In the

United States Court of Appeals 

For the Seventh Circuit ____________________ 

Nos. 22-2786 & 22-2846 

ST. AUGUSTINE SCHOOL, et al., 

Plaintiffs-Appellants/Cross-Appellees, 

v.

JILL UNDERLY, et al., 

Defendants-Appellees/Cross-Appellants. 

____________________ 

Appeals from the United States District Court for the

Eastern District of Wisconsin. 

No. 2:16-cv-00575 — Lynn Adelman, Judge. 

____________________ 

ARGUED MARCH 31, 2023 — DECIDED AUGUST 14, 2023 

____________________ 

Before EASTERBROOK, RIPPLE, and WOOD, Circuit Judges. 

WOOD, Circuit Judge. This long-running case arose in 2015, 

when Amy and Joseph Forro, whose three children attended 

St. Augustine School, a self-identified Catholic school in Hartford, Wisconsin, requested transportation benefits from the 

State of Wisconsin. Wisconsin provides such benefits for parents who send their children to private sectarian schools. See 

Wis. Stat. § 121.54. This time, however, the responsible school 

district and the state superintendent of public instruction (the 
2 Nos. 22-2786 & 22-2846 

Superintendent) denied the parents’ request because the state 

was already providing transportation benefits to St. Gabriel, 

another Catholic school operating in the same area. In so doing, the state authorities were attempting to follow a Wisconsin law that stipulates that only one school from a single organizational entity in each “attendance area” may qualify for 

benefits. See Wis. Stat. § 121.51. But the links between St. Augustine and St. Gabriel were only skin-deep. Although they 

both proclaim an affiliation with Catholicism, the two schools 

are not affiliated with one another in other significant ways. 

This fact led St. Augustine and the Forros to sue for benefits 

they believe were wrongfully withheld. (Unless the context 

requires otherwise, we refer to the plaintiffs collectively as the 

Forros.) 

Several years of litigation ensued, including a trip up and 

back from the U.S. Supreme Court, St. Augustine School v. Taylor, 141 S. Ct. 186 (2020) (mem.), two published opinions from 

this court, St. Augustine School v. Evers, 906 F.3d 591 (7th Cir. 

2018) (St. Augustine I), and St. Augustine School v. Underly, 21 

F.4th 446 (7th Cir. 2021) (St. Augustine IV), cert. denied, 142 S. 

Ct. 2804 (2022) (mem.), one nonprecedential disposition from 

this court, St. Augustine School v. Taylor, No. 17-2333, 2021 WL 

2774246 (7th Cir. Feb. 16, 2021) (St. Augustine II), and a published opinion from the Supreme Court of Wisconsin, St. Augustine School v. Taylor, 2021 WI 70 (St. Augustine III). After all 

that, the Forros were vindicated. In St. Augustine IV, with the 

benefit of the state supreme court’s authoritative interpretation of the relevant state law in St. Augustine III, we concluded 

that the Superintendent’s denial of transportation benefits violated Wisconsin law, because it rested on an improper methodology for determining affiliation between two schools of 

similar faith. The case is now back before us again. All that is 
Nos. 22-2786 & 22-2846 3

left to decide is whether the district court erred in the remedies it imposed based on this confirmed state-law violation. 

Seeing no reversible error, we affirm.

I 

We are concerned with the State of Wisconsin’s statutory 

scheme for providing transportation benefits to students who 

attend private schools. See Wis. Stat. §§ 121.51, 121.54. This is 

a topic that both we and the Supreme Court of Wisconsin have 

explored carefully, as the history we have just reviewed illustrates. We provide further details here.

A 

Wisconsin law requires local school districts to provide 

transportation benefits to private schools, see Wis. Stat. 

§ 121.54, but it sets limits on that obligation. Pertinent here, in 

each geographic attendance area, only one school “affiliated 

with the same religious denomination” may claim those benefits. See Wis. Stat. § 121.51. To avoid a possible constitutional 

problem if only religiously affiliated schools were restricted, 

the Supreme Court of Wisconsin years ago interpreted Wis. 

Stat. § 121.51 more broadly, so that it applies to “all private 

schools affiliated or operated by a single sponsoring group, ... 

secular or religious.” State ex rel. Vanko v. Kahl, 52 Wis. 2d 206, 

215 (1971). The law contemplates that a second school associated with any group, secular or sectarian, is not entitled to this 

benefit; it goes only to the first applicant. Again hoping to 

avoid constitutional problems, the state supreme court has 

also clarified that the inquiry into religious affiliation must be 

limited, lest the state cross the line into improper entanglement with religious matters. The school district, and ultimately the Superintendent, must take a school’s self-
4 Nos. 22-2786 & 22-2846 

representations, articles of incorporation, and bylaws at face 

value. See Holy Trinity Community School, Inc. v. Kahl, 82 Wis. 

2d 139, 157–58 (1978). 

St. Augustine School is a private “Traditional Catholic” 

school that previously was located within the Friess Lake 

School District, though a recent district consolidation has

placed it in the Holy Hill Area School District. Because Holy 

Hill is a successor in interest to Friess Lake, this consolidation 

has no effect on the issues before us. In 2015, St. Augustine 

and the Forros applied for transportation benefits for the three

Forro children. State law permits those benefits to be either inkind or financial, and this case has focused on the latter option. The parties agree that the cost of those transportation 

benefits is $1,500 per year. Friess Lake denied the request because in its view there was already a Catholic school, St. Gabriel School, operating in the same attendance area and receiving transportation benefits.

The Forros appealed the denial to the Superintendent

(Tony Evers at the time, now Jill Underly). St. Augustine argued that, unlike St. Gabriel, it is not affiliated with the Archdiocese of Milwaukee and it follows a different religious curriculum. In essence, it disclaims the existence of any common 

sponsoring group. Without such a common group, the Forros’ 

request for benefits should have been granted. The Superintendent concluded, however, that the two schools were both 

affiliated with Roman Catholicism. In doing so, he relied on 

each school’s self-identification as reflected on its website and 

did not probe below each one’s statement that it was Roman 

Catholic. Based on that methodology, he denied the appeal. 

The Forros then brought this lawsuit.
Nos. 22-2786 & 22-2846 5

B 

Since then, the case has been before numerous courts. In 

order to place the issues now before us in context, we need to 

go back to basics. We begin by recalling the distinction between a legal claim and a theory supporting relief (what the 

common law used to call a cause of action). A claim is the set 

of operative facts that produce an assertable right in court and 

create an entitlement to a remedy. A theory of relief is the vehicle for pursuing the claim; it may be based on any type of 

legal source, whether a constitution, statute, precedent, or administrative law. The specific theory dictates what the plaintiff needs to prove to prevail on a claim and what relief may 

be available. One lawsuit may raise multiple claims, and each 

claim may be supported by multiple theories.

Those concepts play a major role in this appeal. The Forros 

filed suit in 2016 against the school district and the Superintendent in state court pursuing a single claim, in the sense of a 

common nucleus of operative fact. Simply put, they wanted 

transportation benefits for their children. They supported that 

claim with several theories, some premised on state law and 

others premised on the Religion Clauses of the First Amendment. By way of relief, they asked for a declaratory judgment, 

damages, injunctive relief, costs and attorneys’ fees, and any 

further relief that might be appropriate.

As parties normally do, the Forros advanced their federal 

theories through 42 U.S.C. § 1983, which creates a private 

right of action against every state actor who has deprived a 

person of rights secured by the federal constitution or laws. 

They asserted that their rights under both the Free Exercise 

Clause and the Establishment Clause of the First Amendment

had been violated. To show that the school district and 
6 Nos. 22-2786 & 22-2846 

Superintendent had impermissibly infringed on their right to 

free exercise, the Forros had to show that the state actors had

“burdened [plaintiffs’] sincere religious practice pursuant to 

a policy that is not ‘neutral’ or ‘generally applicable.’” Kennedy 

v. Bremerton School Dist., 142 S. Ct. 2407, 2422 (2022) (quoting 

Employment Division v. Smith, 494 U.S. 872, 880 (1990)). 

As for the Establishment Clause, the Forros tried to prove 

a violation based on the state’s alleged preference for one 

form of Catholicism over another. See Board of Education v. 

Grumet, 512 U.S. 687, 703 (1994) (“[G]overnment should 

not prefer one religion to another, or religion to irreligion.”).

When this litigation began, the Forros thought that they 

needed to show that the state policy lacked a “secular legislative purpose”; that the “primary effect” of the policy “advance[d] or inhibit[ed] religion”; or that the policy “foster[ed] 

‘an excessive government entanglement with religion,’” following Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971) (quoting Walz v. Tax Commission, 397 U.S. 664, 674 (1970)). By now, 

however, Lemon has been abrogated by the U.S. Supreme 

Court. See Kennedy v. Bremerton School Dist., 142 S. Ct. 2407, 

2427–28 (2022). We mention it here only because its approach 

to proving an Establishment Clause violation shaped the Forros’ original pleadings. The Forros also might have shown

that the defendants’ conduct was inconsistent with historical 

practices permitted by the Establishment Clause. See Town of 

Greece v. Galloway, 572 U.S. 565, 577 (2014). 

The Forros also raised state-law theories under Wisconsin’s common-law certiorari review and its Uniform Declaratory Judgments Act, Wis. Stat. § 806.04. “Certiorari is a mechanism by which a court may test the validity of a decision rendered by a municipality, an administrative agency, or an 
Nos. 22-2786 & 22-2846 7

inferior tribunal.” Ottman v. Town of Primrose, 2011 WI 18, 

¶ 34. Under common-law certiorari, a decision should be invalid if the municipality (or its equivalent) strayed outside its 

jurisdiction; used an incorrect theory of law; took an action 

that was “arbitrary, oppressive, or unreasonable and represented its will and not its judgment”; or if the evidence called

the decision into question. Id. at ¶ 35. Damages and injunctive 

relief are not available under this theory. See Coleman v. Percy, 

96 Wis. 2d 578, 588–89 (1980). Finally, under the Uniform Declaratory Judgments Act, the Forros could have established 

their entitlement to a declaration of “rights, status, and other 

legal relations” and any supplemental relief, including damages or an injunction, deemed “necessary or proper” based on 

that declaration. Wis. Stat. § 806.04. 

As we said, the Forros initially filed this case in state court, 

but the defendants removed it to federal court because the 

section 1983 theories raised federal questions. See 28 U.S.C. 

§ 1441. The district court had subject-matter jurisdiction over 

those federal questions, see 28 U.S.C. § 1331, and supplemental jurisdiction over the state-law theories, see 28 U.S.C. 

§ 1367. In June 2017, the district court granted summary judgment to the defendants on the federal-law theories. With respect to the Free Exercise Clause, the court reasoned that 

“plaintiffs have not met their burden to produce evidence 

from which a reasonable trier of fact could conclude that the 

defendants either have treated or would treat such secular 

schools differently”; therefore, plaintiffs could not show that 

Wis. Stat. § 121.54 was applied in a manner that was not neutral or not generally applicable. As for the Establishment 

Clause, the Forros had attempted to show that the school district and Superintendent had impermissibly entangled themselves with religious matters. The district court was not 
8 Nos. 22-2786 & 22-2846 

persuaded. It found to the contrary that there was no evidence 

of “any participation in, supervision of, or intrusive inquiry 

into religious affairs.” Having resolved both federal-law theories in defendants’ favor, the court relinquished supplemental jurisdiction over the state-law theories on the ground 

that they “raise[d] a novel or complex issue of State law.” See 

28 U.S.C. § 1367(c)(1). 

After a case is returned to state court on remand from a 

federal district court, Wisconsin law allows a party “within 

one year ... , [to] make appropriate motion for further proceedings.” Wis. Stat. § 808.08. Plaintiffs chose not to file anything in state court, but they did appeal the district court’s decision and final judgment, thereby keeping the federal case 

alive. On appeal, the court of appeals has jurisdiction over the 

entirety of the “appealable order.” Fed. R. App. P. 3(c)(4). “An

appellant may designate only part of a judgment or appealable order by expressly stating that the notice of appeal is so 

limited,” but “[w]ithout such an express statement, specific 

designations do not limit the scope of the notice of appeal.” 

Fed. R. App. P. 3(c)(6).1

Here, the Forros filed a notice of appeal that covered the 

entirety of the district court’s decision and order granting 

summary judgment. There was no express statement limiting 

the notice of appeal to the federal theories. When we addressed that appeal in St. Augustine I, we considered all 

1 This is the current language of Rule 3. The Rule was amended in 2021 

to make clear that parties are under no obligation to designate every order 

of the district court that they wish to challenge on appeal; it is enough to 

designate “the judgment—or the appealable order—from which the appeal is taken.” Fed. R. App. P. 3(c)(1)(B). This change did not affect the law 

in this circuit, and so it has no effect on the Forros’ case.
Nos. 22-2786 & 22-2846 9

aspects of the district court’s final judgment, including the 

parts of the judgment that remanded the state-law theories to 

state court. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 

640 (2009) (“[T]he [district] court’s determination [under section 1367(c)] may be reviewed for abuse of discretion ... .” 

(quoting 16 Moore’s Federal Practice § 106.05, 106–27 (3d ed.

2009))). 

In that first round of appellate review, a majority of the 

panel agreed with the district court. St. Augustine I held that 

summary judgment was proper with respect to the Forros’ 

contentions that the state had violated the federal Free Exercise and Establishment Clauses. See 906 F.3d at 596, 598. We 

did not expressly rule on the district court’s relinquishment 

of supplemental jurisdiction, but there was no need to do so. 

The Forros had not convinced us to revive their federal-law

theories, and we had no reason sua sponte to reach the statelaw theories. 

Judge Ripple dissented in St. Augustine I, expressing concern about the correctness of treating denominational labels 

as conclusive. Such an inquiry, he believed, violates the First 

Amendment because it does not rely on the same neutral principles that would be used to evaluate a request from a secular 

school. The use of denominational labels also impinged on the 

personal religious beliefs of St. Augustine, in his view, by effectively compelling it and its families to change their denominational identification. See St. Augustine I, 906 F.3d at 604–06 

(Ripple, J., dissenting). That said, once St. Augustine I was decided, the plaintiffs were finished with federal court, save 

their ability to seek further review in the Supreme Court. 

They also had the option of pursuing their state-law theories 

in state court.
10 Nos. 22-2786 & 22-2846 

The Forros opted to seek further federal-court intervention. They first petitioned for rehearing or rehearing en banc; 

when those requests were denied, they petitioned the Supreme Court for a writ of certiorari. The Supreme Court issued 

that writ, vacated our judgment in St. Augustine I, and remanded the case to us for further consideration in light of Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020). 

See St. Augustine School v. Taylor, supra, 141 S. Ct. 186. 

On remand, as instructed, we took a careful look at Espinoza to see how it affected this litigation. See St. Augustine II, 

2021 WL 2774246, at *2. Espinoza involved an as-applied challenge to a Montana constitutional provision that affirmatively 

banned aid to sectarian schools (“no-aid provision”). Montana 

had developed a state scholarship program for students attending private schools, but the Montana Supreme Court dissolved the program because it thought that scholarships for 

students from religious schools would violate the no-aid provision. Espinoza, 140 S. Ct. at 2252–53. The Supreme Court 

held that this application of the no-aid provision amounted to 

“status-based discrimination,” because it “excluded religious 

schools ... [based] solely on religious status.” Id. at 2256. Eligibility for this government benefit required a school to “divorce itself from any religious control or affiliation,” thereby 

deterring and punishing “‘the free exercise of religion.’” Id.

(quoting Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 

S. Ct. 2012, 2022 (2017)). The Court summed up its ruling as 

follows. “A State need not subsidize private education. But 

once a State decides to do so, it cannot disqualify some private 

schools solely because they are religious.” Id. at 2261. It did 

not matter that the Montana Supreme Court had eliminated

the program altogether; the faulty reasoning used by the state 
Nos. 22-2786 & 22-2846 11

supreme court meant that the total dissolution could not “be 

defended as a neutral policy decision.” Id. at 2262. 

The central lesson we distilled from Espinoza was that a 

state law that deprives a person of a benefit on the basis of 

religion is unconstitutional. With that in mind, we decided 

that “the issue has boiled down to one dispositive question of 

state law: what methodology for determining affiliation is required under the relevant Wisconsin statutes?” St. Augustine

II, 2021 WL 2774246, at *2. Finding that the existing guidance 

from the Supreme Court of Wisconsin’s decisions in Vanko

and Holy Trinity did not resolve the point, we certified a question to that court, asking what materials a superintendent 

may use to determine religious affiliation. We also invited the 

court to re-formulate the question, if it deemed such a step to 

be appropriate. Id. at *3. 

The Supreme Court of Wisconsin accepted our request for 

certification and responded in St. Augustine III. There it held 

that “[i]n conducting a neutral and secular inquiry,” the Superintendent may examine the school’s corporate documents 

and “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.” 2021 WI 70 ¶ 5. A concurring justice suggested 

that the term “affiliated with” should be interpreted as involving “a mutual organizational relationship.” Id. at ¶ 70–71 

(Hagedorn, J., concurring). Shared faith would be relevant but 

insufficient, that justice indicated, to answer the question of 

affiliation, while “corporate documents, by-laws, and other 

types of organizational documents” would be more helpful. 

Id.
12 Nos. 22-2786 & 22-2846 

With the benefit of this guidance from the state supreme 

court, we reversed the 2017 judgment of the district court in 

December 2021. See St. Augustine IV, 21 F.4th at 449. We decided that the Superintendent’s decision “was not justified by 

neutral and secular considerations, but instead necessarily 

and exclusively rested on a doctrinal determination that both 

St. Augustine and St. Gabriel’s were part of a single sponsoring group—the Roman Catholic Church—because their religious beliefs, practices, or teachings were similar enough.” Id.

That is, the state had mistakenly assumed that shared faith 

was enough to establish affiliation. We explained that it was 

unnecessary “to reach any constitutional issue in this case”; 

rather, “it [was] enough to decide whether the Superintendent properly applied Wisconsin law ... .” Id. at 451. Since the 

Superintendent’s denial of St. Augustine’s transportation benefits violated state law, and state law as properly construed 

entitled the Forros to the transportation benefits they had 

been seeking all along, we remanded to the district court to 

craft a remedial order. Id. at 453. 

The effect of our remand to the district court was to revive 

all of the Forros’ theories, including those based on state law. 

That is because a relinquishment of supplemental jurisdiction 

is a reviewable decision. Just as importantly, supplemental jurisdiction does not self-destruct if the federal theories on 

which it depended are resolved or dismissed. Indeed, it is 

common for a court of appeals, in the course of reviving federal theories, to instruct a district court to reconsider a decision to relinquish jurisdiction over state-law theories. 

“[W]here all the claims relate to the same set of operative 

facts, we will ordinarily reinstate the state-law [theory] along 

with the reinstated federal [theory].” Edwards v. Snyder, 478 

F.3d 827, 832 (7th Cir. 2007). This is true even if parties have 
Nos. 22-2786 & 22-2846 13

begun litigating an issue in state court during the appeal. See, 

e.g., Bryan v. BellSouth Communications, Inc., 492 F.3d 231, 235 

(4th Cir. 2007). 

Here, unfortunately, the Forros have either overlooked or 

disregarded this aspect of supplemental jurisdiction. After St. 

Augustine IV (in which, we reiterate, the Forros prevailed on 

their claim for transportation benefits), they filed a petition for 

rehearing and/or for clarification. They contended that the 

state-law theories had vanished from the case because of the 

district court’s decision many years earlier to relinquish supplemental jurisdiction. They then reasoned that because there 

was no state-law theory validly before us in St. Augustine IV, 

there was also no such theory before the district court on remand. What they wanted, plainly, was an opinion discussing 

the merits of their federal-law theories, however superfluous 

that might have been in light of their victory through the statelaw route. The Forros presented this argument in a petition 

for rehearing, which we denied, and in a petition for writ of 

certiorari, which the Supreme Court denied. St. Augustine 

School v. Underly, 142 S. Ct. 2804 (2022) (mem.). 

Back before the district court on cross-motions for summary judgment, the Forros ignored state law. Instead, they

urged that there were no state-law theories before the district 

court and insisted that the only path to relief was a ruling on 

the federal-law theories. Exclusively as a matter of federal 

law, they asked for a declaratory judgment, a permanent injunction, and $9,000 in damages ($1,500 in transportation benefits per year, for six years, from 2015 to 2021).

The Superintendent and the school district, for their part, 

agreed with the Forros that there was no state-law theory 

properly before the district court and thus that no relief could 
14 Nos. 22-2786 & 22-2846 

be awarded on that basis. They argued in addition that because St. Augustine IV said there was no need to reach the federal constitutional issues in the case, the law of the case doctrine forbade the district court from relying on those theories. 

In short, the Superintendent and the district contended that 

the Forros’ own strategic decisions (i.e. their failure to oppose

the district court’s remand of the state-law theories or to pursue those actions in state court) had boxed them out of receiving any remedy. The Superintendent also renewed a motion 

to dismiss herself from the lawsuit on the ground that she is 

immune from suits for damages and is not engaged in an ongoing violation of federal law.

The district court shared the parties’ consternation about 

what exactly was before it. But it decided to interpret St. Augustine IV as “implicitly reinstat[ing] the plaintiffs’ state-law 

[theory].” Because the Forros made no argument for relief under state law, the district court concluded that they had 

“waived any entitlement to damages or injunctive relief under state law.” The district court further noted that damages 

and injunctive relief “appear to be unavailable in an action for 

common law certiorari under Wisconsin law.” Neither the district court nor the parties considered what relief might be 

available in an action under the Forros’ other state-law theories, in particular the Uniform Declaratory Judgments Act. 

But, noting that “the Seventh Circuit has already found that 

the defendants violated state law by refusing to approve St. 

Augustine’s attendance area,” the district court issued a declaratory judgment reflecting that ruling. At that point, St. Augustine filed a motion for $166,000 in attorneys’ fees.

As to the federal-law theories, the district court felt that it 

“must abide by [the Seventh Circuit’s] express determination 
Nos. 22-2786 & 22-2846 15

that a decision on the constitutional claims is unnecessary,” 

but it “express[ed] [its] view on how the constitutional claims 

would turn out” as an alternative ruling, should there be another appeal. As it had concluded in 2017, the court found no 

violation of either Religion Clause. That resolved the case except for St. Augustine’s fee petition, which the court held in 

abeyance pending the outcome of this appeal.

Having recounted that messy procedural history, we can 

at last turn to the merits of the parties’ arguments on appeal 

and cross-appeal. The Forros have appealed from the court’s 

denial of an injunction and damages, as well as its refusal to 

rule on their federal-law theories. The Superintendent has 

cross-appealed, arguing that the declaratory judgment should 

be reversed because there was no state-law theory to support 

it and that the law of the case prevents adjudication of the federal questions. The school district joins the Superintendent’s 

brief and adds a few arguments about how we should calculate damages if we decide that a monetary award is appropriate. 

II

Because this is an appeal and cross-appeal from a summary judgment decision, our consideration of the issues is de 

novo. Johnson v. Edward Orton, Jr. Ceramic Found., 71 F.4th 601, 

609 (7th Cir. 2023). On cross-motions, “we construe all facts 

and inferences therefrom in favor of the party against whom 

the motion under consideration is made.” Markel Ins. Co. v. 

Rau, 954 F.3d 1012, 1016 (7th Cir. 2020) (quoting In re United 

Air Lines, Inc., 453 F.3d 463, 468 (7th Cir. 2006)). 
16 Nos. 22-2786 & 22-2846 

A 

We begin with the issues raised by the Forros, who are attacking the district court’s decision to refrain from reaching 

the federal constitutional issues in this case. They take the position that the district court had an obligation to address all 

the theories they presented in support of their clam, even if 

one disposes of the claim in their favor. That is incorrect.

After the Supreme Court of Wisconsin issued St. Augustine 

III, the Forros filed their statement in accordance with Circuit 

Rule 52(b), taking the position that the now-clear violation of 

state law could not and did not resolve their case. See 7th Cir. 

R. 52(b) (requiring parties to state “their positions about what 

action this court should take” following a state court’s decision on a certified question). They doubled down on this 

stance in their petition for rehearing after St. Augustine IV. 

That petition urged that “there must be resolution of St. Augustine’s constitutional claims.” (emphasis in original). They 

reiterate that position now. They assert that the district court 

had a duty to reach the federal constitutional questions because nothing else was left in the case after the court remanded all the state-law theories in 2017. 

There are a number of flaws in the plaintiffs’ position. 

First, it fails to recognize the U.S. Supreme Court’s preference 

for constitutional avoidance, if a difficult question can be resolved either by reliance on state law, see Railroad Comm’n of 

Tex. v. Pullman Co., 312 U.S. 496, 501 (1941), or on statutory 

grounds, see Solid Waste Agency v. U.S. Army Corps of Eng’rs, 

531 U.S. 159, 174 (2001). “Prior to reaching any constitutional 

questions, federal courts must consider nonconstitutional 

grounds for decision.” Jean v. Nelson, 472 U.S. 846, 854 (1985)

(quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 99 (1981)). 
Nos. 22-2786 & 22-2846 17

“Constitutional adjudication” must be “unavoidable.” Specter 

Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944). 

Second, as we already have noted, the Forros are mistaken 

about the waxing and waning of a court’s supplemental jurisdiction. When jurisdiction over state-law theories has been relinquished but the federal basis of the suit is reinstated on appeal, those theories do not disappear. To the contrary, they 

can be and often are revived in federal court.

The latter is what happened in this case. After the state supreme court spoke, it became apparent that the Forros’ claim 

could be resolved on state-law grounds. See St Augustine IV, 

21 F.4th at 452. Those theories were always part of the case, 

but they ceased being novel or complex after the state court 

addressed them. That eliminated the reason for relinquishing 

jurisdiction over them.

The Forros contend that we must reach the federal constitutional issues because there is no sustainable state theory 

here, but that is plainly not the case. The action of the state 

supreme court is dispositive, and we already have concluded 

that the Forros are entitled to their transportation benefits as 

a matter of state statutory law. Beyond that, they have no right 

to demand that the court’s decision be based on one theory 

versus another. They complain that state law does not provide the same remedies as federal law would, but that too is 

incorrect. Wisconsin’s Uniform Declaratory Judgment Act 

grants courts the authority to issue relief supplemental to a 

declaratory judgment “whenever necessary or proper.” Wis. 

Stat. § 806.04. The Supreme Court of Wisconsin has confirmed

that both injunctive relief and damages are proper forms of

supplemental relief. See Town of Blooming Grove v. City of Madison, 275 Wis. 328, 336 (1957) (“Injunctive relief may be 
18 Nos. 22-2786 & 22-2846 

granted in aid of a declaratory judgment, where necessary or 

proper to make the judgment effective.”); F. Rosenberg Elevator 

Co. v. Goll, 18 Wis. 2d 355, 363 (1963) (“[W]here the court has 

entered a decree adjudicating the rights of parties and where 

the granting of relief in the form of damages may be predicated on that determination of rights, the court making the 

determination should also make that award of damages.”). 

This covers the full range of remedies, and so we have no need 

to consider what would happen if the state offered less than 

that. 

The Forros also contend that we must reach the constitutional questions because abstention operates differently for

cases brought under section 1983. They rely on language from 

Monroe v. Pape, where the Supreme Court rejected the idea 

that litigants must exhaust state remedies before suing under 

section 1983. 365 U.S. 167, 183 (1961) (“It is no answer that the 

State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one 

is invoked.”). The Court reiterated this point in Zinermon v. 

Burch, explaining that “overlapping state remedies are generally irrelevant to the question of the existence of a cause of 

action under § 1983.” 494 U.S. 113, 124 (1990).

But this language has nothing to do with the sequence in 

which a court reaches alternative theories for relief, nor does 

it address abstention. See Askew v. Hargrave, 401 U.S. 476, 478 

(1971) (per curiam) (abstaining from deciding a section 1983 

theory because the “state law [causes of action] ... , if sustained, will obviate the necessity of determining the Fourteenth Amendment question”); Martha A. Field, Abstention in 

Constitutional Cases, The Scope of the Pullman Abstention 
Nos. 22-2786 & 22-2846 19

Doctrine, 122 U. Penn. L. Rev. 1071, 1131–33, 1133 n.165 (1974) 

(finding no support for a civil rights exception to abstention). 

In cases like this one, where the non-constitutional theories

are sufficient to provide a plaintiff with all the relief she seeks, 

the Supreme Court has instructed lower courts to avoid constitutional adjudication. See Jean, 472 U.S. at 854–55 (holding 

that the governing statute provided adequate relief to petitioners and made it unnecessary to address the constitutional 

issue); see also Hsu ex rel. Hsu v. Roslyn Union Free School Dist. 

No. 3, 85 F.3d 839, 854, 862 (2d Cir. 1996) (noting the practice 

of avoiding constitutional questions and resolving the case in 

the plaintiffs’ favor based only on their argument under the 

Equal Access Act while avoiding theories for violations of the 

Free Exercise Clause, Free Speech Clause, and Free Association Clause). This was precisely what we did in St. Augustine 

IV. After determining that we could not complete the Espinoza 

analysis without a proper understanding of the applicable 

state law, we sought guidance from the state supreme court 

on that issue. Unlike the application of Montana law in Espinoza, which was incompatible with the Religion Clauses, the 

Wisconsin statute governing transportation benefits did not 

disadvantage the St. Augustine (or St. Gabriel) students. All 

were entitled to the benefits in question. This was enough to 

resolve the concrete dispute before the court, and so it was 

unnecessary to reach the constitutional issues. See St. Augustine IV, 21 F.4th at 451–52. 

The remaining question is what to do in light of the fact 

that the Forros unambiguously waived their right to relief under their state-law theories. If by so doing they hoped to force 

us to reach the federal theories, they were mistaken. We will 

not allow ourselves to be manipulated into constitutional adjudication in this manner; parties do not have the right to 
20 Nos. 22-2786 & 22-2846 

compel a court to write what would essentially be an advisory 

opinion on a theory that it did not need to reach. St. Augustine 

IV provided plaintiffs with a clear path to recovery that they 

chose to forego. Litigants are held to their choices, even when 

the consequences are harsh. We accordingly see no error in 

the district court’s decision to treat their requests for damages 

and injunctive relief under state law as waived and to issue 

only a declaratory judgment based on the findings of St. Augustine IV. 

B 

All that is left to resolve is defendants’ cross-appeal, their

renewed motion to dismiss, and a few additional arguments 

on the proper scope of the remedy. Looking first at the Superintendent’s cross-appeal, we conclude that there is no reason 

to disturb the district court’s declaratory judgment. For reasons already stated, St. Augustine IV reinstated the state-law 

theories. The district court thus had supplemental jurisdiction 

over them, and on that basis was empowered to issue its declaratory judgment. The Superintendent’s arguments that 

such reinstatement is improper disregard the law governing 

remands. Nor did action taken by the Forros have the effect 

of destroying the district court’s jurisdiction.

Next, we examine the Superintendent’s motion to dismiss. 

This was properly denied. The Superintendent attempts to invoke sovereign immunity, but her sovereign immunity defense was waived when she voluntarily joined in the removal 

to federal court. See Lapides v. Board of Regents, 535 U.S. 613, 

624 (2002) (holding that a state that joins in the removal of 

state-law claims to federal court waives its Eleventh Amendment immunity on those causes of action). There is no need to 

worry about possible damages or injunctive relief, because 
Nos. 22-2786 & 22-2846 21

the district court ruled in the Superintendent’s favor on those 

points and we are not disturbing that part of its judgment. For 

the same reason, we need not contend with the school district’s arguments about any limitations on the Forros’ entitlement to compensatory payments.

III

We AFFIRM the judgment of the district court. Its declaratory judgment remains in effect against the Superintendent 

and Friess Lake, now Holy Hill Area School District. The case 

is REMANDED so that the district court may decide what attorneys’ fees St. Augustine and the Forros should be awarded, if 

any, given the fact that they have prevailed only to the extent 

of obtaining declaratory relief under state law. The district 

court should determine their entitlement to costs in accordance with 28 U.S.C. § 1920. 
22 Nos. 22-2786 & 22-2846 

RIPPLE, Circuit Judge, dissenting. As this case has traveled 

its circuitous path, a regrettable analytical fog has progressively obscured the good faith and thoughtful attempts of all 

actors, judges and lawyers, to resolve this case. Today, in my 

view, despite its best efforts, the majority, impeded by this 

fog, further obscures the matter by drawing the wrong conclusions from this muddied procedural history and, in the 

process, by departing from the mandate of the Supreme Court 

of the United States dated July 2, 2020. I respectfully dissent. 

From the beginning of this litigation, the plaintiffs’ federal 

constitutional claims have been at the center of this case. The 

district court issued a decision and order that has been the basis of the subsequent appellate proceedings. That decision 

and order did two things. First, it determined that the plaintiffs’ state-law claims presented a “novel issue of state law, in 

that the existing Wisconsin cases d[id] not clearly answer the 

question” at issue, and for that reason it decided to relinquish 

supplemental jurisdiction over those claims pursuant to 

28 U.S.C. § 1367(c)(1).1 Second, the court granted summary 

judgment for the defendants on the federal constitutional 

claims brought under 42 U.S.C. § 1983.2

From that point on, the case has been litigated on federal 

constitutional grounds. Indeed, on review of the district 

court’s decision, in St. Augustine School v. Evers, 906 F.3d 591, 

596 (7th Cir. 2018) (St. Augustine I), we stated that “the 

1 R.41 at 9.

2 Id. at 17–24. Despite the majority’s suggestion to the contrary, see Majority Op. 8, the district court’s relinquishment of the state claims was not in 

any way premised upon the absence of a remaining federal question in the 

case.
Nos. 22-2786 & 22-2846 23 

constitutional claims” were “the heart of this case,” and a divided panel held that the defendants’ denial of transportation 

benefits to the plaintiffs did not violate either of the Religion 

Clauses of the federal Constitution. The majority today says 

that, in St. Augustine I, “we considered all aspects of the district court’s final judgment, including the parts of the judgment that remanded the state-law theories to state court.” Majority Op. 9. Although, as a technical matter, our appellate review can extend to the entirety of an “appealable order,” Fed. 

R. App. P. 3(c)(4), it overstates the situation to say that we 

considered the state-law claims in St. Augustine I. We made 

note of those claims once in recounting the procedural posture of the case and paid no further attention to them; nor 

have they been the focus of any subsequent litigation in the 

case.

After the plaintiffs lost their appeal before us, they petitioned for a writ of certiorari from the Supreme Court of the 

United States. The Court granted the petition, vacated our 

judgment in St. Augustine I, and remanded the case to us for 

reconsideration in light of its intervening decision in Espinoza 

v. Montana Department of Revenue, 140 S. Ct. 2246 (2020). From 

then on, the Supreme Court’s mandate has defined the limits 

of our authority in this case. Sibbald v. United States, 37 U.S. 

488, 492 (1838) (“When the Supreme Court have executed 

their power in a cause before them, and their final decree or 

judgment requires some further act to be done, ... [t]he inferior court is bound by the decree as the law of the case; and 

must carry it into effect, according to the mandate.”).

As the majority observes, “[o]n remand, as instructed, we 

took a careful look at Espinoza to see how it affected this litigation.” Majority Op. 10. We “distilled from Espinoza” the 
24 Nos. 22-2786 & 22-2846 

lesson “that a state law that deprives a person of a benefit on 

the basis of religion is unconstitutional.” Id. at 11. To apply 

that lesson in full to this case, we determined that we needed 

to understand better how Wisconsin Statute § 121.51(1) operated—specifically, “what methodology for determining affiliation is required” under that statute? St. Augustine School v. 

Taylor, No. 17-2333, 2021 WL 2774246, at *2 (7th Cir. Feb. 16, 

2021) (St. Augustine II). Accordingly, we certified to the Wisconsin Supreme Court the question of how exactly § 121.51(1) 

should be interpreted. See id. at *3. That action was, in my 

view, an appropriate measure to take in the course of fulfilling 

the mandate of the Supreme Court. Our certification order implied, without stating outright, that we understood the defendants’ actions in this case to be unconstitutional under Espinoza. But, in posing the question to the Wisconsin Supreme 

Court, we recognized that Espinoza opened up a broader issue 

that we needed to address: Was the Wisconsin statute itself 

unconstitutional, or had the defendants acted in defiance of 

both state law and the federal Constitution? If, in St. Augustine 

I, we had properly understood state law as permitting the inquiry that the superintendent had in fact made, “then we [had 

to] consider first whether Espinoza renders that state law invalid under the First Amendment’s Religion Clauses.” Id. at 

*2. If, on the other hand, we had misunderstood state law and, 

contrary to our earlier understanding, the superintendent had 

acted improperly under § 121.51(1), then the state law would 

not offend the Religion Clauses.

The Wisconsin Supreme Court’s answer (St. Augustine III) 

gave us the information needed to resolve that question. With 

its guidance in hand, we resumed proceedings and issued our 

decision in St. Augustine School v. Underly, 21 F.4th 446 (7th 

Cir. 2021) (St. Augustine IV). There, we stated that “all that 
Nos. 22-2786 & 22-2846 25

remains is for us to apply the instructions of the state supreme 

court to the facts of this case.” Id. at 448. In a regrettably ambiguous opinion that has confounded almost everyone involved in the case, we seemingly held both that the defendants 

had violated the state statute and the federal Constitution, id. 

at 448–49,3 and, simultaneously, that it was not “necessary to 

reach any constitutional issues in this case” and that, instead, 

it was “enough to decide whether the [defendants] properly 

applied Wisconsin law” to the plaintiffs, id. at 451. In other 

words, our decision seemed to say at once that the defendants 

violated the Constitution and that we refrained from deciding 

whether they violated the Constitution.

The majority concludes that it was at this moment that the 

plaintiffs’ state-law claims were revived sub silentio and that 

it became incumbent upon them to pursue these claims on remand in the district court if they wished to obtain relief. Majority Op. 12–13. The majority is mistaken on this point.4 I 

3 “[A]s a matter of state law [the superintendent] may not delve into ‘the 

school’s religious beliefs, practices, or teachings,’ because [that] inquiry 

would transgress the First Amendment prohibition against excessive entanglement with religious matters. We conclude that [the defendants’] decision in the case before us was not justified by neutral and secular considerations, but necessarily and exclusively rested on a doctrinal determination that both St. Augustine and St. Gabriel’s were part of a single sponsoring group ... because their religious beliefs, practices, or teachings were 

similar enough.” St. Augustine IV, 21 F.4th at 448–49 (citation omitted). 

4 It is doubtful that the plaintiffs’ state-law claims were automatically revived with our decision in St. Augustine IV. The majority says that relinquishment is “a reviewable decision” and that “it is common for a court 

of appeals, in the course of reviving federal theories, to instruct a district 

court to reconsider a decision to relinquish jurisdiction over state-law theories.” Majority Op. 12. This is true enough, but the majority fails to note, 
26 Nos. 22-2786 & 22-2846 

dissent primarily, however, because of a more fundamental 

mistake in our decision in St. Augustine IV, a mistake that has 

set the stage for the present state of confusion and the majority’s ultimate disposition of this appeal.5

first, that we nowhere reviewed in any express or implied terms the district 

court’s relinquishment decision and, second, that the familiar pattern of 

reinstatement unfolds in cases where the district court relinquished jurisdiction pursuant to § 1367(c)(3), not § 1367(c)(1). Put aside the distinction 

between subparagraphs (c)(3) and (c)(1), however, and notice that, even 

under the majority’s standard, we never affirmatively instructed the district court to reconsider its § 1367(c)(1) order. Compare Edwards v. Snyder, 

478 F.3d 827, 832 (7th Cir. 2007) (“[W]here all the claims relate to the same 

set of operative facts, we will ordinarily reinstate the state-law claim along 

with the reinstated federal claim.” (emphasis added)); Armstrong v. 

Squadrito, 152 F.3d 564, 582 (7th Cir. 1998) (“[B]ecause this decision reinstates Armstrong’s federal claims, on remand the district court should entertain supplemental jurisdiction over Armstrong’s state law claims.”); 

Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61, 79 (2d Cir. 2003) (expressly 

reinstating state-law claims). The majority cites no authority for the proposition that state-law claims relinquished pursuant to § 1367(c)(3) are automatically reinstated upon reinstatement of the federal claims—much less 

that this occurs after a § 1367(c)(1) relinquishment. The notion that these 

claims were reinstated sub silentio, and that the plaintiffs overlooked this 

procedural nicety at their peril, raises serious questions about notice and 

stands in tension with the basic purposes of our rules of procedure—“to 

secure the just, speedy, and inexpensive determination of every action and 

proceeding.” Fed. R. Civ. P. 1.

5 The Supreme Court denied the plaintiffs’ petition for writ of certiorari 

after St. Augustine IV. However, the rule is well-established that, given the 

intensely “discretionary nature of certiorari,” the “denial of certiorari does 

not indicate any view on the merits.” 16B Charles Alan Wright, Arthur R. 

Miller & Edward H. Cooper, Federal Practice and Procedure § 4004.1 (3d 

ed. 2012). Indeed, denial of certiorari does not have “any precedential effect,” Hopfmann v. Connolly, 471 U.S. 459, 460–61 (1985), and the Court’s 

mandate therefore remained unchanged.
Nos. 22-2786 & 22-2846 27 

With all respect to my colleagues, it is clear to me, in retrospect, that we erred in St. Augustine IV when we did not 

clearly and unambiguously rule on the constitutionality of the 

defendants’ actions. We were incorrect to say that “all that remain[ed]” was to apply the Wisconsin Supreme Court’s guidance. To the contrary, we remained subject to the Supreme 

Court’s mandate to reconsider our judgment in St. Augustine 

I in light of Espinoza; this obligation called for constitutional 

adjudication of the plaintiffs’ First Amendment claims, the 

claims we had adjudicated in St. Augustine I. The Court’s

mandate thus invited us to decide whether those claims had 

merit in light of Espinoza; acceptable responses to that mandate would have been “we affirm the district court’s grant of 

summary judgment on the plaintiffs’ federal-law claims” or 

“we reverse the district court’s grant of summary judgment 

on the plaintiffs’ federal-law claims.” Reversing the district 

court’s judgment on separate grounds was not an option that 

was available to us.

To be sure, our certification of a question of state law to 

the Wisconsin Supreme Court was, when made, consistent 

with the mandate: The issues before us called into question 

the constitutional soundness not just of the defendants’ particular actions but also of the state statute under which they 

claimed authority to act. Today’s decision assigns another 

purpose to the certification: Certification now becomes a device by which the Supreme Court’s mandate is avoided and, 

in the process, less than full relief is afforded to the plaintiffs. 

The Supreme Court has “consistently held that an inferior 

court has no power or authority to deviate from the mandate 

issued by an appellate court.” Briggs v. Pennsylvania R. Co., 334 

U.S. 304, 306 (1948). Having received the Court’s mandate, we 

“cannot vary it, ... or give any other or further relief; ... or 
28 Nos. 22-2786 & 22-2846 

intermeddle with it, further than to settle so much as has been 

remanded.” In re Sanford Fork & Tool Co., 160 U.S. 247, 255 

(1895). It “violate[s] the mandate ... to fail to decide questions” that we have been “directed ... to decide.” 18B Charles 

Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal 

Practice and Procedure § 4478.3 (3d ed. 2019).

We are obligated to adjudicate the plaintiffs’ federal constitutional claims. Implicitly, we already have taken a view on 

them in St. Augustine II and St. Augustine IV. But, because we 

have not clearly announced that, in light of Espinoza, the defendants’ actions violated the Religion Clauses of the Constitution, I would vacate our decision in St. Augustine IV, analyze 

and adjudicate the question of federal constitutional law, and 

remand the case to the district court to craft a remedy.

As the foregoing discussion makes clear, the majority’s 

concern with the principle of constitutional avoidance has no 

bearing here. Because the Supreme Court directed us to adjudicate the constitutional claims, we must do so.

I respectfully dissent.