After split reasoning on certified question, private-school busing lawsuit to return to 7th Circuit.

Byline: Michaela Paukner, mpaukner@wislawjournal.com

A lawsuit over busing requirements for private, religious schools in Wisconsinwill return to the Seventh Circuit Court of Appeals.

On Friday, the Wisconsin Supreme Court answered a certified question inSt. Augustine School v. Carolyn Stanford Taylor, a case that's gone up to the U.S. Supreme Court and back in the past five years.

In the latest chapter of the case, the Seventh Circuit asked the state Supreme Court how to determine whether two or more schools are private schools affiliated with the same religious denomination for purposes of Wis. Stat. 121.51. The statute says the attendance areas of private schools affiliated to the same religious denomination shall not overlap.

The state Supreme Court's 81-page documentanalyzingthe question included the majority opinion authored by Justice Ann Walsh Bradley, concurrences from Justices Brian Hagedorn and Pat Roggensack, and one dissenting opinion written by Justice Rebecca Bradley.

Majority: Superintendent may consider school's self-identification, not only corporate documents

The majority Justices Ann Walsh Bradley, Rebecca Dallet, Brian Hagedorn and Jill Karofsky concluded that the state superintendent is not limited to consideration of a school's corporate documents exclusively when determining whether schools are affiliated with the same religious denomination. The majorityopinion said the superintendent may also consider the school's self-identification and affiliation, but the superintendent may not conduct any investigation or surveillancewith respect to the school's religious beliefs, practices orteachings.

"(A)superintendent attempting to determine that a school is affiliated with a specific religious denomination may rely on any evidence ofaffiliation between the school and a denomination that does not violate the First Amendment and that does not inquire into the religious beliefs of the school or the denomination," Bradley wrote.

The opinion said the certified question's wording implied that corporate documents are neutral criteria, while a school's self-identification on its website and other state filings are not. However, Bradley said simply accepting a school's profession of affiliation or its filings with the state constitutes a neutral undertaking.

The case was remanded to the Seventh Circuit for further proceedings.

Hagedorn: 'Affiliated with' means mutual organizational relationship

Hagedorn agreed with the majority's...