2023 Wisconsin Statutes & Annotations
Chapter 121 - School finance.
121.51 - Definitions.
121.51 Definitions. In this subchapter:
(1) “Attendance area" is 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. If the private school and the school board cannot agree on the attendance area, the state superintendent shall, upon the request of the private school and the board, make a final determination of the attendance area. The attendance areas 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.
(3) “School board" has the meaning designated in s. 115.001 (7) and includes any governmental agency transporting children to and from public schools.
(4) “School bus" has the meaning designated in s. 340.01 (56).
History: 1975 c. 120; 1983 a. 189 ss. 185, 329 (17); 1983 a. 512; 1989 a. 31; 1995 a. 27 s. 9145 (1); 1997 a. 27.
The provision for the transportation, at public expense, of students to and from private schools on an attendance area basis is constitutional. State ex rel. Vanko v. Kahl, 52 Wis. 2d 206, 188 N.W.2d 460 (1971).
For purposes of sub. (4) [now sub. (1)], and in the absence of fraud or collusion, when a religious school demonstrates by its corporate charter and bylaws that it is independent of, and unaffiliated with, a religious denomination, further inquiry by the state would violate article I, section 18, of the Wisconsin Constitution. Holy Trinity Community School, Inc. v. Kahl, 82 Wis. 2d 139, 262 N.W.2d 210 (1978). But see St. Augustine School v. Taylor, 2021 WI 70, 398 Wis. 2d 92, 961 N.W.2d 635, 21-0265.
In determining whether schools are “affiliated with the same religious denomination" under sub. (1), the state superintendent is not limited to consideration of a school's corporate documents exclusively. In conducting a neutral and secular inquiry, the state superintendent may also consider the professions of the school with regard to the school's self-identification and affiliation, but the state superintendent may not conduct any investigation or surveillance with respect to the school's religious beliefs, practices, or teachings. St. Augustine School v. Taylor, 2021 WI 70, 398 Wis. 2d 92, 961 N.W.2d 635, 21-0265.
The Wisconsin statutes do not permit a finding of affiliation under sub. (1) based on a public official's assessment of how close in doctrine two sectarian schools may be. However difficult it may be, that decision must be made on neutral and secular grounds. The state superintendent may not delve into the nuances of the religious differences that pervade our country and withhold state benefits for reasons that can be tied to the religious preference of the disfavored group. Yet that is what reliance on the label “Catholic" entailed in this case, even if only modestly. Given the fluidity of religious labels and this country's firm commitment to personal choice and religious diversity, it may be impossible to decide that two entities are affiliated by looking solely at the fact that they both use the same label. Moreover, the state superintendent was not entitled to accept the private school'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. Neither representation was more or less important to the private school's self-identification. St. Augustine School v. Underly, 21 F.4th 446 (2021).
First Amendment-Based Attacks on Wisconsin “Attendance Area" Statutes. Woessner. 1980 WLR 409.
