ST. JOAN ANTIDA HIGH SCHOOL INC., Plaintiff-Appellant, v. MILWAUKEE PUBLIC SCHOOL DISTRICT, Defendant-Appellee.
No. 18-1673
United States Court of Appeals For the Seventh Circuit
Argued September 18, 2018 — Decided March 25, 2019
Before SYKES, BARRETT, and ST. EVE, Circuit Judges.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:17-cv-00413-JPS — J.P. Stadtmueller, Judge.
ST.
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.
After the amendment, Wisconsin passed enabling legislation that requires school districts to provide transportation for both public- and private-school students. See
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) citywide 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
The second challenge is to MPS‘s roster-notification deadline. Under
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
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.”
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., 424 F.3d at 690 n.4.
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. Id. at 535; 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 Maher 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. Interscholastic 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
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 citywide 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 Co. v. Cook, 861 F.3d 678, 682 (7th Cir. 2017). The regulation that imposes the burden does the work for us.
Here, Policy 4.04 treats private schools, like St. Joan, differently than citywide schools and nonattendance-area schools—and that requires a rational basis. St. Joan submits that there is no rationale for the different treatment, especially in light of
MPS, a public-school district, has obvious legitimate interests in reducing overcapacity in crowded attendance-area schools and in expanding special program access to its students. See Lewis v. Ascension Par. Sch. Bd., 806 F.3d 344, 363 (5th Cir. 2015); Spurlock v. Fox, 716 F.3d 383, 403 (6th Cir. 2013); Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 557 (3d Cir. 2011). Either goal requires the same feat—to put more kids in citywide and nonattendance-area classrooms. To that end, exempting students who attend those schools from the one-mile rule means more kids will get busing to those schools, which in turn encourages and makes easier their attendance to those schools. That is rational.
There is a related reason for limiting the one-mile rule‘s application. MPS students who attend citywide or nonattendance-area schools are, logically, more likely to have to travel farther from their home to get to school than students who go to attendance-area schools. That beckons a trade-off. In exchange for MPS students traveling farther, MPS makes the travel easier by ensuring free busing for most students.
Faced with these rational bases, St. Joan reframes the issue. It posits, and the district court concluded, that the question is not whether MPS had a rational basis for exempting citywide and nonattendance-area students from the one-mile rule (the district court accepted that it did). The question, St. Joan says, is whether there is a rational basis for not extending the same benefit to private-school students. St. Joan sees an upside to the latter formulation, believing it requires MPS to identify something undeserving about private-school students to justify denying them the busing benefits some public-school students receive. But that is not how rational-basis review works.
The standard, like most in constitutional law, is a means-end test. See G. Stone et al., CONSTITUTIONAL LAW 453 (7th ed. 2013). We need only identify a legitimate end and ask whether the means—the classification—bears a rational relationship to the end. E.g., Armour, 566 U.S. at 680; Beach Commc‘ns, 508 U.S. at 315–20. So if, for example, a state is concerned with the success of its small-business sector, and, in response, it passes a regulation offering more generous grant terms to companies with fewer than fifty employees, the regulation is rationally related to the state‘s legitimate concern. The analysis ends there. See U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 176–79 (1980). On rational-basis review, we do not additionally require the state to persuade us why a company with, say, two-hundred employees would not also benefit from more grant money. Cf. Rothe Dev., Inc. v. U.S. Dep‘t of Def., 836 F.3d 57, 73 (D.C. Cir. 2016) (deeming rational a grant program for socially disadvantaged businesses). Lawmakers often have to draw lines when “classifying governmental beneficiaries,” and sometimes that means those with “strong claim[s] to favored treatment” will be left out. Beach Commc‘ns, 508 U.S. at 315–16; see also, e.g., Fitzgerald v. Racing Ass‘n of Cent. Iowa, 539 U.S. 103, 108 (2003); Regan, 461 U.S. at 550–51; Maher, 432 U.S. at 477; City of New Orleans v. Dukes, 427 U.S. 297, 303–06 (1976) (per curiam); Dandridge v. Williams, 397 U.S. 471, 486 (1970) (per curiam).
That is what happened here. MPS has legitimate interests in reducing overcrowding and expanding educational access in
St. Joan attacks the rationality of MPS‘s application of the one-mile rule on other grounds. It asserts that overcrowding is not truly a problem in MPS schools, because many attendance-area schools are not at maximum capacity. St. Joan argues further that MPS has no reason to differentiate St. Joan from citywide schools because St. Joan also offers special programming. These arguments may have held water if St. Joan had a strict-scrutiny case. But it does not. On rational-basis review, classifications can be both underinclusive and overinclusive and still survive. E.g., Wisconsin Educ. Ass‘n Council v. Walker, 705 F.3d 640, 655–56 (7th Cir. 2013). MPS, moreover, does not need conclusive support from “evidence or empirical data” to make the rational decisions it has. Beach Commc‘ns, 508 U.S. at 313–15.
Turning to MPS‘s second justification, cost savings may serve as a rational basis for classifications. See Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 83–84 (1988); Bowen, 483 U.S. at 599; Srail v. Vill. of Lisle, Ill., 588 F.3d 940, 948 (7th Cir. 2009); Irizarry v. Bd. of Educ. of City of Chicago, 251 F.3d 604, 610 (7th Cir. 2001). The cases that so hold generally identify potential costs that are unique or distinct to the disfavored group. See Bankers Life, 486 U.S. at 83–84 (charging assessments on nonmonetary judgments “would impose a considerable cost in judicial resources“); Irizarry, 251 F.3d at 610 (excluding unmarried persons from dependent benefits resulted in “distinct” savings). In another busing case, for example, we concluded that a school district had a rational basis for not transporting a charter school‘s students, because doing so would have resulted in “unique and additional costs” to the school district. Racine Charter One, 424 F.3d at 685–87. That is not to say that states can randomly discriminate to keep costs down. If the state‘s cutoff is arbitrary or invidious, then the classification is by definition not rational. See Mem‘l Hosp. v. Maricopa Cty., 415 U.S. 250, 263 (1974); Shapiro v. Thompson, 394 U.S. 618, 633 (1969), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651 (1974).
Cost savings, in the context of MPS‘s other goals, provide an additional rational basis here. It may well be true, as St. Joan asserts, that a St. Joan student is no more expensive to bus than a citywide or nonattendance-area student. But MPS is already stretched thin; it spent forty-million dollars to provide busing in the 2016–2017 school year, barely any of which state aid covered. Despite those straits, MPS could believe that overcrowding and access concerns were worth taking on the added cost of busing most citywide and nonattendance-area students. It has no similar reason to take on those costs for private and attendance-area students. So MPS made the rational choice: pay more to expand busing to schools that could reduce overcrowding and promote program access, but not to schools that are less likely provide the same returns. See Bowen, 483 U.S. at 596; Idaho Dep‘t of Employment, 434 U.S. at 101.
St. Joan‘s argument derives from Allegheny Pittsburgh Coal Co. v. Cty. Comm‘n of Webster Cty., W. Va., 488 U.S. 336 (1989). In Allegheny, the Supreme Court considered a county‘s property-tax assessment scheme that “systematically produced dramatic differences in valuation“—in some cases assessing property at more than thirty times the rate of comparable properties. Allegheny, 488 U.S. at 341. The county defended the scheme by arguing that it aimed to peg “properties at true current value.” But that goal, the Court held, could not rationally explain the gross disparities in tax treatment. Id. at 343–44. Nor could state law. The Court recognized that states can make rational distinctions among taxpayers and assess different tax burdens, but the state had “not drawn such a distinction.” Id. at 345. To the contrary, West Virginia‘s constitution mandated that “taxation shall be equal and uniform throughout the State.” Id. at 338 (emphasis added). The Court therefore saw no conceivable rational bases for the scheme. Id. at 345–46.
Allegheny‘s holding is quite narrow. Three years after Allegheny came Nordlinger v. Hahn, another equal-protection challenge involving property taxes. 505 U.S. 1 (1992). Like the scheme in Allegheny, the law in Nordlinger “resulted in dramatic disparities in taxation.” Id. at 14. But Allegheny was distinguishable, according to the Court. Citing the Allegheny county‘s irrational justification and the state-law uniformity directive, the Court concluded that Allegheny “was the rare case where the facts precluded any plausible inference” of a rational basis. Id. at 14–16; see also Fitzgerald, 539 U.S. at 109–10; Chemerinsky, CONSTITUTIONAL LAW 718 (after Nordlinger, Allegheny “seems limited to challenges of arbitrary and unjustifiable administrative decisions“). Two decades after Nordlinger, the Court again emphasized Allegheny‘s limits in Armour.
In Armour, the Supreme Court evaluated how Indianapolis divvied up the costs of a new sewer project among local homeowners. Indiana law required that such costs be “apportioned equally.”
Despite the parallels—a state uniformity law and gross disparity—the Court in Armour held that Allegheny did not control. Id. at 687. Allegheny, the Court explained, “involved a clear state law requirement clearly and dramatically violated.” Id. (emphases added). Not so in Armour, according to the Court, because the city followed state law in the first instance, and state law said nothing about forgiveness plans. The Court went no further on the state-law question, rejecting
This is not one of those rare cases. MPS‘s avowed rational bases are sound, and
Of course, none of this means that the one-mile rule complies with
In coming out the other way, the dissent goes further than we are willing. It draws on legislative history and potentially comparable lower-court decisions (like St. John Vianney) to conclude that the one-mile rule violates
MPS additionally requires private schools to provide by July 1 the names of students who need busing. This deadline applies only to private-school students, not MPS students, and thus St. Joan claims that it also violates equal protection. In response, MPS proffers one rational basis in support of the deadline: administrative necessity.
There is no question that administrative concerns can justify certain classifications. E.g., Armour, 566 U.S. at 683; Bankers Life, 486 U.S. at 84; Hearne v. Bd. of Educ. of City of Chicago, 185 F.3d 770, 775 (7th Cir. 1999). Such concerns exist here. Before school starts, MPS must determine which students are eligible for transportation, compare school rosters to confirm that students are not double booked, and arrange for bus services or contract for alternative transportation services. See
That is sufficient to deem the deadline constitutional on its face.6 See Midwest Fence Corp. v. U.S. Dep‘t of Transp., 840 F.3d 932, 941–46 (7th Cir. 2016); see also United States v. Salerno, 481 U.S. 739, 745 (1987). St. Joan, however, also lobs a related challenge to what comes after the deadline. According to St. Joan, MPS treats students who enroll near or after July 1 differently depending on their school. To illustrate, St. Joan offers a hypothetical. Suppose MPS completes transportation arrangements for all schools (public and private) by August 15. A week later, two families, each with a fourteen-year-old, move to Milwaukee. One family decides to send its child to a private
school outside of her neighborhood; the other opts for a public school outside of her neighborhood. And then MPS learns of the two students, and their need for busing, on the exact same day. The private-school student cannot get busing; yet the public-school student could, according to St. Joan.
That prospect gives us pause. The time needed to arrange for transportation before the school year justifies imposing a roster-notification deadline on private schools. But pre-arrangement needs offer no justification for treating post-arrangement latecomers differently. Granted, some rigidity in the deadline may be rational (to motivate private schools to comply with the it); but even that would not justify treating students who move to the district near or after the deadline differently, based only on whether they go to private or public school. We see no rational basis for that distinction, and MPS has not provided any. Perhaps there are heightened burdens associated with latecomer private-school students that do not exist for public-school students, but again, MPS has not pointed to any.
III. Conclusion
For these reasons, we AFFIRM the district court‘s judgment with respect to the one-mile rule and we REVERSE and REMAND for further proceedings consistent with this opinion with respect to the July 1 deadline.
SYKES, Circuit Judge, dissenting. I respectfully dissent. Unlike my colleagues, I think this is indeed the “rare case” in which a state-law uniformity mandate removes otherwise plausible policy justifications for a local legislative classification, leaving no rational basis for the local rule. Nordlinger v. Hahn, 505 U.S. 1, 16 (1992) (describing Allegheny Pittsburgh Coal Co. v. Cty. Comm‘n of Webster Cty., W. Va., 488 U.S. 336 (1989)). I would reverse and remand for entry of judgment for the plaintiff.
* * *
To understand this unusual equal-protection claim, it‘s helpful to review the relevant state legal history. In 1962 the Wisconsin Supreme Court held that the state constitution prohibited the expenditure of public funds to transport children to parochial and private schools. State ex rel. Reynolds v. Nusbaum, 115 N.W.2d 761, 769–70 (Wis. 1962). Wisconsin voters responded by amending the constitution. In 1967 they added this language: ”Transportation of school children. Nothing 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.”
Acting on this new constitutional authority, the Wisconsin legislature immediately “elect[ed] to provide for the transportation of children to any parochial or private school by amending the existing statutes ... to provide for transportation for students attending private or parochial schools and public schools upon a reasonably uniform basis.” Cartwright v. Sharpe, 162 N.W.2d 5, 8 (Wis. 1968) (emphasis added). The enabling legislation included an explicit state-ment of statutory purpose: “The intent of this act is to provide for the safety and welfare of children by providing for their transportation to and from public and private schools.” Ch. 68, § 1, 1967 Wis. Sess. Laws 144.
To that end, the legislature amended the school-transportation statutes to require “every school board” to provide transportation to and from public and private schools for all students who reside in the district and live “2 miles or more” from their school.
School districts may of course provide more generous transportation service. The statutory scheme recognizes that school boards may elect to transport “all or some of the pupils” who reside in the district and live less than two miles from their school.
Finally, and most relevant here, the transportation mandate excludes children who live in cities served by public transit systems.
The 1967 legislation soon spawned litigation. In a key early case interpreting the new statutory scheme, the Wisconsin Supreme Court explained that “[t]he important change” ushered in by the constitutional amendment and enabling legislation “was to provide that where transportation is furnished, either mandatory or permissive, it must be on a reasonably uniform basis to children attending either public or private schools.” Cartwright, 162 N.W.2d at 10–11. Put slightly differently, “[w]hat the constitutional amendment and enabling legislation accomplished was to provide that the same consideration of safety and welfare should apply to public and private students alike.” Id. at 11.
* * *
The Milwaukee Public School District (“MPS” or “the District“) qualifies for the city option. The District serves children in the City of Milwaukee, where public bus service (operated by the Milwaukee County Transit System) is available. MPS has chosen to provide free transportation service to some resident children and thus is bound by the statutory obligation to treat public and private school students alike.
MPS Administrative Policy 4.04 contains the District‘s transportation regulations. Two features of the policy are at issue here. The first concerns the distance standards for determining eligibility for free transportation. The policy draws no distinction between public and private elementary-school students. Tracking the statutory mandate for noncity schools, MPS provides free transportation for public and private school students in grades K–8 who live “two miles or more” from their school. ADMINISTRATIVE POLICIES OF THE MILWAUKEE PUBLIC SCHOOLS, POLICY 4.04(2)(a)1., (b)1. (Nov. 12, 2014).
The eligibility rules are different for students in grades 9–12. MPS conditions free transportation service for high-school students on the two-mile rule plus an additional distance requirement. The District will transport only those high-school students
But MPS lifts this second condition for students who attend citywide public high schools or public high schools outside their neighborhood attendance area. Id. 4.04(5)(a)2., (b)2. In other words, students who attend public citywide high schools and live two miles or more from school get free transportation from the District regardless of their proximity to public transportation; their counterparts in private citywide high schools do not. The latter are ineligible for free transportation unless they live more than one mile from a public transit stop.
Students at private schools are disadvantaged in another way. Milwaukee children who attend private schools (regardless of grade level) cannot receive transportation from MPS unless the private school “submits the names, grade levels, and location of eligible students no later than the third Friday of September.” Id. 4.04(2)(b)4. As my colleagues explain, in practice MPS requires private schools to submit their transportation rosters by July 1. Students who enroll after that date—whether later in the summer or after the school year has begun—are ineligible to receive transportation service from MPS for that school year. The roster requirement and July 1 cutoff date apply only to private schools. Late and mid-year enrollees in the District‘s own schools are not denied free transportation.
* * *
St. Joan Antida High School challenges these disparate transportation rules on behalf of itself and its students. St. Joan Antida is a private, all-girls high school in the City of Milwaukee with a citywide attendance area. That is, its students come from all over Milwaukee, not just the immediate neighborhood, so they are similarly situated in all material respects to students in public citywide high schools. Yet MPS treats them unequally for purposes of transportation eligibility. They are denied free transportation if they live within one mile of a public transportation stop. MPS does not apply this extra distance requirement to their counterparts at public citywide high schools. This difference in treatment, the school argues, violates the Fourteenth Amendment‘s Equal Protection Clause. St. Joan Antida also challenges the July 1 roster deadline, which operates as a cutoff date to receive transportation service but applies only to students in private schools.
My colleagues conclude that the challenged rules do not burden a fundamental right and thus do not trigger strict scrutiny under prevailing equal-protection doctrine. I agree and have nothing to add to the analysis in Section IIA of the majority opinion. The challenged rules need only be rationally related to a legitimate governmental interest. This is a highly deferential standard. As the majority explains, under rational-basis review, (1) the challenged law enjoys a presumption of validity; (2) the government‘s actual reasons for adopting it do not matter; and (3) the fit between the government‘s means and its ends can be both hypothetical and very loose. In short, as long as some legitimate governmental purpose is conceivably in play and the law might rationally be thought to serve that purpose, the test is satisfied. It‘s almost impossible to flunk this lenient standard.
Even so, there is a legal baseline below which local laws may not fall and still be thought minimally rational for equal-protection purposes. If state law places persons
The county maintained that its assessment method was a rational way to measure “true current value” because it used actual sale prices plus periodic adjustments “[a]s those data grow stale.” Id. at 343. The Court disagreed, though it did “not intend to cast doubt upon the theoretical basis of such a scheme.” Id. “That two methods are used to assess property in the same class is, without more, of no constitutional moment. The Equal Protection Clause ‘applies only to taxation which in fact bears unequally on persons or property of the same class.‘” Id. (quoting Charleston Fed. Savings & Loan Ass‘n v. Alderson, 324 U.S. 182, 190 (1945)). The factual predicate was easily established in Allegheny: “Petitioners’ property has been assessed at roughly 8 to 35 times more than comparable neighborhood property, and these discrepancies have continued for more than 10 years with little change.” Id. at 344.
The Court continued: “The States, of course, have broad powers to impose and collect taxes ... [and] may divide different kinds of property into classes and assign to each class a different tax burden so long as those divisions and burdens are reasonable.” Id. “But West Virginia has not drawn such a distinction. Its Constitution and laws provide that all property of the kind held by petitioners shall be taxed at a rate uniform throughout the State according to its estimated market value.” Id. at 345. State law required reasonable uniformity, but the county‘s assessment scheme “systematically produced dramatic differences in valuation” for similarly situated properties. Id. at 341. Because the valuation method consistently produced results that transgressed the state-law uniformity norm, it was not rationally related to a legitimate governmental purpose. Id. at 343–45. That is, state law negated any conceivable rational basis for the local discriminatory practice. The Court found an equal protection violation. Id. at 346.
As my colleagues observe, the Court later described Allegheny as “‘the rare case where the facts precluded’ any alternative reading of state law and thus any alternative rational basis” for the challenged local practice or rule. Armour v. City of Indianapolis, 566 U.S. 673, 687 (2012) (quoting Nordlinger, 505 U.S. at 16). In Armour homeowners sued the City of Indianapolis after it changed its method of funding sewer projects. Indiana law required that “costs [for sewer improvements] be primarily apportioned equally among all abutting lands or lots.”
The Court held that the case did not implicate Allegheny. The statute required Indianapolis to apportion costs equally—which the City plainly had done—but state law said nothing about later forgiveness. The Court explained: “[T]he City followed state law by apportioning the cost of its [sewer] projects equally. State law says nothing about forgiveness, how to design a forgiveness program, or whether or when rational distinctions in doing so are permitted.” Id. at 687. That distinguished Armour from Allegheny. The Court characterized Allegheny as a “rare case” because it “involved a clear state law requirement clearly and dramatically violated.” Id.
Unlike my colleagues, I do not read this last sentence as materially changing Allegheny‘s fundamental holding. True, the Court in Allegheny said that the county‘s assessment method produced “dramatic differences in valuation,” but that statement was descriptive, not doctrinal. If Armour truly limits Allegheny to local rules or practices that “dramatically” depart from state law, we‘d need some standard to distinguish “dramatic” departures from those that are not. But Armour did not elaborate. On this point at least, I hesitate to read this passage from Armour as a doctrinal limitation on Allegheny.
Perhaps it‘s fair to read Armour as limiting Allegheny‘s holding to clear violations of clear state uniformity mandates. If so, we have that here. As I‘ve explained, the school-transportation statutes say—again and again—that school districts must treat public and private school students reasonably equally when it comes to access to publicly funded transportation. Districts operating under the city option need not provide free school transportation to any resident children, but if they provide it to some, then the law requires “reasonable uniformity in the transportation fur-nished to the pupils, whether they attend public or private schools.”
Put another way, if the city option were not in play, MPS would have a plain statutory duty to transport all students who live two miles or more from their school, whether public or private.
It‘s true, as my colleagues point out, that
That was enough to decide the case, but the opinion continues with some extensive dicta. The court went on to observe that “[t]he overall concern behind the school transportation statutes is the safety and welfare of pupils.” Id. Recognizing that “many factors affect ... safety and welfare,” the court deduced from the broader statutory scheme that “[t]he distance a child lives from school is ... the principal factor with which the statutes are concerned.” Id. Acknowledging that
The actual holding in St. John Vianney is limited. The court held only that the uniformity mandate in
A case decided four years before St. John Vianney sheds even more light on the scope and operation of the uniformity requirement. In Hahner v. Board of Education, a school district provided busing on almost uniform terms to public and private schools. The problem was that it routinely refused to bus students to certain Catholic schools that held classes during a week when other schools in the district (public and private) had spring break. 278 N.W.2d 474, 475–76 (Wis. Ct. App. 1979). As a result, a small number of students attending Catholic schools did not receive busing for the entirety of their school year.
Addressing the “reasonable uniformity doctrine” in the school-transportation code,1 the court held that the district
did not have the discretion to deny transportation
The crucial question is whether a school board‘s discretion in coordinating the scheduling of the transportation of pupils to public and private schools extends to not transporting pupils to private schools during a week when the public schools are closed for vacation. ... [T]he purpose of coordinating these transportation activities is “to insure the safety and welfare of the pupils” as provided in sec. 121.56, Stats. This court believes the objective of this requirement is to prevent discriminatory treatment of pupils attending private schools in the transportation provided them. The fact that the school district would save money by not transporting private school pupils during a week when the public schools are closed for vacation is a factor which bears no relationship to the safety and welfare of the pupils being transported to public schools.
Id. at 479 (emphasis added).
Together, St. John Vianney and Hahner make clear that MPS‘s discriminatory one-mile rule violates the statutory requirement of reasonable uniformity in the provision of free transportation to public and private school students. The challenged rule is unequal on its face and cannot be justified by reference to student safety and welfare, which are the only legitimate public-policy interests recognized by state law as justifications for school-transportation distinctions between public and private school students. Simply put, state law forbids MPS from making a policy choice to allocate free transportation on these unequal terms.
MPS defends its discriminatory one-mile rule based on abstract goals of avoiding overcapacity in its neighborhood schools, expanding access to special programming, and saving money. My colleagues accept these justifications as rational reasons for discriminating against private school students. With respect, state law leaves no room for these possible policy justifications. The state legislature has decreed a public policy of reasonably uniform treatment of public and private school students when it comes to free school transportation. School districts may not have different eligibility rules for public and private school students (except perhaps for safety and welfare reasons). Under clear state law, discriminating between public and private school students is not an available means to achieve other policy goals. Put somewhat differently, a local rule that defies the state-law uniformity command serves no legitimate governmental purpose. Like the county tax-assessment method in Allegheny, the MPS rule violates the Equal Protection Clause.2
For similar reasons, the District‘s enforcement of the July 1 roster deadline violates the Equal Protection Clause. As I understand this claim, St. Joan Antida does not object to a general rule requiring private schools to submit a transportation roster by a date certain. It challenges the District‘s practice of denying free transportation to students who enroll after the deadline passes. Late and mid-year enrollees at public schools do not suffer the same fate. This policy, too, violates the state-law requirement of reasonable uniformity, leaving no rational basis for the discriminatory treatment.
My understanding of this claim differs from the majority‘s in another way. St. Joan Antida challenges the enforcement of the roster policy as a general matter. The school seeks an injunction against the discriminatory denial of transportation to students who enroll in private school after the July 1 deadline. St. Joan Antida also seeks damages; the monetary remedy is of course keyed to facts peculiar to the school and its students. But the parties have stipulated to damages.
My colleagues share some of my concerns about the rationality of this policy and remand for further clarification and development of this claim. As I see it, all that remains to be done on remand is to fashion an appropriate injunctive remedy and enter judgment granting injunctive and monetary relief. St. Joan Antida has explained that students who have not yet enrolled in private school by the July 1 deadline (and thus do not appear on a
For these reasons, I would reverse and remand with instructions to enter judgment for St. Joan Antida.