well now that is a hotly disputed theological question which i am not prepared to answer and would not ask this court to consider we're not in the business of deciding theological i was right i went to a  you may proceed thank you may please the court wisconsin law provides that school districts must provide transportation to students attending private schools under certain circumstances but why is it has been targeted by the wisconsin supreme court says that private schools may not have overlapping attendance areas if they are affiliated or operated by a single sponsoring  this case is about whether our constitution permits school districts and the state superintendent of public instruction to use a religious test as opposed to secular considerations to determine that it's not the business of the courts to decide who is what but i would have thought that the answer is to simply take the school's word for it and indeed as a matter of wisconsin law that's what the wisconsin supreme court held in the trinity case and your approach seems to require a much greater degree of entanglement in the than nuts and bolts of the way the school has organized itself than what the state officials did the state officials said you say you're roman catholic that's good enough for us we're not going to question it we're not going to probe into it that's all there is to it so it seemed to me they the take your word for it approach is the one that keeps the courts the furthest away from any kind of inappropriate religious activity i think the problem here though is that the school district in the state superintendent of public instruction did not take saying augustine's word for st augustine said we are not part of the roman catholic the nomination well no we are  independent they did they didn't say that to the state authorities what what they said on their website and to the public is we are a roman catholic school we follow the roman catholic tradition st augustine is an independent and private traditional roman catholic school it says and the application says st augustine is an independent private catholic school so i don't see how they aren't just saying that but i think you can take a school's word for it but you have to take into account if you're going to take their word for it everything that the school had to say by now that inappropriate entanglement why why do you have to dig into the articles of incorporation and you do not know maybe the doctrine that's being taught in the classes is to prevent akin to is a pos it really greek orthodox i mean it seems to me that would be tire leean appropriate that would be entirely inappropriate but that's not what we're asking the state to do in this case in fact we're asking the state to take the schools word for it why don't you change the website what happened in the trinity case is they didn't make a change in organization and the supreme court of wisconsin said you can't look behind that that changes you know they are who they say they are that's it well i think the question then your honor i think would be how is it that st augustine would have to change its website because here are the facts so augustine years ago or thirty years ago you were not a website you would have somebody would probably go to your quarterly corporation and what do they say the articles of incorporation say that the school district is independent that it is standalone it is not part of the archdiocese of milwaukee it is not part of any order or other entity of the roman catholic church we told the price like school district that we were independent the fries like school district clearly understood that saint augustine it was claiming that it was catholic in a different way what they said in their letter of supreme or twelfth is that we don't care about that claim it said your claim that you are religiously distinct from saint gabriel's is and i quote your fight and not ours well that's right so you know it seems to me that's entirely appropriate it's it's quite possible for there to be a catholic school that's not associated with the archdiocese you know and again need their whole set set of questions that i don't want us to get into that you don't want us to get into if they recognize the pope and so on that's not our job but i think you you know that there's this difficulty in the record about whether you gave your articles of incorporation or just some just some other documents the name change documents to the state authorities to state authorities didn't look at them i think that's pretty clear the articles they just looked at public statements from the school i think if you look at the correspondence so you know augustine said we are independent it listed the way in which it operated independently from the catholic schools it's said that it enclosed its articles of incorporation now in the district court this is the defendant's claim when we never got the articles incorporation but if you look at the correspondence between the parties so you know augustine repeated lee told the defendant what those articles said and it represented that it was in closing them you know the letter that it sent but this is not there's a problem in the record there like to come back up and ask you maybe a couple of broader questions is it your position that it is unconstitutional for the state for any state here the state of wisconsin in any way to group religious institutions so it would be unconstitutional i take it in your view if there were an orthodox jewish school and a reformed jewish school and a sephardic jewish school to say we're going to have a jewish school and you would say i assume it's unconstitutional for there if there was a presbyterian church of the u s a school versus a united presbyterian church school that that can't be grouped even though they're both presbyterian and certainly not that you couldn't group protestant or even jellicoe schools in one group versus you know the episcopal in a different group so no matter how so each each evangelical congregation may feel that it's a distinct entity so every single one of those the state is in in no way allowed to group them together for busing routes or for anything else the state could group them together if they did so based upon some secular consideration that is if it could show that there is some legal managerial operational that love is a system all of that and they all have their own separate articles of incorporation then it seems to me that the only way the state could be grouping them together is by imposing a religious test on them but that's exactly what the it was constant supreme court in the vanko case of voided by saying no it's actually just a group so if you had well the example the district court gave was the montessori that if you had some other kind of  know let's say the noble network which is a network a private organization that runs charter schools in chicago suppose it decided well we're tired charter schools we're just going to run a network of private schools and they're going to be the noble network schools  so as i understand of wisconsin supreme court's position thank oh only one noble network school gets the busing the first one out of the box because it's the same organization right in what and so why not just one but at some level i guess what i'm trying to figure out is where do you want courts to be deciding who is a bona fide religious denomination decide that we're asking you to do the same thing that we are asking the school district and the state superintendent of public instruction to do and that is to accept our claims of religious description and there's a long tradition in our law if ports do not make religious decisions they do not decide whether someone who claims that their religion compels them to do a b or c is sincere or not course whether the belief is real i and so and so your honor when st augustine comes in and says we are independent and religiously distinct the appropriate response is not true the frys lake school district to say that's your fight not ours it's for the fry slake school district to accept what they say can and then you have a roman catholic church church roman catholic school that is not subject to archdiocese control we have one here the record is undisputed that saint augustine is not subject i say no my question to you again is can you have a roman catholic as to whether they are or not but once we started to not have to make that determination that my question to you is that you're claiming to be a roman catholic church or a school but you disclaim connection with the archdiocese that's right mr is going to like to take the conversation on slightly different terms the district court had before both a federal claim and a state to decided that it would not hear the state claim because it involved in its words a complex issue of state look and that it would not exercise supplemental jurisdiction but remand that to the state courts and it proceeded to determine the federal claim that sounds backwards to me it's because isn't it quite clear from the earlier two cases that the case in state court in the defendant's remove right the no one asked the district judge to stay the federal claims while the state claims were consulted patch not theory the judge clearly as i read his opinion i thought it was possible that you might have what he regarded as greater rights under the state law than under the federal law he was using kind of an employment evasion  smith approach to the federal law and if you got the transportation services that you want as a result of state law what do you care about federal law state law can do more the as i said many contexts that there may be some procedural differences between state and federal law such as the availability of attorneys fees but that doesn't mean that we wouldn't deferred it was steak or forearm right but what the federal claim would would still exist it's certainly i think i would concede that it was certainly peak possible for the federal district judge it would be possible for this court to to decide  to vacate the judgment to remand the case to district court with instructions to stay the federal claim while the state law claim proceeds and that may very well decide the case although i don't think it would eliminate the federal claim i see my w me like you're asking us to give the wisconsin supreme order a new advisory opinion about how they have to interpret state law no we're not at all asking them we don't think that this court should pass upon the state law claim at all what is  before this court is the federal law claim that whether or not if if if state statutes actually authorize the state it was the the court said wisconsin to use a religious test to decide affiliation that anything to do with one thousand nine hundred three they and they knew precisely what the war required and in fact in fact i think they in saying that this is your fight and not honors they injected themselves right in the decided they were trying to stay out as much as possible by saying that i really feel for them from a qualified immunity standpoint well maybe you can address this morning rebuttal of i'd like to say that i will do that thank you all right all right we have  it please the court my name is kristen here and i represent the respondent the freeze like school district in this matter the freeze like school district complied with its obligations under the wisconsin statutes with respect to making a determination regarding st augustine proposed attendance area as the court has just addressed the district's decision making procedure was in line with the wisconsin supreme court's construction that they had given constrain the constitutionality of these statutory specifically the banker decision the earliest decision interpreted in this case from those consecrate in court maintained the nomination as a required consideration in determining whether to schools could have overlapping attendance areas within the same district so you're saying essentially that the first question is can they can they can the state group can the school district which is responsible for paying for student transportation  e kind of one organizing entity the right to one school or is the state required to have and a very large number of transportation or payments i understand this is about a fifteen hundred dollars per year payment for the transportation costs correct under the definitions in the statute a school district is not permitted to approve an attendance area for a private school if that proposed attendance area or multiple proposed attendance areas overlap for school systems operated with under the same system or religious schools affiliated or operated by either a single sponsoring group or denomination because that there is this messy issue is what's your position about the availability of those articles of incorporation for the school district officials first we would maintain that the articles of incorporation were not be the true original articles of incorporation for st augustine school which was actually incorporated as the new yoshio country day school were never presented to the district as part of the hard go ahead you interrupted that's fine your honor i was just going that even had the district received those articles of incorporation which do state that it was a believe an interdenominational religious school they would have been outdated and in conflict with the specific express representation that st augustine school put in its application for an attendance area which stated in spring of two thousand and fifteen in their april letter that it was a roman catholic school so it's not just the website it's the application itself presented to the school district that says roman catholic yes the letter that st augustine sent in there it was a one initial letter in march of two thousand and fifteen and then a follow up letter dated april twenty seventh of two thousand and fifteen and in that april letter seen augustine school specifically presented to the district that it is a catholic school so they didn't have to say that in that letter they hadn't wanted to they could have copied the language from the original artists articles of incorporation and said st augustine school is an interdenominational school they could go down whatever they wanted to but they wrote down that they were roman catholic correct they made a specific representation to this district one that the district this is a small school district it's seven square miles there's only two catholic schools in the district and then the public school district officials are generally have institutional knowledge regarding the nature of these two schools but i cited from that they had specifically represented to the district that they are operating a catholic school that that's what seen africans who are roman catholics their letter specifically says a traditional catholic school and that's not a roman catholic it's the district position that a representation of catholicism is catholicism and it's not the district's position as  accepting the school's representation at face value that it is a catholic school knowing that we have another catholic school whose attendance area comprises the entirety of the district that under the statute and as interpreted by the your other school describ saint augustine so so you would have a terrible problem if we rolled the historical clock back to the days of the obvious pope and the rome pope where you would have to figure out who was actually russian orthodox it would surprise me if somebody described themselves as anything but eastern orthodox or serbian orthodox or russian orthodox or whatever i don't know that they call themselves catholic without further on the banco decision which was very clear in discussing the various organizations of the jesuits first somebody else thank you yes in their discussion in banco the court discussed the concept of different organizing entities under the catholic faith who may or may not operate multiple schools within a very various ministers own and the courts description and the vanko decision was that i don't i believe that there could be a question as to whether in other cases not germane to the facts of this case whether those cases result every possible question as  private schools are operated by different religion in this case and we believe that we have held that constitutionality of this statute by applying it in the way that the wisconsin supreme court had construed it to be constitutional well of course obviously you're not going to take the position that there was a big issue under state law because you're defending what the school district did so i mean it seems to me are essentially saying we're comfortable with our defense obviously if the district judge or your o in this instance based on an eye in this instance based on the nature of the appellant's first amendment claims under free exercise and the establishment clause given the potential ramifications of that  decision we felt that federal judges or a federal judge would be better suited to decide the section nine hundred eighty three claims we do not object to the district court remanding the state the state questions back to state court have complied with the states and statutes and that the other the federal court or the state court could make that determination but there were additional claims that were brought with this we believe that in following the stage the trench the first amendment free exercise cla it please the court my name is laura varial here representing the wisconsin state superintendent of public instruction in his official capacity i think it's important for us to first realize how the state superintendent became involved in this case st augustine school and the freeze lake school district jointly asked the state superintendent to review the case because they could not decide on an attendance area under state law and administrative code he asked both parties to submit all the information they wanted submitted and he reviewed the information in accordance with the known statute and case law by the way the information submitted by st augustine did not include the original articles of incorporation for the no show country christian school and in fact everywhere that was ever referred to as the articles of incorporation what was submitted was the articles of mange name change that just changed the name to st augustine school week the appellant the parents are not incorporation or public documents sharpened wisconsin they are still court could've taken tradition orders article didn't have to be submitted well according to the rules that govern appeals at the state superintendent level we ask her you to submit your evidence and we look at over and we decide based on that so so actually this is not uncommon i mean public documents are regularly submitted in court in response to discovery requests are submitted in immigration proceedings and if if the parties have the responsibility of scouring the public record it's not usually the responsibility of the public official to go out and rescale our the record to see if the parties missed something correct we did know that the state superintendent did not believe he should be making further inquiries he did not believe that he should be scouring making open records requests of other state agencies for documents that they possessed he didn't feel it was necessary that the party submitted what they wanted looked at they submitted their mini briefs their positions and that is what he made his decision and so is the real issue in this case whether the wisconsin statute one twenty one point fifty one violates the free exercise clause because it doesn't permit for either transportation or reimbursement transportation expenses to every single denomination anybody you know every single school within its intended zone whether it's the two different kinds of lutherans or whether it's the two different kinds of presbyterians or whether apparently here it's the two different kinds of roman catholics or whether it's various types of jewish faith groups so it is are we really being asked to decide whether the state of wisconsin can limit the duty to provide transportation as it has done in one twenty one point fifty one i don't believe so your hon appellants have been very careful to not challenge the constitutionality of the statute this isn't as applied case and they've been very careful to only challenge how the state superintendent in the school district applied this case and the smith got to see it super state supreme court found the statute to be constitutional that's what the defendants were operating under when they appl outlaw and they had to the state superintendent had a duty to apply that law to this decision and that's what he did i mean it's a generalised as as construed and banco it's a generally applicable law i mean th was constant supreme court was very sensitive to the fact that you couldn't just single out religions for a lesser quality of transportation support so they went by my group so is it your position that the reason we're not worrying about the free exercise clause because it's a neutral and generally applicable rule as employment division against smith describes such things yes i believe it's neutral generally applicable it's a first come first serve and public schools are also treated to having an attendance area private schools are treated as having an attendance area that made a difference if  institutional knowledge and with letters that say we are a school operating in the traditional roman catholic church in the roman catholic tradition and calling themselves a traditional catholic school that if they send you a piece of paper whether outdated or not that says in one thousand nine hundred ninety one we were incorporated as an interdenominational school that that's all you can go by you must forget everything else that we've website right or their application and they're saying please recognize that we're a different brand of catholic we're very different we have the right and free exercise to pursue this brand of catholicism over this other br there's only one brand well maybe not so i want to go back though to the maybe it's not a problem in this case but there will be cases in which simply to apply the statute will put whether it's the state superintendent or the school district in the position of trying to decide where is there a line between to nominations i'm not qualified to say but you know maybe some people think there's only one roman catholicism period end of discussion maybe there are different approaches i'll just say that certainly in the many protestant sects or in islam there is so neither shia there's other things in judaism there are different schools and or different denominations so so here i mean what the school district said is as far as we know there is just one roman catholic and this is it so let me ask you this question suppose in a in a kinder and more wonderful world that we don't seem to live in st augustine and st gabriel said look we both have our own approach roman catholic but let's just create for this little tiny seven square mile school district one bus route and we'll have the buses pick up the kids to both schools and they'll they'll just be to drop off points with that violate the state statute i believe it would violate the state statute as written because it says shall not overlap so the fact that there are two drop off points in this bitty piece of land is fatal well i don't think it's the two drop off catholic schools in chicago as well and they were thinking is going to answer is i think that do not overlap however that doesn't mean that they didn't combine bus routes that picked up from similar places and then dropped off at similar places  i just want to state that this case there is no remedy that's available against the state superintendent in his official capacity as he is not a person under nine hundred eighty three for damages purposes and as this was appellate review type situation of quasi judicial review he there's no reason for injunctive relief and this should really have been brought as a two twenty seven point five to judicial review case because what they're really saying is we disagree with how you applied the law and the statutory scheme for that is to do it you just overview but instead they decided to bring federal constitutionality claims for the exact reason that they stated which is they wanted i gather from her remarks that your colleague thinks the state law is clear there's a disagreement between the school district and the district judge on that one is the view of the state of wisconsin the way i read the district decision the district court's decision is not that there's necessarily a problem with the way it was applied because he did go through so much of the analysis of the state law claims in order to analyze the federal law claims and he seemed to agree that the district and the state did do what they needed to do and therefore that's why there is no federal law claims that need to be decided it but he did say there could be a misapplication of the law so i think there was a slight distinction between i don't know what the state law is saying versus there's a areas of things that might get you into trouble others may how you have it is to quite responsible state court decisions trying to resolve really an tractable problem in our polity by keeping the state in the situation we're supplying services but stay away from the hot topic of religion right correct men who do it shown some sensitivity it definitely tried why don't we have one why should trust the state court to do the same if if we had gotten the first crack at this well i believe the state court should have reviewed the the application of the law under the practical reasons as to why one of those might be the other putting one side should know what the state courts in which i don't think you need to know what the state court says about this in order to resolve the constitutional issues i think the district court got it right when it said these are not me they did not violate the constitution the constitutional issues are disposed of now let the state court handle the stock market which is maybe we don't need to resolve the constitutional issues to resolve the case why i think that's clear by the remand of the state issues state court could resolve this whole case decide what who's going to get what bus transportation that's a yes but there would still be hanging out here the constitutional issues and we would prefer that the federal court decide whether or not there are there is your concern if a state court says no duty as you will or tend to say then that's the federal constitutional issue remains right not in the record however i do know that many states do you do the same kind of if you have if you are busing you bus to both private and public schools and then there are other states like missouri that say we're not bussing to private schools at all so but i mean this seems to be a fairly complicated in my choir here to get into areas of the work of discomfort yes but let me also add that although the context is quite different in other areas of the first minute religion clauses states regularly group denominations so for example for purposes of religious services in prisons they do it all the time now i'm not saying schools are like prisons although some students may disagree but the states have not thought that those practices were unconstitutional correct for the state to decide which school is truly catholic it would be inappropriate for the state to say the school stablished by the roman papacy is the one that we're going to recognize it would be inappropriate the state to say catholic is catholic and anyone who uses the roman catholic moniker is fries like put it in this case west of philly eight in a single school system but you're right if your principal though really does take us to the point  very expensive for the schools and i see no i don't have any trouble understanding why they wanted to do this whether they can do this obviously a different question but i think your approach means that for example every evangelical school within this little seven months square mile district either gets its own transportation or this fifteen hundred dollars a year paid over to the parents and for budgetary reasons this you know first come first serve approach probably has its attractions for the school district to say to five to st augustine school that you can't use the roman catholic would be true for the lutherans and the same thing would be true for every bit i'm just saying that you are taking the atomistic approach and it is that's why the question of the constitutionality of the state law which you did not raise is perhaps the real question here because there are always going to be borderline issues as to when somebody is within a denomination and when somebody has sufficiently distinguished itself or you have decided there can't be need to nominations then under your it can decide who is within a denomination not long as it does so on the basis of secular connections i just would read the articles it could be something else but  can't be a religious affinities it can't be a theological judgement the catholic is catholic it's not making a theological judgement it's just saying you said you were catholic why didn't you put something different your application why couldn't you get you know tomorrow because person because i think to say because you want to say you don't want to say in your application what your articles of incorporation say if you would just lifted that language from your own articles of incorporation and says st augustine is an independent private catholic school if instead of saying independent private catholic school you had lifted the phrase from your own articles of incorporation and said an independent private inter denominational school you would not be here today your clients would have saved a lot of money and the children would have gotten transportation services well i see them i don't want your own language in the application  respond of course you know my response would be that we said much more in our application we also said enlisted in detail the ways in which we are independent unconnected with the roman catholic nomination it seems to me what the defendants are doing here is they're saying we heard the word catholic and because we heard the word catholic we needn't listen to anything else trying they need to evaluate they can't evaluate anything else but they have to accept it as true right and it's judge ripple said this is a very delicate issue public policy to avoid the lemon versus kurtzman excessive entanglement which by the way is not the only part of the lemon test i'm not sure your theory is solid there but to avoid entanglement you can't look into all these things and yet you want you want your cake and eat it too you want this evaluation we do not want this evaluation they have to accept a claim of religious distinction they can't evaluate it in they can't decide to ignore it because if they decide to ignore it if they say that your claim that you are religiously distinctive is your flight and not ours they are effectively deciding that they deciding that in fry sleigh it's st gabriel is that gets to be the church that operates in the catholic tradition and to say that we are not to use the word catholic or to sort of impose a religious judgment ok i think we have your point you have said that before so thank you very much thanks to all counsel we will take this case under