate government purpose." Segovia, 880 F.3d at 390. "Some" is key-a classification is generally valid as long as a rational basis is plausible, even if the legislature did not expressly endorse it. See FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313-15 (1993); Indiana Petroleum Marketers & Convenience Store Ass'n v. Cook, 808 F.3d 318, 322 (7th Cir. 2015). Rational-basis review tolerates overinclusive classifications, under inclusive ones, and other imperfect means-ends fits. Heller v. Doe, 509 U.S. 312, 319-320 (1993); Gregory v. Ashcroft, 501 U.S. 452, 473 (1991); Vance v. Bradley, 440 U.S. 93, 107-09 (1979). The standard also imputes "a strong presumption of validity" on the contested classification. Beach Commc'ns, 508 U.S. at 314-15. To overcome that presumption, a challenger must negate "every conceivable basis which might support" the classification. Id.

         B. The One-Mile Rule

         Policy 4.04 draws a line. On one side are private schools, like St. Joan, and attendance-area schools, both of which are subject to the one-mile rule; on the other side are city wide and nonattendance-area schools, which are not. St. Joan argues that this line-drawing violates equal protection, at least as applied to it, because the one-mile rule irrationally treats private schools differently.

         Equal-protection claims start with the question: treated differently than whom? See Erwin Chemerinsky, Constitutional Law: Principles and Policies § 9.1, 698 (5th ed. 2015). In cases like this, where the challenged regulation provides explicit classifications, the answer should be easy. Driving laws may treat fifteen-year-olds differently than sixteen-year-olds. Liquor laws may treat saloons differently than grocery stores. And so on. The parties, however, muddle the answer here. MPS submits that St. Joan is technically an attendance-area school, because it has an allotted attendance area under state regulations. Thus, MPS contends, St. Joan is treated differently only when compared to dissimilar schools; but it is treated the same as its relevant comparator-attendance-area schools. St. Joan vehemently disagrees, arguing that it must be compared to citywide schools. St. Joan has an attendance area, the school concedes, but that attendance area is the entire city-just like citywide schools.

         The debate is unnecessary. Arguments over whether there is an apt "similarly situated" comparator are suited for class-of-one equal-protection cases, in which the individual claimant must show that she was treated differently (and irrationally so) than someone else. See, e.g., Harvey v. Town of Merrillville,649 F.3d 526, 532 (7th Cir. 2011). But where, as here, "the classification appears in the text of" the challenged regulation, we do not "need to identify a comparator." Monarch Beverage ...


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