Legal Updates


November 6, 2018

Public school districts are responsible for providing transportation to private school pupils under certain circumstances.  A recent Seventh Circuit Court of Appeals decision serves as a reminder of public school districts’ responsibility in this area, while the court grappled with a particular provision of Wisconsin’s private school pupil transportation requirements.

Wis. Stat. § 121.54(2)(b)1 provides that pupils attending a private elementary or high school, including four and five-year-old kindergarten, are entitled to transportation from a public school district to and from school if the following conditions are met:

  1. The pupil resides within the public school district’s boundaries;
  2. The pupil resides two (2) miles or more from the private school he/she attends;
  3. The pupil resides within the private school’s approved attendance area; and
  4. The private school is located within the school district or not more than five (5) miles beyond the boundaries of the school district measured along the usually traveled route.

However, Wis. Stat. § 121.54(1) also provides an exemption to these transportations requirements for certain school districts.  This exemption, known as the “city option,” provides that public school districts are not required to transport “pupils who reside in a school district that contains all or part of a city unless the school they attend is located outside the city but within the boundaries of the school district” or unless the city is a first, second, or third class city with a population exceeding 40,000.  The city option also provides that a public school district is not required to provide transportation to pupils in a first, second, or third class city with a population exceeding 40,000 if transportation for these pupils is available through a common carrier.

As noted above, a pupil must reside within the approved “attendance area” of the relevant private school district to be entitled to transportation provided by the public school.  Wis. Stat. § 121.51(1) defines attendance areas and sets certain limitations on these areas.  Under § 121.51(1) a private school’s attendance area is defined as “the geographic area designated by the governing body of a private school as the area from which its pupils attend and approved by the school board of the district in which the private school is located.”  Importantly, “[t]he attendance area of private schools affiliated with the same religious denomination shall not overlap unless one school limits its enrollment to pupils of the same sex and the other school limits its enrollment to pupils of the opposite sex or admits pupils of both sexes.”

The problem of overlapping attendance areas was the key issue in St. Augustine Sch. v. Evers, No. 17-2333 (Oct. 11, 2018).  In St. Augustine, the St. Augustine school, a self-described private Catholic school, applied for transportation for its students.  However, the Friess Lake School District denied St. Augustine’s request, citing § 121.51(1) because there was already another Catholic school in the relevant attendance area.  Wisconsin’s Superintendent of Public Instruction, Tony Evers, subsequently upheld the decision.  St. Augustine and an affected family then filed suit against the school district and the Superintendent arguing that the decision violated their First Amendment rights under both the Free Exercise Clause and the Establishment Clause.

The Seventh Circuit Court of Appeals ultimately concluded that the decision to deny transportation for St. Augustine students was not a violation of the First Amendment.  The court first tackled the argument that St. Augustine was being denied a public benefit on account of religion.  While the language of § 121.51(1) expressly places transportation limits in situations involving overlapping attendance area of schools “with the same religious denomination,” the court, however, looked to the Wisconsin Supreme Court’s State ex rel. Vanko v. Kahl, 52 Wis. 2d 206 (1971) decision that interpreted this phrase to mean “all private school affiliated or operated by a single sponsoring group, whether such a school operating agency or corporation is secular or religious.”  For example, under the backdrop of the Vanko decision, just as a public school district is not responsible for providing transportation to two Catholic schools, a public school district is not responsible for providing transportation to two French International Schools.  Therefore, because the Vanko decision interprets § 121.51(1) to apply equally to both secular and religious schools, the court concluded that the statute was neutral and generally applicable; thus it is not a violation of the First Amendment’s Free Exercise clause.

The court then addressed St. Augustine’s argument that the Superintendent had violated the First Amendment’s Establishment Clause by probing too deeply into St. Augustine’s religious affiliation.  However, the court rejected this theory as well, citing St. Augustine self-description as a “Roman Catholic” school on its website and other readily available materials.

The St. Augustine decision provides an important reminder of the responsibilities that public school districts have for transporting private school pupils and the scope of those responsibilities.  Public school districts should ensure they are providing transportation for all of those students for which it is required, but should be aware of overlapping attendance areas for both religious and secular schools.

For questions regarding this article, please contact the author, Attorney Colin M. Lane (email:; telephone: 844.626.0909), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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