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United States Supreme Court rejects appeal to hear religious liberty concerns in Catholic school busing case

The United States Supreme Court has denied an appeal in a case regarding whether a Catholic school in Wisconsin was discriminated against when a school district prohibited it from participating in a transportation program.

In an order released Monday morning, the high court denied a petition to review (writ of certiorari) the case of St. Augustine School et al. v. Underly, Jill, et al., adding that Justice Amy Coney Barrett “took no part in the consideration or decision of this petition.”

Although the court’s refusal to hear the appeal leaves in place a decision that was in favor of the Catholic school, some believe that additional religious liberty issues have been left unresolved.

In 2016, the Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit against Superintendent of Public Instruction Tony Evers (who is now the governor of Wisconsin) and Friess Lake School District on behalf of St. Augustine and a group of parents.

State officials argued that students at St. Augustine were ineligible for public transportation access because another Catholic school was located in its “attendance area,” a term for the geographic region where a school’s students live.

WILL’s lawsuit argued that the officials wrongfully banned St. Augustine from the program because, while Catholic, the school was independent of the local archdiocese, whereas the other school in the attendance area was not.

“St. Augustine School is an independent religious school that aligns its teachings to the Catholic faith. It is operated by its independent board of directors and according to its own articles of incorporation and by-laws,” WILL explained in a 2016 press release. “Despite the Superintendent of Schools for the Archdiocese confirming in writing that St. Augustine is not affiliated with the Archdiocese, Friess Lake and Superintendent Tony Evers disagree.”

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Although initially the lawsuit was defeated at the district court level in 2017 and again at the appeals court level in 2018, the Supreme Court vacated the ruling in 2020 due to the high court ruling in Espinoza v. Montana Department of Revenue.

In Espinoza, the Supreme Court ruled 5-4 that religious schools can qualify for a state tax credit program even when the state constitution explicitly bans public aid to religious entities.

Last December, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled that the lower court was wrong to side with the state, overturning a lower court decision and remanding the case for further proceedings.

Seventh Circuit Judge Diane Wood authored the panel opinion, concluding that “we can find no reason why the state was entitled to accept St. Augustine’s self-characterization as Catholic, while at the same time to reject its vociferous insistence that its understanding of what it means to be Catholic is significantly different from that of the diocesan schools.”

“With the benefit of the guidance we received from the Wisconsin Supreme Court, we conclude that it was error to rule for the state,” added Wood.

In March, WILL filed an appeal with the Supreme Court, arguing that the Seventh Circuit panel opinion “did not resolve the core constitutional questions of religious liberty at stake in the case.”

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