St. Joan Antida High School Inc., Plaintiff-Appellant,
Milwaukee Public School District, Defendant-Appellee.
September 18, 2018
from the United States District Court for the Eastern
District of Wisconsin. No. 2:17-cv-00413-JPS - J.P.
Sykes, Barrett, and St. Eve, Circuit Judges.
EVE, CIRCUIT JUDGE.
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.
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.
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.
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).
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
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.
ensure transportation to these schools, MPS devised Policy
4.04. This lawsuit challenges two parts of that policy.
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"). 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.
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.
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
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. 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.
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
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).
Standard of Scrutiny
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. 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).
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.
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
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.
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.
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.
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.
The One-Mile Rule
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.
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.
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 ...