RACINE CHARTER ONE, INC. D/B/A 21st Century Preparatory School, Christine Hauck, and Sherry James, Plaintiffs-Appellants, v. RACINE UNIFIED SCHOOL DISTRICT, Defendant-Appellee.
No. 05-1003.
United States Court of Appeals, Seventh Circuit.
Decided Sept. 22, 2005.
423 F.3d 677
Lastly, we note that the plaintiffs do not challenge the district court‘s award of costs to Del Re and Lake County; that portion of the court‘s order shall stand.
III. Conclusion
For the reasons stated, we AFFIRM the district court‘s order granting summary judgment in the defendants’ favor. We REVERSE the award of fees in Del Re‘s favor and REMAND for a determination of the appropriate amount, if any, to be awarded to Lake County.
Jeffrey Leavell (argued), Racine, WI, for Plaintiffs-Appellants.
Susan E. Lovern, Von Briesen & Roper, Milwaukee, WI, and Gilbert J. Berthelsen (argued), Briesen & Roper, Racine, WI, for Defendant-Appellee.
Before CUDAHY, EVANS, and WILLIAMS, Circuit Judges.
Plaintiff Racine Charter One (Charter One), an independent public charter school located in Racine County, Wisconsin, sued defendant Racine Unified School District (RUSD), alleging that the district‘s refusal to bus the charter school‘s students constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment to the United Stated Constitution and
I. BACKGROUND
Wisconsin law provides for two kinds of charter schools: those sponsored by local school districts,
The charter school, which is open and free to all who seek to enroll, is the only (2r) charter school located within the RUSD. The school operates independently from the defendant, as the district does not govern or exert any control whatsoever over the (2r) charter school. Charter One currently teaches grades K-6, and enrolls approximately 305 students. Its school year is longer than the ordinary RUSD public school year, and even includes a mandatory three-week summer session. Its students reside throughout Racine County.
In addition to providing for the establishment of charter schools, Wisconsin law also obliges local school districts to provide transportation to certain students residing within their districts.
Before opening in September 2002, Charter One requested that RUSD bus its students. In response to this request, RUSD sought legal advice from various sources—including its own counsel and Chief Legal Counsel to the Wisconsin Department of Public Instruction (DPI)—as to whether the district was legally obliged to provide transportation to Charter One. All agreed that
In May 2003, Charter One brought this action against RUSD, asserting that its refusal to bus Charter One students violated the Equal Protection Clause of the Fourteenth Amendment and
II. ANALYSIS
We review a grant of summary judgment de novo, construing all facts in favor of the non-moving party. Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 974 (7th Cir. 2004).
To state a claim under
Here, the district court properly construed Charter One‘s complaint as alleging a class of one equal protection claim. See Olech, 528 U.S. at 564 n. * (“Whether the complaint alleges a class of one or of [more] is of no consequence because we conclude that the number of individuals in a class is immaterial for equal protection analysis.“). Charter One argues that local government officials within the RUSD denied the school and its students the benefit of busing otherwise provided to all others similarly situated without a rational basis for distinction. Accordingly, we review the merits of Charter One‘s claim under the Olech standard, examining first whether the plaintiff‘s students are indeed similarly situated to those students within the RUSD who do receive busing.
A. Charter One Students Are Not Similarly Situated
To be considered “similarly situated,” comparators must be “prima facie identical in all relevant respects,” Purze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455-56 (7th Cir. 2002), or “directly comparable to [plaintiff] in all material respects,” Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 532 (7th Cir. 2003). Indeed, “[i]t is clear that similarly situated individuals must be very similar indeed.” McDonald, 371 F.3d at 1002. Here, the pertinent comparison must be made between those students within the RUSD who receive busing, and those Charter One students
But there is some controversy as to whether the comparison should end there. Charter One thinks so, contending that we should look only to—and see patent similarities in—both class’ residence and attendance within the district, and their distance from school or their proximity to hazardous conditions along the way. Indeed, if this were all to our comparison, the students of both classes would clearly be similarly situated, as the James family illustrates. Two of the James children attend Charter One, and one attends an RUSD public school. All live in the same house and face the same hazardous condition in getting to school (there is no sidewalk on their road). But while the RUSD student gets free busing, the Charter One students do not.
RUSD, on the other hand, insists that our analysis cannot end with the students themselves, but rather must also account for the differences in the schools that the students of each class attend. Indeed, a student‘s situation is, at least in part, a product of the school that he or she attends. Various factual traits, circumstantial nuances, and peculiarities can set entities apart, rendering them, by virtue of their differences, amenable to disparate treatment. See, e.g., Bell v. Duperrault, 367 F.3d 703, 708-09 (7th Cir. 2004) (finding equal protection class of one plaintiff not similarly situated where the purportedly comparable individuals submitted applications for pier extensions at different times than the plaintiff, requested different kinds of extensions, or requested mere renovations as opposed to wholly new structures); Purze, 286 F.3d at 455 (finding equal protection class of one plaintiffs not similarly situated where “the allegedly similarly-situated individuals ... requested different variances than the [plaintiffs] requested; submitted their plats [for a subdivision] during different time periods; and had their plat requests granted by different and previous Boards“); cf. Ciechon v. City of Chicago, 686 F.2d 511, 522 (7th Cir. 1982) (finding two paramedics similarly situated where both “experienced the same set of circumstances and were equally responsible for patient assessment and treatment” on ambulance runs, yet one “was charged with failure to perform her duties and discharged” while the other “was never charged or disciplined in any fashion“). Toward that end, the defendant directs our attention to the unique character of Charter One.
We begin by noting that the Wisconsin laws defining public schools and public school districts were passed well before the legal conception of charter schools. For that reason, much of the operative law on which our analysis must focus fails to account for these charter schools, or, more importantly, the Unified School Districts’ obligations with respect to them. Thus, as we broach this uncertain area of Wisconsin law, we must make clear that our opinion extends only to the narrow issue before us: whether RUSD‘s decision not to bus (2r) charter school students violates equal protection.
With these limitations in mind, RUSD contends that Charter One is the functional equivalent of an independent school district, and as such responsible for its own busing. By RUSD‘s measure, while Charter One is a public school, its students would be no more entitled to RUSD-funded busing than students attending adjacent school districts such as Kenosha Unified School District, Oak Creek School District, or Raymond School District. While Charter One would at first blush appear to fall within the geographical boundaries of the RUSD, it is, according to the defendant, in fact its own administrative island—an independent school district surrounded on all sides, though not subsumed, by the RUSD.
Charter One is a unique statutory creation. Unlike other public schools within the RUSD (or private and parochial schools for that matter), Charter One came to being through a charter granted by the University of Wisconsin-Parkside. The University was specifically vested with the authority to do so by the Wisconsin state legislature pursuant to
This autonomy in administration goes a long way to suggest that Charter One is not just an independent public school, but also an independent public school district. Wisconsin law defines “school district” as “the territorial unit for school administration.”
Charter One‘s administrative autonomy—particularly with reference to busing obligations—is further demonstrated by its own charter. Section 4.8 of the Charter School Contract Between the Board of Regents of the University of Wisconsin System and Charter One, entitled “Transportation Contracts,” vests Charter One with the authority to “enter into contracts with other school districts or persons, including municipal and county governments, for the transportation of Charter School students to and from school and for field trips.” (emphasis added). This language, along
The charter school‘s second argument, which suggests that its authority to contract for transportation free from RUSD interference is no different than that of private schools whose students nonetheless receive the busing benefit, is more compelling, yet ultimately unavailing as well. As a threshold matter, Charter One has adduced no evidence to support its claim regarding the contracting authority of private schools. But even were we to assume the veracity of such an unsupported claim—an eminently reasonable assumption—the proffered comparison does not nothing to advance the school‘s “similarly situated” argument. Charter One concedes—indeed insists—that it is a public school. Under no construction would it or any other party argue that it was a private school. Thus, its charter-prescribed ability to contract for transportation, while akin to the powers of those private schools which receive the RUSD busing benefit, does nothing to liken this unique public school to RUSD public schools that receive busing. It is upon this comparison that Charter One‘s similarly situated argument depends. While there may be some arguable uncertainty over exactly what kind of public school a (2r) charter school is, one thing is clear: they most certainly are not private or parochial schools.
In addition, we think it worthy to note, though not dispositive to our analysis of the current state of Wisconsin law, that the Wisconsin legislature has twice attempted—and failed pursuant to gubernatorial veto—to pass legislation that would provide charter schools like Charter One the busing to which the plaintiff here claims a present entitlement. A.B. 261, Assem., 2003 Reg. Sess. (Wis. 2003); S.B. 44, Senate, 2003 Reg. Sess. (Wis. 2003). These attempts suggest that even the body entrusted with providing the busing benefit does not believe that it has yet been conferred to charter schools.
Accordingly, we affirm the district court‘s finding that Charter One has failed to show that its students are similarly situated to those students who do receive the busing benefit.
B. RUSD Has A Rational Basis for its Decision to Deny the Busing Benefit
But even assuming that Charter One‘s students are similarly situated to other students within the RUSD, the school‘s challenge fails nonetheless in light of the plaintiffs’ failure to meet the class of one claim‘s second prong.
The exact contours of the second prong of the class of one equal protection claim are not quite clear. As we noted above, the Supreme Court in Olech held that it has “recognized successful equal protection claims brought by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” 528 U.S. at 564 (emphasis added). However, since Olech was decided, the standard for such class of one claims has been muddled in this circuit by two divergent lines of cases. Tuffendsam v. Dearborn County Bd. of Health, 385 F.3d 1124, 1127 (7th Cir. 2004) (recog-
Cases like Nevel and Albiero track explicitly the Supreme Court‘s holding and are wholly consistent with its rationale.” Indiana Land Co., 378 F.3d at 713 (Ripple, J., concurring). In contrast, the Supreme Court explicitly declined to reach the animus approach upon which Hilton and its progeny insist, concluding that “allegateions [of intentional action with no rational basis], quite apart from the Village‘s subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis. We therefore affirm the judgment of the Court of Appeals, but do not reach the alternative theory of ‘subjective ill will’ relied on by that court.” Olech, 528 U.S. at 565; see also Bell, 367 F.3d at 711 (Posner, J., concurring) (conceding that insisting on a free-standing animus test for class of one claims may be akin to “fighting a doomed rearguard action“).
Indeed, it appears our court may have created a “tension” with Olech and established national law where previously none existed. Indiana Land Co., 378 F.3d at 714 (Ripple, J., concurring). True, sound reasons have been advanced for grafting the animus requirement onto the class of one claim—without such a requirement, “breathtaking vistas of liability” might be opened, Tuffendsam, 385 F.3d at 1127, and ordinary state law disputes might become the subject of constitutional challenge, Bell, 367 F.3d at 712 (Posner, J., concurring). That said, the appearance of the animus requirement on the class of one stage is no less jarring. However, we need not decide under which standard the class of one plaintiff must proceed, as here Charter One fails under both. Because the plaintiff has failed to allege, let alone show, any subjective ill will on the part of the RUSD in denying the busing benefit, Charter One‘s class of one claim would clearly fail under the animus standard.2
Again, the unique and autonomous nature of Charter One—a seeming functional equivalent of an independent school district—provides one such rational basis for RUSD‘s decision not to bus the charter school‘s students. According to RUSD, its goal is to provide busing only to those students whom it is required to transport by law—namely, students of its own schools and resident students of private and parochial schools located within the district. Were we to view Charter One as its own school district, RUSD would be no more required to transport the charter school‘s students than it would be required to transport resident students who attend adjacent school districts. Indeed, as Charter One concedes, RUSD‘s policy is consistent with that of school districts throughout Wisconsin, which uniformly exclude independent charter schools from their busing schemes. And the mere fact that Charter One is the only independent charter school within the geographic boundaries of the RUSD does not render its exclusion discriminatory. Based on the administrative autonomy afforded (2r) charter schools under Wisconsin law, it seems that they do exist beyond the pale of local school district transport obligations—an independence that would serve as a rational basis to deny such schools
But we need not find that Wisconsin charter schools established under
As RUSD expressed at oral argument, “Cost is the issue; cost is everything here.” This Court has already recognized cost as a rational basis for differential treatment. Irizarry v. Board of Educ. of City of Chicago, 251 F.3d 604, 610 (7th Cir. 2001); see also Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 83-84 (1988). The record does not provide a hard number on exactly how much more it would cost RUSD to bus Charter One students. It does afford an estimate of how much it would cost to implement from scratch an independent busing scheme devoted solely to Charter One students—$124,000 per year for 257 students—a quote Charter One obtained from a bus company as a result of its own research into potential transportation costs. But this figure is in all likelihood over-inflated. For one, the estimate assumed that nearly the entire Charter One student body at the time would require busing—an unlikely assumption (though we do note that the size of the student body has since expanded to over 300, and is designed to reach at least 400 in the future). Furthermore, the extension of the RUSD busing benefit to Charter One students would not require the wholesale implementation of new busing schedules and routes, but rather could be accomplished, at least in part, by taking advantage of the busing scheme already in place.
Indeed, Charter One makes much of the fact that there are already existing RUSD bus routes that pass by Charter One with empty seats—seats that the school contends could be filled by its students. But just because a bus has empty seats when it passes by Charter One does not necessarily mean that those seats are going unused. Rather, those seats may be reserved for students yet to be picked up, or perhaps only recently vacated by students dropped off mere moments before passing the school. Thus, there may not be as much room on those buses as the plaintiff suspects, and the less room there is, the more the need for additional buses to accommodate Charter One students—at a daily rate of $124.66 per bus, not including an additional $24.29 per run. Dep. of Karen Flynn at 84-85 (July 18, 2003).
Regardless of the current load and capacity of the existing buses and their designated routes, other peculiarities associated with adding Charter One students to the RUSD busing mix might work appreciable costs in both RUSD time and money. To avoid the cost of implementing a busing scheme devoted exclusively to Charter One, RUSD would almost certainly be forced to alter its current busing routes. Some buses service more than one school, requiring the accommodation of not only the various, specific addresses of each passenger (both current riders and each added Charter One student), but also the coordination of potentially different start and end times at each school serviced. Such alterations would come with appreciable costs, be they the creation of new routes, the addition of more buses, or the elongation of bus routes requiring earlier pickups and later drop-offs. And while the record does not allow us to quantify these additional costs to RUSD with any degree of certainty, we are confident that they are substantial enough to provide a rational basis for RUSD‘s refusal to extend the busing benefit to Charter One students.
It requires no stretch of the imagination whatsoever to see that cost is indeed RUSD‘s issue here. Compared to Charter One‘s relatively small and manageable universe of students, faculty, and staff, RUSD must care for the needs and costs of over 20,000 students, as well as dealing with the
But the defendant‘s financial straits need not be dire for us to find its refusal to extend transportation services to Charter One rational. We need only recognize that extending the busing benefit will come at a significant enough expense to RUSD, and that is rational basis enough to justify its transportation policy decision. For now, it suffices to say that Charter One is not entitled to a free ride.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court‘s grant of summary judgment in the defendant‘s favor.
CUDAHY, Circuit Judge, concurring in part and concurring in the judgment.
While I concur in the affirmance of the district court, I would follow a different course of reasoning. Specifically, although I agree that Charter One, as a unique statutory creation with distinct sources of funding, is not similarly situated to other schools located in the RUSD (and thus may be subject to disparate treatment), I believe that the children of the two individual plaintiffs, who are Charter One students, are similarly situated to at least some of the students furnished busing by the RUSD. Accordingly, RUSD‘s refusal to bus Charter One students based solely on their school affiliation seems irrational.
RUSD buses all public and private school students who live more than 1.5 miles from their chosen school or who face hazardous walks to school—even those it is not statutorily required to transport—ostensibly for safety reasons. It also denies transportation services to otherwise qualified Charter One students allegedly for cost reasons. Both safety and cost would seem to be eminently legitimate state interests. The question then becomes whether RUSD‘s busing policy is rationally related to these interests—i.e., whether RUSD‘s refusal to bus Charter One students (and only Charter One students) is rational in light of those interests.
Purely as a matter of logic, the RUSD policy does not hold up. Of course, as a general matter it is rational to base government policies on considerations of cost. Irizarry v. Bd. of Educ. of the City of Chicago, 251 F.3d 604, 610 (7th Cir. 2001). And despite the plaintiffs’ allegations that many of the Charter One students could be accommodated with existing buses and existing bus routes, there will always be some additional cost associated with transporting new students, even if it is just the added time, fuel and mileage associated
RUSD (and the district court) point out that Charter One students have a longer school year than students at other public schools and a mandatory summer session, both of which, it is claimed, will make Charter One students uniquely costly to transport on an annual basis. Yet it is undisputed that RUSD already buses students of at least one year-round elementary school (James Elementary School) and provides busing for RUSD summer school students. (App. D. at 44.) Thus cost considerations related to the length of the Charter One school year do not explain why RUSD refuses to bus Charter One students but is willing to transport these other year-round students.
The RUSD policy is also irrational with respect to safety considerations. It is undisputed that RUSD already buses children who live in the same neighborhoods and walk similar distances along the same routes to school as Charter One students. The children of plaintiff James provide a case-in-point. All three of the James children must cross the same “hazardous” areas on their way to school,1 yet RUSD buses only the one child who attends Julian Thomas Elementary School, refusing to bus the two siblings who attend Charter One, solely because of their school affiliation. Purely as a matter of safety, there is no rational reason to deny two of these children transportation while busing their sibling.
The other criterion of eligibility for the RUSD policy is the distance a student must travel to attend school. And here again there is no rational basis—based on either cost or safety—for distinguishing between Charter One students who live 1.5 miles or more away from their chosen school and other children who must travel the same distances. In short, given RUSD‘s own stated policy goals, there is no rational basis for distinguishing between Charter One students who face hazardous walks to school or live 1.5 miles or farther from Charter One and the other students whom RUSD is not statutorily required to transport2 but who receive busing services based on these same criteria.
Once RUSD has extended its transportation policy to include students that it is not legally required to transport, and has established objective criteria—based solely on distance and safety—to determine which students are eligible for transportation, RUSD cannot rationally exclude certain students based on school affiliation alone. Excluding Charter One students might save money; it might be good administrative practice; but the key consideration here is rationality, and such a policy is not rational in light of the other students RUSD already transports. It is not rational to treat equally expensive or equally at-risk students differently based solely on their school affiliation. Indeed if
Yet the claims of the student plaintiffs still must fail for one simple reason: they have not alleged or introduced evidence suggesting that RUSD acted out of hostility or illegitimate animus toward them.
Contrary to the majority‘s framing of the class of one inquiry, we have held quite recently that “to make out a prima facie case [of a ‘class of one’ denial of equal protection] the plaintiff must present evidence that the defendant deliberately sought to deprive him of the equal protection of the laws for reasons of a personal nature unrelated to the duties of the defendant‘s position.” Tuffendsam v. Dearborn County Bd. of Health, 385 F.3d 1124, 1127 (7th Cir. 2004) (quoting Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000)) (emphasis added). That is, the plaintiffs must demonstrate that the defendant‘s actions were not merely arbitrary and irrational, but motivated by “animosity” or “personal hostility“—a desire to make the plaintiff worse off than others similarly situated. Crowley v. McKinney, 400 F.3d 965, 972 (7th Cir. 2005). Accord Hilton, 209 F.3d at 1008 (requiring class of one plaintiff to demonstrate that defendant acted out of “illegitimate animus“) (internal quotation marks omitted).3
This animus requirement was introduced out of concern that, in its broader formulations, the class of one theory opens up “breathtaking vistas of liability,” Tuffendsam, 385 F.3d at 1127, and threatens to transform ordinary state law disputes—or even previously unreviewable acts of police discretion—into fodder for constitutional lawsuits. See Bell v. Duperrault, 367 F.3d 703, 712 (7th Cir. 2004) (Posner, J., concurring) (noting that since “irrational differences in treatment having nothing to do with discrimination against a vulnerable class abound at the bottom rung of law
Indeed in the case before us one can certainly glimpse the enormous new areas of potential liability opened up by the “class of one” theory, as well as the corresponding need for a limiting animus requirement. If elementary school students may resort to a federal constitutional lawsuit to challenge any irrational misallocation of school district resources—even ones that implicate no fundamental right4 and involve no suspect classification5—what else might be covered by the Equal Protection Clause? Absent some restriction on the doctrine, Judge Posner‘s nightmare scenario, outlined in Bell v. Duperrault, 367 F.3d at 709-10, of citizens bringing constitutional challenges against the uneven issuance of speeding tickets may not be hyperbole after all. Certainly RUSD‘s policy here, as applied to the individual plaintiffs, is no more arbitrary or irrational than the decision of a traffic cop to ticket one particular speeding car while refusing to ticket other cars traveling at similar speeds.
Without any allegation or showing of animus against the plaintiff school children, the individual plaintiffs simply have not made out a prima facie case of discrimination under the class of one theory as articulated by this Court.
Before closing, I should also add that the current lawsuit appears not just legally misguided but also wholly unnecessary. For aught that appears, this dispute could have been settled simply by arranging for payments from Charter One to RUSD to cover the additional cost of busing Charter One students. Indeed this sort of thing seems to be standard practice in every other school district in the state. It is undisputed that virtually all of Wisconsin‘s 120 other charter schools pay for their own students’ busing to some degree, and, as the majority notes, section 4.8 of Charter One‘s own founding charter seems to anticipate a similar arrangement. In the end the key issue, as both parties apparently concede, is not whether the Charter One students will ultimately receive busing, but who must pay for it. Regardless of who is most at fault for the current impasse, this is just not the stuff of constitutional litigation.
Notes
All public and non-public school students, grades K-5, living one and one half or more miles from their respective schools or being eligible for transportation under Wisconsin Statute 121.54(9)—hazardous conditions—shall be transported. All public and non-public school students, grades 6-12, living two or more miles from their respective schools or being eligible for transportation under Wisconsin Statute 121.54(9)—hazardous conditions—shall be transported. Specifically, the children must cross Washington Avenue, which has been deemed “hazardous” by the relevant district authorities.
Yet at least two of the cases upholding an animus requirement actually post-date authorities relied upon by the majority, comprising some of this Court‘s most recent pronouncements on the issue. Additionally, while the Supreme Court‘s cursory treatment of the class of one theory in Village of Willowbrook v. Olech, 528 U.S. 562, 564-65 (2000), does not reach this animus requirement, the Court also does not disavow it, and over the last year we have concluded that some level of animus is implied in the requirement that any adverse treatment be “intentional“: “[W]e don‘t think the Supreme Court in Olech intended to overrule Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979), which holds that an official ‘intends’ a consequence when he acts because rather than in spite of it.” Tuffendsam, 385 F.3d at 1127.
More fundamentally, as long as the cases recognizing the animus requirement have not been overruled or otherwise authoritatively rejected, I think it preferable in cases like this to rely on a lack of animus rather than, with all respect, to have recourse to rather tortured analyses of irrationality. The present case is an excellent example of the need for a sensible limiting principle less elusive than the sometimes will-of-the-wisp of irrationality.