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Don’t Say Catholic

By M.D. Kittle

MADISON — The Wisconsin Institute for Law & Liberty (WILL) is asking the U.S. Supreme Court to review whether the Wisconsin Superintendent of Public Instruction violated the First Amendment when he withheld transportation benefits from an independent Catholic school unless it agreed not to call itself “Catholic.”

Who was the state superintendent who violated state law at the time? Gov. Tony Evers, who led the Department of Public Instruction for a decade before becoming governor in 2019.

WILL previously won its lawsuit after an appeals court ruled Evers’ DPI broke the law, but  the court did not resolve the core constitutional questions of religious liberty at stake in the case.

It’s been a long legal journey.

The legal battle goes back some six years, when, in 2016, WILL first took Evers and DPI to court after the agency denied transportation aid to St. Augustine School, a private and independent K-12 school in Colgate.

Wisconsin provides aid to qualifying private school students as long as there is not an overlapping attendance area between private schools that are affiliated with one another, or, more specifically, affiliated with the same sponsoring group.

In this case, DPI and Friess Lake School District (now part of Holy Hill Area School District) denied St. Augustine students busing rights because there is an Archdiocesan Catholic school in the attendance area. But St. Augustine is independent and unaffiliated with the Archdiocese.

The school district and DPI determined the definition of Catholic and withheld government benefits until St. Augustine agreed not to call itself “Catholic.”

The case was moved to federal court where the U.S. District Court for the Eastern District of Wisconsin ruled against St. Augustine in June 2017. In October 2018, a three-judge panel at the U.S. Seventh Circuit Court of Appeals in Chicago affirmed the lower court ruling 2-1.

In a vigorous dissent, Judge Kenneth Ripple warned that the decision “raises haunting concerns about the future health of the Religion Clauses [of the First Amendment] in this circuit.” The decision was also criticized in an article in the June 2019 edition of the Harvard Law Review.

In March 2019, WILL asked the U.S. Supreme Court to review the decision. The court took the appeal and vacated the Seventh Circuit’s ruling, remanding the case back to the appeals court in July 2020. The order followed the 5-4 ruling in Espinoza v. Montana Department of Revenue, which held that a rule barring families from using a tax-credit scholarship to attend religious schools violates the First Amendment’s Free Exercise Clause.

After seeking a ruling from the Wisconsin Supreme Court last year, the Seventh Circuit Court of Appeals issued a decision in December making clear that DPI violated state law when it denied the families at St. Augustine school transportation benefits.

Now, WILL is asking the U.S. Supreme Court to review, specifically, whether the Wisconsin superintendent of Public Instruction violated the First Amendment when he determined the definition of Catholic and withheld government benefits from St. Augustine as a result.

“The critical constitutional questions at the heart of this case remain unresolved,” Anthony LoCoco, deputy counsel for the Milwaukee-based public interest law firm, said. “Government bureaucrats cannot withhold a benefit by imposing their own religious definitions on institutions like St. Augustine School.”

Government bureaucrats, led by then DPI-superintendent Tony Evers, hostile to private schools, have withheld transportation funding for years.

“I do think one takeaway from this case is just how far government officials are willing to go in fights against parents and families in private schools. We’ve been at this now for six years, and we’ve been to the Supreme Court twice now, and they’re still unwilling to pay this transportation aid,” LoCoco told Wisconsin Spotlight last week on the Vicki McKenna Show. “The ordinary Wisconsin family cannot afford six years of litigation just to get their kids to school.”

LoCoco said the appeals court misread the U.S. Supreme Court’s order on the federal constitutional issues. WILL is asking the high court to enforce an order that the lower court has failed follow.

LoCoco said Evers, DPI and the superintendent of the Friess Lake School District forced St. Augustine to make a choice: the private school can receive transportation aid or they can practice their faith and call themselves Catholic.

“The Free Exercise Clause of the First Amendment prohibits the government from penalizing religious believes in this way,” the attorney said.

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