In St. Augustine School v. Taylor, (WI Sup. Ct., July 2, 2021), the Wisconsin Supreme Court answered a certified question from the U.S. 7th Circuit Court of Appeals on how to apply a state statute regarding transportation aid to parochial schools. Under Wis. Stat. §§ 121.51 and 121.54, private schools can receive funding for transporting children to school, but in each attendance area only one school affiliated with each religious denomination can get funding. At issue in this case is how a court is to determine whether two Catholic schools in the same area are affiliated with the same denomination. The court concluded:
... [I]n determining whether schools are "affiliated with the same religious denomination" pursuant to Wis. Stat. § 121.51, the Superintendent is not limited to consideration of a school's corporate documents exclusively. In conducting a neutral and secular inquiry, the Superintendent may also consider the professions of the school with regard to the school's self-identification and affiliation, but the Superintendent may not conduct any investigation or surveillance with respect to the school's religious beliefs, practices, or teachings.
Justice Roggensack filed a concurring opinion arguing that whether both schools are "affiliated" with the Archdiocese of Milwaukee depends on whether there is a mutual organizational relationship between the schools and the Archdiocese.
Justice Hagedorn filed a concurring opinion, saying in part:
[A] "religious denomination" is an organizational entity, not a synonym for religious faith generally. Thus, when Wis. Stat. § 121.51(1) asks whether two schools are "affiliated with the same religious denomination," the question is not whether both schools share the same creed, but whether they are both affiliated with a particular kind of religious organization——a religious denomination.
Justice Bradley filed a dissenting opinion arguing that the provision denying benefits where two religious schools serve overlapping attendance areas is unconstitutional, saying in part:
On its face, § 121.51(1) denies a public benefit only to students attending religious schools in overlapping attendance areas. Private but secular schools located in overlapping attendance areas are not disqualified from receiving benefits on this basis. Denying an otherwise publicly available benefit on account of religious identity violates the First Amendment to the United States Constitution....
Any governmental overriding of a religious school's profession of independence from the "religious denomination" of another school ... would "require us to rule that some religious adherents misunderstand their own religious beliefs. We think such an approach cannot be squared with the Constitution or with our precedents, and that it would cast the Judiciary in a role that [courts] were never intended to play."
