FEDERAL COURT RULES ON TRANSPORTATION FOR PRIVATE SCHOOL STUDENTS
April 24, 2019
The Seventh Circuit Federal Court of Appeals issued a decision in favor of the Milwaukee Public School District’s (“MPS”) differentiation between access to school funded transportation for private school students and for some public school students residing in the City. In St. Joan Antida High School, Inc. v. Milwaukee Public School District, No. 18-1673 (7th Cir., March 25, 2019), the Court affirmed MPS’ rule which provides private school students with transportation to school only if the student resides more than one mile from the nearest public transportation stop, while providing some public school students with transportation if they reside more than two miles from the school they attend.
Milwaukee Public Schools (MPS) designates its public schools in one of two categories: either city-wide attendance schools (e.g., magnet schools which provide specialized program) or attendance-area schools, which do not provide specialized programming and are attended by students residing in the designated area of the City.
MPS utilizes the “city” option for student transportation under Section 121.54 of the Wisconsin Statutes, which incorporates both the City’s public transportation system and the District’s transportation system to provide student transportation. In implementing its transportation system, MPS rules provide that high school students, both public and private, receive free transportation if they live more than two miles from their school and more than one mile from a public transportation stop. However, high school students who attend a city-wide school receive transportation if they live more than two miles from the school they attend, regardless of their proximity to a public transportation stop. Private school students residing in the MPS district are provided transportation only if they reside more than one mile from the nearest bus stop and more than two miles from their school of attendance.
MPS also created a deadline for private schools to register students for public transportation. Private schools had to submit busing rosters to MPS by July 1st every year. MPS did not impose a roster requirement for public schools for purposes of transportation scheduling.
In 2016, St. Joan Antida High School, a private school in the City of Milwaukee, submitted a student roster to MPS requesting transportation for students attending the school. The roster contained 62 students the school contended were eligible for transportation under MPS policies. St. Joan updated its roster after the July 1 deadline to add an additional 6 students. MPS denied transportation requests for those 68 students because all of them resided within one mile of the nearest public transportation stop and, as for the late additions, they were not included in the roster by the deadline. St. Joan paid the students’ transportation costs for the 2016-2017 and 2017-2018 school years, totaling $178,640. St. Joan then sued MPS for reimbursement.
The Private School’s Claims
St. Joan argued that the MPS transportation policy violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, which requires all governmental entities, including a local public school district, treat all similarly situated persons alike without making distinctions based on protected characteristics. St. Joan argued the one-mile rule in the MPS policy violated this constitutional protection because it treated private school students differently than their public school counterparts who attended schools within the City but outside their attendance area. St. Joan also argued that the policy violated Wis. Stat. § 121.54, which requires public schools have reasonably uniform pupil transportation rules whether they attend public or private schools.
The Court’s Decision
The Court first had to determine whether MPS’ transportation rule, as applied to St. Joan’s School, a Catholic High School, was subject to a heightened level of scrutiny – known as “strict scrutiny” due to the rule’s interference with a fundamental right guaranteed by the U.S. Constitution; or, whether the rule did not infringe on any fundamental right and was therefore only subject to a low level of scrutiny – known as “rational basis review”. Under a strict scrutiny analysis, government action can only be confirmed if it is necessary and the least restrictive means of accomplishing a compelling government interest. Sustaining government action subject to strict scrutiny is an uphill battle for the government entity. Conversely, if subject to rational basis review, the government entity need only establish that its action bears a rational relationship to furthering a legitimate government interest. Under a rational basis review, the challenger to a particular government action has an uphill battle to successfully challenge such action.
The Court, reasoning that the rule did not impermissibly infringe on a fundamental right guaranteed by the Constitution, namely the right to direct one’s children’s education, as asserted by St. Joan, applied the deferential standard of rational basis review to MPS’ rule.
MPS asserted two legitimate interests for the one-mile transportation rule. First, MPS asserted that the policy helped to reduce overcapacity by providing access to special programs at schools located throughout the City that could be attended by students regardless of where they lived; and second, that it needed to reduce costs.
As for the first justification, the Court found that MPS had a legitimate interest in reducing overcapacity in its attendance-area schools. To do so required MPS to put more kids in city-wide schools and that it was rational to offer transportation to students attending city-wide schools in order to encourage attendance at those schools. St. Joan argued that, even if that justification were true, MPS did not have a rational basis justification for excluding students living more than a mile from a public transportation stop. However, the Court stated that was irrelevant. Under rational basis review, the district only needed to show a rational basis for the rule, not a basis for why it excluded some from its application. St. Joan also argued MPS did not show that overcrowding was actually an issue. However, the Court noted, rational basis review does not require conclusive support from evidence or empirical data to establish that the governmental interest is legitimate. Therefore, the Court found that concerns about school overcrowding provided a rational basis for the one-mile rule.
Similarly, the court found that pursuing cost-savings was a legitimate interest. Actions based on efforts to produce cost savings generally survive rational basis review so long as the classifications used in pursuit of those savings are not arbitrary. According to the Court, MPS spent roughly forty million dollars to provide busing in the 2016-2017 school year, and that as a result reducing the transportation budget was rationally related to the legitimate interest of cost savings. Despite MPS’ high transportation costs, the Court found that MPS could still rationally believe overcrowding and access concerns were worth it taking on the additional busing costs. However, MPS had no reason to take on those costs for private school students. Thus, paying more to expand transportation to schools that reduce overcrowding while not extending that benefit to schools less likely to reduce overcrowding is a rational distinction and balances the legitimate interests of addressing overcrowding concerns and budget concerns.
The Court did not decide whether the July 1 busing roster deadline passed Constitutional muster. The Court had concerns with how MPS actually applied its policy. St. Joan argued that MPS treated students who moved to Milwaukee after the deadline differently. For example, if two families moved to Milwaukee after the deadline, the family going to a public school could receive transportation, while the student going to a private school could not even if they met the other policy requirements. The court remanded the case back to the district court for further fact-finding on this issue, and ultimately to determine whether this deadline is too rationally related to furthering some legitimate interest, or purely arbitrary.
Punting on State Law Claims
The Court declined to analyze St. Joan’s claims under Wis. Stat. § 121.54. In so declining, the Court stated that there may have been a state law violation, but such state law violation would not render the policy unconstitutional. The state statute simply did not create a clear definition of reasonable uniformity to implicate constitutional protections. The Court believed Wisconsin courts, not federal courts should decide whether the policy violates Wisconsin law.
For questions regarding this article, please contact the author, Attorney Rick Manthe email: firstname.lastname@example.org; telephone: 844.626.0907), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.
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