### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 1673

S T

. J OAN A NTIDA H IGH S CHOOL I NC

., Plaintiff

‐ Appellant

,

v.

M ILWAUKEE P UBLIC S CHOOL D ISTRICT

, Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:17

‐ cv

‐ 00413

‐ JPS

— J.P. Stadtmueller

, Judge

.

____________________

A RGUED S EPTEMBER 18, 2018

— D ECIDED M ARCH 25, 2019

____________________

Before S YKES

, B ARRETT

, and S T

. E VE

, Circuit Judges

.

S T

. E VE

, Circuit Judge

. There have been several constitu

‐

tional challenges to school busing in Wisconsin over the years.

See, e.g.

, St. Augustine Sch. v. Evers

, 906 F.3d 591 (7th Cir. 2018);

Racine Charter One, Inc. v. Racine Unified Sch. Dist.

, 424 F.3d 677

(7th Cir. 2005). This is another. Our focus here is on the Mil

‐

waukee Public School District (“MPS”), private schools, and

the Equal Protection Clause.2 No. 18

‐ 1673

MPS offers free transportation to public

‐ school students

who attend certain schools outside of their neighborhoods.

All other students—including private

‐ school students—are

only eligible if they live farther than one mile from the nearest

public

‐ transportation stop. MPS also requires private schools

to submit a roster of students who need transportation by

July 1; it has no such requirement for its public schools. St.

Joan Antida High School, a private school, filed this lawsuit,

claiming that these restrictions violate the Equal Protection

Clause. This is especially so, St. Joan submits, because state

law requires MPS to transport students with “reasonable uni

‐ formity,” whether they attend public or private schools.

The district court granted summary judgment to MPS, and

St. Joan appeals. We affirm in part and reverse and remand in

part. Rational bases exist for the differences in busing eligibil

‐ ity, and so we affirm on that ground. But more work needs to

be done to resolve St. Joan’s challenge to the July 1 deadline,

and so we reverse and remand on that ground.

I. Background

Busing parochial schoolchildren with public funding used

to be considered unconstitutional in Wisconsin. See State ex

rel. Reynolds v. Nusbaum

, 115 N.W.2d 761, 770 (Wis. 1962). In

1967, however, the state held a referendum, which asked vot

‐

ers whether Wisconsin’s constitution should be amended to

permit state

‐ funded transportation of private and parochial

students. The voters decided it should, and the Wisconsin

constitution was amended. Wis. Const. art. I, § 23; see also

Cartwright v. Sharpe

, 162 N.W.2d 5, 8 (1968).

After the amendment, Wisconsin passed enabling legisla

‐

tion that requires school districts to provide transportation forNo. 18

‐ 1673 3

both public

‐ and private

‐ school students. See Wis. Stat.

§ 121.54. There are exceptions, though. The most notable (for

our purposes) is the exception for a school district operating

within a metropolitan area. Under § 121.54’s “city option,” a

school district in a city need not—but can decide to—provide

transportation if other public transportation is generally

available to schoolchildren. Id. § 121.54(1). Should a school

district exercise the city option, there must “be reasonable uni

‐ formity in the transportation furnished to pupils, whether they

attend public or private schools.” Id. § 121.54(1)(b) (emphasis

added).

MPS has exercised the city option, and it therefore offers

transportation to Milwaukee

‐ area schools. There are two pri

‐

mary types of public schools in the MPS system: (1) citywide

schools, which offer special courses, like language

‐ immersion

classes or International Baccalaureate® programs, and draw

from the entire Milwaukee area; and (2) attendance

‐ area

schools, which generally do not have such programs and

draw only from a particular neighborhood. MPS, at times,

designates certain students to attendance

‐ area schools out

‐

side of their neighborhoods—making the school a “nonat

‐

tendance

‐ area school” (as we will call it, for ease of reference).

The Milwaukee area, of course, also has private schools, like

St. Joan. MPS explains that, under state rules, St. Joan techni

‐ cally has an attendance area; but unlike public attendance

‐

area schools, St. Joan’s allotted area is the entire city of Mil

‐

waukee.

To ensure transportation to these schools, MPS devised

Policy 4.04. This lawsuit challenges two parts of that policy.

The first challenge concerns how MPS decides which stu

‐

dents are eligible for busing. Under § 2 of Policy 4.04, high4 No. 18

‐ 1673

schoolers may receive free transportation only if they live two

or more miles from their school and “more than one mile

walking distance from public transportation” (a restriction

we will call the “one

‐ mile rule”). 1 But § 5 provides more gen

‐

erous transportation benefits for high schoolers who attend

either citywide or nonattendance

‐ area schools. That section,

which is titled “Racial Balance, Modernization, Overload, and

Lack of Facility,” makes any student assigned to a school far

‐

ther than two miles from her home eligible for free transpor

‐ tation—regardless of the student’s proximity to public trans

‐ portation. In fewer words, citywide and nonattendance

‐ area

students are not subject to the one

‐ mile rule under § 5.

The second challenge is to MPS’s roster

‐ notification dead

‐

line. Under § 121.54(2)(b), private schools must submit the

names, grade levels, and residences of all students who are

eligible to receive busing to MPS by May 15. The provision

allows a school board to “extend the notification deadline,”

which MPS has done. Policy 4.04 states that private schools

must submit the roster by the third Friday in September. In

practice, however, the parties agree that MPS requires the ros

‐

ters by July 1. According to MPS, the deadline is necessary so

that it has sufficient time to arrange for the transportation of

eligible private

‐ school students before school starts. There is

no like roster

‐ notification deadline for public schools, MPS

says, because it has immediate access to the requisite infor

‐

mation needed for eligible public

‐ school students.

In 2016, St. Joan applied to MPS for student transportation

during the upcoming 2016–2017 school year. On May 14, 2016,

1 Policy 4.04 provides different transportation terms for elementary

schools. Those terms are not relevant to this dispute.No. 18

‐ 1673 5

St. Joan submitted its original roster, which included the

names of sixty

‐ two students relevant to this appeal; on Sep

‐

tember 29, 2016, it updated the list with six more relevant

names. What prompted St. Joan to update its roster is unclear,

but MPS refused to bus any of these sixty

‐ eight students. Each

of them lived within one mile of public transportation, and

the six later

‐ added students were disclosed after the July 1

deadline. St. Joan protested, but eventually covered transpor

‐

tation for the students. Doing so cost a total of $178,640 for the

2016–2017 and 2017–2018 school years.

Looking to recover that loss, St. Joan brought this action,

which also seeks injunctive and declaratory relief. St. Joan as

‐

serts two claims. The first claim alleges that Policy 4.04’s two

restrictions—the one

‐ mile rule and the July 1 deadline—vio

‐

late the Equal Protection Clause of the Fourteenth Amend

‐

ment. See 42 U.S.C. § 1983. The second claim, brought under

Wis. Stat. § 121.54, asserts that the restrictions violate Wiscon

‐

sin’s reasonable uniformity requirement. 2 After discovery, the

parties cross

‐ moved for summary judgment. The district

court granted MPS’s motion and denied St. Joan’s, reasoning

that Policy 4.04’s two restrictions had rational bases. 293 F.

Supp. 3d 813 (E.D. Wis. 2018). With the constitutional claim

2 St. Joan sued on its own behalf and on behalf of the sixty

‐ eight children’s

parents, from whom St. Joan received assignments of rights and claims.

The exemplar assignment in the record speaks only of a “full and complete

assignment of rights and claims under Wis. Stat. §§ 121.54 and 121.55”—

it does not address assignment of § 1983 claims. The parties do not address

this issue. It does not deter us, though, because the law generally holds

that schools have standing to assert the constitutional rights of parents to

direct their children’s education. See Runyon v. McCrary

, 427 U.S. 160, 175

n.13 (1976); Pierce v. Soc’y of the Sisters

, 268 U.S. 510, 535–36 (1925); Ohio

Ass’n of Indep. Sch. v. Goff

, 92 F.3d 419, 422 (6th Cir. 1996).6 No. 18

‐ 1673

dismissed, the district court declined to exercise supple

‐

mental jurisdiction over St. Joan’s state

‐ law claim. 28 U.S.C.

§ 1367(c)(3). St. Joan appeals.

II. Discussion

The Equal Protection Clause of the Fourteenth Amend

‐

ment guarantees that “no State shall

... deny to any person

within its jurisdiction the equal protection of the laws.” U.S.

Const. amend. XIV, § 1. This is “essentially a direction that all

persons similarly situated should be treated alike.” City of

Cleburne, Tex. v. Cleburne Living Ctr.

, 473 U.S. 432, 439 (1985).

Although the Equal Protection Clause does not endow a pri

‐

vate right of action, 42 U.S.C. § 1983 does for any constitu

‐

tional deprivation under color of state law. A municipal entity

acting under color of state law—like MPS—may be held liable

under § 1983 where it is responsible for the constitutional

deprivation. Monell v. Dep’t of Soc. Servs. of City of New York

,

436 U.S. 658, 694–695 (1978).

On appeal, St. Joan contends that the one

‐ mile rule and the

July 1 deadline violate the Equal Protection Clause. We first

determine how searching our inquiry must be—under either

strict

‐ scrutiny or rational

‐ basis review—before determining

whether the restrictions pass constitutional muster. Because

this case comes to us after summary judgment, our review is

de novo. Dunn v. Menard, Inc.

, 880 F.3d 899, 905 (7th Cir. 2018).

We can affirm on any ground supported by the record. Terry

v. Gary Cmty. Sch. Corp.

, 910 F.3d 1000, 1004 (7th Cir. 2018).

A. Standard of Scrutiny

An equal

‐ protection claim merits strict scrutiny, our most

exacting inquiry, only if the state

‐ crafted classification disad

‐

vantages a suspect class or “impermissibly interferes” with aNo. 18

‐ 1673 7

fundamental right. Segovia v. United States

, 880 F.3d 384, 390

(7th Cir. 2018). Otherwise rational

‐ basis review governs. 3 See

Armour v. City of Indianapolis, Ind.

, 566 U.S. 673, 680 (2012);

Hooper v. Bernalillo Cty. Assessor

, 472 U.S. 612, 618 (1985). This

case does not involve a suspect class, like race, and neither

education nor free transportation to school is a fundamental

right. Kadrmas v. Dickinson Pub. Sch.

, 487 U.S. 450, 457–62

(1988); Plyler v. Doe

, 457 U.S. 202, 223 (1982); San Antonio Indep.

Sch. Dist. v. Rodriguez

, 411 U.S. 1, 33–35 (1973); Racine Charter

One, Inc. v. Racine Unified Sch. Dist.

, 424 F.3d 677, 690 n.4 (7th

Cir. 2005).

St. Joan, however, invokes another fundamental right—

the right of parents to direct the education of their children.

That right does exist. In Pierce v. Soc’y of the Sisters

, the Su

‐

preme Court struck down a ban on parochial education and

held that the “fundamental theory of liberty” protects parents

from state attempts to “forc[e]” students into public school

‐ ing. 268 U.S. 510, 535 (1925); see also Troxel v. Granville

, 530 U.S.

57, 65 (2000). But the existence of that fundamental right, and

its potential implication here, is not enough to trigger strict

scrutiny. See, e.g.

, Harlan v. Scholz

, 866 F.3d 754, 760 (7th Cir.

2017). A direct and substantial interference is required. See

Lyng v. Castillo

, 477 U.S. 635, 638 (1986); Bowen v. Gilliard

, 483

U.S. 587, 602–03 (1987); Zablocki v. Redhail

, 434 U.S. 374, 386–

87 & n.12 (1978); see also Griffin High Sch. v. Illinois High Sch.

Ass’n

, 822 F.2d 671 (7th Cir. 1987). St. Joan has shown no such

interference with the right recognized in Pierce

.

3 We set aside intermediate scrutiny, which generally applies to classifica

‐

tions based on quasi

‐ suspect classes, like gender, because it has no poten

‐

tial application to this case. See, e.g.

, Hayden ex rel. A.H. v. Greensburg Cmty.

Sch. Corp.

, 743 F.3d 569, 577 (7th Cir. 2014).8 No. 18

‐ 1673

St. Joan claims that the withholding of free busing, a

state

‐ subsidized benefit, amounts to a prohibited interference

with the right to direct a child’s education. This stretches

Pierce too far. As a general rule, a state’s “decision not to sub

‐

sidize the exercise of a fundamental right does not infringe

the right” and is therefore “not subject to strict scrutiny.” Re

‐

gan v. Taxation with Representation of Washington

, 461 U.S. 540,

549 (1983); see also, e.g.

, Sweeney v. Pence

, 767 F.3d 654, 669 (7th

Cir. 2014). More to the point, a state that chooses not to assist

a private school does not breach the right Pierce described. In

Norwood v. Harrison

, the Supreme Court explained:

It has never been held that if private schools are not

given some share of public funds allocated for edu

‐

cation that such schools are isolated into a classifica

‐

tion violative of the Equal Protection Clause. It is one

thing to say that a State may not prohibit the mainte

‐

nance of private schools and quite another to say

that such schools must, as a matter of equal protec

‐

tion, receive state aid.

413 U.S 455, 462 (1973). In Maher v. Roe

, the Court added that

Pierce “casts no shadow over a State’s power to favor public

education by funding it.” 432 U.S. 464, 477 (1977); see also Cor

‐

nerstone Christian Sch. v. Univ. Interscholastic League

, 563 F.3d

127, 138 n.12 (5th Cir. 2009); Gary S. v. Manchester Sch. Dist.

,

374 F.3d 15, 19–22 (1st Cir. 2004); Cass R. Sunstein, Is There an

Unconstitutional Conditions Doctrine?

, 26 San Diego L. Rev.

337, 340–42 (1989). Pierce

, then, does not protect against a state

favoring public schools with public dollars, which is—at

worst—all MPS has done.

St. Joan’s reach for strict scrutiny stretches the record, too.

There is no evidence that Policy 4.04 hamstrings the right of

parents to direct their children’s education. Parents can andNo. 18

‐ 1673 9

do choose to send their children to Milwaukee private

schools, despite Policy 4.04. Parents who cannot rely upon

private transportation have other options available. All sixty

‐ eight children live within one mile of public transportation

(hence this lawsuit), and St. Joan in fact provided the students

with busing. To be sure, the record contains testimonial evi

‐

dence that some unenumerated number of families declined

to send their children to St. Joan because it could not promise

free busing. But that Policy 4.04 caused some families to “de

‐

cide to modify” where they sent their children “does not

transform” the policy into an intrusion on parental rights.

Bowen

, 483 U.S. at 601–02 & n.16; accord Califano v. Jobst

, 434

U.S. 47, 54 (1977). The burden must be direct and substantial,

and no evidence shows that.

St. Joan also makes much of the fact that Wisconsin con

‐

siders free transportation for private

‐ school students to be

“important,” as evidenced by the 1967 constitutional amend

‐

ment and § 121.54. This emphasis is misplaced. State

‐ specific

policies do not augment fundamental rights. Accord Washing

‐

ton v. Glucksberg

, 521 U.S. 702, 720–21 (1997) (only rights that

are “deeply rooted in this Nation’s history and tradition”

count as fundamental) (citation omitted). Wisconsin law has

implications on whether there are rational bases for Policy

4.04’s restrictions (as we discuss below), but not whether strict

scrutiny applies.

With strict scrutiny off the table, rational

‐ basis review gov

‐

erns St. Joan’s challenges to the one

‐ mile rule and the July 1

deadline. That standard permits a court to invalidate a legis

‐

lative classification only if there is no rational relationship be

‐

tween the classification and “some legitimate government

purpose.” Segovia

, 880 F.3d at 390. “Some” is key—a10 No. 18

‐ 1673

classification is generally valid as long as a rational basis is

plausible, even if the legislature did not expressly endorse it.

See FCC v. Beach Commc’ns, Inc.

, 508 U.S. 307, 313–15 (1993);

Indiana Petroleum Marketers & Convenience Store Ass’n v. Cook

,

808 F.3d 318, 322 (7th Cir. 2015). Rational

‐ basis review toler

‐

ates overinclusive classifications, underinclusive ones, and

other imperfect means

‐ ends fits. Heller v. Doe

, 509 U.S. 312,

319–320 (1993); Gregory v. Ashcroft

, 501 U.S. 452, 473 (1991);

Vance v. Bradley

, 440 U.S. 93, 107–09 (1979). The standard also

imputes “a strong presumption of validity” on the contested

classification. Beach Commc’ns

, 508 U.S. at 314–15. To over

‐

come that presumption, a challenger must negate “every con

‐

ceivable basis which might support” the classification. Id.

B. The One

‐ Mile Rule

Policy 4.04 draws a line. On one side are private schools,

like St. Joan, and attendance

‐ area schools, both of which are

subject to the one

‐ mile rule; on the other side are citywide and

nonattendance

‐ area schools, which are not. St. Joan argues

that this line

‐ drawing violates equal protection, at least as ap

‐ plied to it, because the one

‐ mile rule irrationally treats private

schools differently.

Equal

‐ protection claims start with the question: treated

differently than whom? See Erwin Chemerinsky,

C ONSTITUTIONAL L AW : P RINCIPLES AND P OLICIES § 9.1, 698 (5th

ed. 2015). In cases like this, where the challenged regulation

provides explicit classifications, the answer should be easy.

Driving laws may treat fifteen

‐ year

‐ olds differently than six

‐

teen

‐ year

‐ olds. Liquor laws may treat saloons differently than

grocery stores. And so on. The parties, however, muddle the

answer here. MPS submits that St. Joan is technically an at

‐

tendance

‐ area school, because it has an allotted attendanceNo. 18

‐ 1673 11

area under state regulations. Thus, MPS contends, St. Joan is

treated differently only when compared to dissimilar schools;

but it is treated the same as its relevant comparator—attend

‐

ance

‐ area schools. St. Joan vehemently disagrees, arguing that

it must be compared to citywide schools. St. Joan has an at

‐

tendance area, the school concedes, but that attendance area

is the entire city—just like citywide schools.

The debate is unnecessary. Arguments over whether there

is an apt “similarly situated” comparator are suited for class

‐

of

‐ one equal

‐ protection cases, in which the individual claim

‐

ant must show that she was treated differently (and irration

‐ ally so) than someone else. See, e.g.

, Harvey v. Town of Merrill

‐

ville

, 649 F.3d 526, 532 (7th Cir. 2011). But where, as here, “the

classification appears in the text of” the challenged regulation,

we do not “need to identify a comparator.” Monarch Beverage

Co. v. Cook

, 861 F.3d 678, 682 (7th Cir. 2017). The regulation

that imposes the burden does the work for us.

Here, Policy 4.04 treats private schools, like St. Joan, dif

‐ ferently than citywide schools and nonattendance

‐ area

schools—and that requires a rational basis. St. Joan submits

that there is no rationale for the different treatment, especially

in light of § 121.54’s reasonable uniformity requirement. MPS

responds with two rational bases: (1) furthering its educa

‐

tional mandate by reducing overcapacity and expanding ac

‐

cess to special programs; and (2) cost savings. We will address

whether those justifications suffice on their own terms, then

consider the impact of § 121.54.

MPS, a public

‐ school district, has obvious legitimate inter

‐

ests in reducing overcapacity in crowded attendance

‐ area

schools and in expanding special program access to its stu

‐

dents. See Lewis v. Ascension Par. Sch. Bd.

, 806 F.3d 344, 363 (5th12 No. 18

‐ 1673

Cir. 2015); Spurlock v. Fox

, 716 F.3d 383, 403 (6th Cir. 2013); Doe

ex rel. Doe v. Lower Merion Sch. Dist.

, 665 F.3d 524, 557 (3d Cir.

2011). Either goal requires the same feat—to put more kids in

citywide and nonattendance

‐ area classrooms. To that end, ex

‐ empting students who attend those schools from the one

‐ mile

rule means more kids will get busing to those schools, which

in turn encourages and makes easier their attendance to those

schools. That is rational.

There is a related reason for limiting the one

‐ mile rule’s

application. MPS students who attend citywide or nonattend

‐

ance

‐ area schools are, logically, more likely to have to travel

farther from their home to get to school than students who go

to attendance

‐ area schools. That beckons a trade

‐ off. In ex

‐ change for MPS students traveling farther, MPS makes the

travel easier by ensuring free busing for most students.

Faced with these rational bases, St. Joan reframes the issue.

It posits, and the district court concluded, that the question is

not whether MPS had a rational basis for exempting citywide

and nonattendance

‐ area students from the one

‐ mile rule (the

district court accepted that it did). The question, St. Joan says,

is whether there is a rational basis for not extending the same

benefit to private

‐ school students. St. Joan sees an upside to

the latter formulation, believing it requires MPS to identify

something undeserving about private

‐ school students to jus

‐ tify denying them the busing benefits some public

‐ school stu

‐

dents receive. But that is not how rational

‐ basis review works.

The standard, like most in constitutional law, is a means

‐

end test. See G. Stone et al., C ONSTITUTIONAL L AW 453 (7th ed.

2013). We need only identify a legitimate end and ask whether

the means—the classification—bears a rational relationship to

the end. E.g.

, Armour

, 566 U.S. at 680; Beach Commc’ns

, 508 U.S.No. 18

‐ 1673 13

at 315–20. So if, for example, a state is concerned with the suc

‐

cess of its small

‐ business sector, and, in response, it passes a

regulation offering more generous grant terms to companies

with fewer than fifty employees, the regulation is rationally

related to the state’s legitimate concern. The analysis ends

there. See U.S. R.R. Ret. Bd. v. Fritz

, 449 U.S. 166, 176–79 (1980).

On rational

‐ basis review, we do not additionally require the

state to persuade us why a company with, say, two

‐ hundred

employees would not also benefit from more grant money. Cf.

Rothe Dev., Inc. v. U.S. Dep ʹ t of Def.

, 836 F.3d 57, 73 (D.C. Cir.

2016) (deeming rational a grant program for socially disad

‐ vantaged businesses). Lawmakers often have to draw lines

when “classifying governmental beneficiaries,” and some

‐

times that means those with “strong claim[s] to favored treat

‐

ment” will be left out. Beach Commc’ns

, 508 U.S. at 315–16; see

also, e.g.

, Fitzgerald v. Racing Ass ʹ n of Cent. Iowa

, 539 U.S. 103,

108 (2003); Regan

, 461 U.S. at 550–51; Maher

, 432 U.S. at 477;

City of New Orleans v. Dukes

, 427 U.S. 297, 303–06 (1976) (per

curiam); Dandridge v. Williams

, 397 U.S. 471, 486 (1970) (per

curiam).

That is what happened here. MPS has legitimate interests

in reducing overcrowding and expanding educational access

in MPS schools. With those goals in mind, MPS eased trans

‐ portation to and from the schools that can help it do both. Eas

‐ ing transportation for private

‐ school (and attendance

‐ area)

students, on the other hand, would do little to further MPS’s

goals. And that distinction gives MPS reason enough to treat

the schools differently under rational

‐ basis review. See, e.g.

, Idaho Dep’t of Employment v. Smith

, 434 U.S. 100, 101 (1977) (per

curiam).14 No. 18

‐ 1673

St. Joan attacks the rationality of MPS’s application of the

one

‐ mile rule on other grounds. It asserts that overcrowding

is not truly a problem in MPS schools, because many attend

‐

ance

‐ area schools are not at maximum capacity. St. Joan ar

‐

gues further that MPS has no reason to differentiate St. Joan

from citywide schools because St. Joan also offers special pro

‐ gramming. These arguments may have held water if St. Joan

had a strict

‐ scrutiny case. But it does not. On rational

‐ basis

review, classifications can be both underinclusive and overin

‐

clusive and still survive. E.g.

, Wisconsin Educ. Ass’n Council v.

Walker

, 705 F.3d 640, 655–56 (7th Cir. 2013). MPS, moreover,

does not need conclusive support from “evidence or empiri

‐

cal data” to make the rational decisions it has. Beach

Commc’ns

, 508 U.S. at 313–15.

Turning to MPS’s second justification, cost savings may

serve as a rational basis for classifications. See Bankers Life &

Cas. Co. v. Crenshaw

, 486 U.S. 71, 83–84 (1988); Bowen

, 483 U.S.

at 599; Srail v. Vill. of Lisle, Ill.

, 588 F.3d 940, 948 (7th Cir. 2009);

Irizarry v. Bd. of Educ. of City of Chicago

, 251 F.3d 604, 610 (7th

Cir. 2001). The cases that so hold generally identify potential

costs that are unique or distinct to the disfavored group. See

Bankers Life

, 486 U.S. at 83–84 (charging assessments on non

‐

monetary judgments “would impose a considerable cost in ju

‐

dicial resources”); Irizarry

, 251 F.3d at 610 (excluding unmar

‐

ried persons from dependent benefits resulted in “distinct”

savings). In another busing case, for example, we concluded

that a school district had a rational basis for not transporting

a charter school’s students, because doing so would have re

‐

sulted in “unique and additional costs” to the school district.

Racine Charter One

, 424 F.3d at 685–87. That is not to say that

states can randomly discriminate to keep costs down. If the

state’s cutoff is arbitrary or invidious, then the classificationNo. 18

‐ 1673 15

is by definition not rational. See Mem’l Hosp. v. Maricopa Cty.

,

415 U.S. 250, 263 (1974); Shapiro v. Thompson

, 394 U.S. 618, 633

(1969), overruled on other grounds by Edelman v. Jordan

, 415 U.S.

651 (1974).

Cost savings, in the context of MPS’s other goals, provide

an additional rational basis here. It may well be true, as St.

Joan asserts, that a St. Joan student is no more expensive to

bus than a citywide or nonattendance

‐ area student. But MPS

is already stretched thin; it spent forty

‐ million dollars to pro

‐

vide busing in the 2016–2017 school year, barely any of which

state aid covered. Despite those straits, MPS could believe that

overcrowding and access concerns were worth taking on the

added cost of busing most citywide and nonattendance

‐ area

students. It has no similar reason to take on those costs for

private and attendance

‐ area students. So MPS made the ra

‐

tional choice: pay more to expand busing to schools that could

reduce overcrowding and promote program access, but not to

schools that are less likely provide the same returns. See

Bowen

, 483 U.S. at 596; Idaho Dep’t of Employment

, 434 U.S. at

101.

The one

‐ mile rule therefore has rational bases. But how

does § 121.54’s reasonable uniformity requirement factor in?

Courts typically ask whether a rational basis is conceivable,

without paying mind to what the state actually said or

thought. Monarch Beverage

, 861 F.3d at 685. St. Joan, however,

argues that this case is different, because § 121.54 precludes

MPS from relying on the rational bases that it has.

St. Joan’s argument derives from Allegheny Pittsburgh Coal

Co. v. Cty. Comm’n of Webster Cty., W. Va.

, 488 U.S. 336 (1989).

In Allegheny

, the Supreme Court considered a county’s prop

‐

erty

‐ tax assessment scheme that “systematically produced16 No. 18

‐ 1673

dramatic differences in valuation”—in some cases assessing

property at more than thirty times the rate of comparable

properties. Allegheny

, 488 U.S. at 341. The county defended

the scheme by arguing that it aimed to peg “properties at true

current value.” But that goal, the Court held, could not ration

‐ ally explain the gross disparities in tax treatment. Id. at 343–

44. Nor could state law. The Court recognized that states can

make rational distinctions among taxpayers and assess differ

‐

ent tax burdens, but the state had “not drawn such a distinc

‐

tion.” Id. at 345. To the contrary, West Virginia’s constitution

mandated that “taxation shall be equal and uniform throughout

the State.” Id. at 338 (emphasis added). The Court therefore

saw no conceivable rational bases for the scheme. Id. at 345–

46.

Allegheny ’s holding is quite narrow. Three years after Alle

‐ gheny came Nordlinger v. Hahn

, another equal

‐ protection chal

‐ lenge involving property taxes. 505 U.S. 1 (1992). Like the

scheme in Allegheny

, the law in Nordlinger “resulted in dra

‐

matic disparities in taxation.” Id. at 14. But Allegheny was dis

‐ tinguishable, according to the Court. Citing the Allegheny

county’s irrational justification and the state

‐ law uniformity

directive, the Court concluded that Allegheny “was the rare

case where the facts precluded any plausible inference” of a

rational basis. Id. at 14–16; see also Fitzgerald

, 539 U.S. at 109–

10; Chemerinsky, C ONSTITUTIONAL L AW 718 (after Nordlinger

, Allegheny “seems limited to challenges of arbitrary and unjus

‐

tifiable administrative decisions”). Two decades after Nord

‐ linger

, the Court again emphasized Allegheny ’s limits in Ar

‐

mour

.

In Armour

, the Supreme Court evaluated how Indianapo

‐

lis divvied up the costs of a new sewer project among localNo. 18

‐ 1673 17

homeowners. Indiana law required that such costs be “appor

‐

tioned equally.” Ind. Code § 36

‐ 9

‐ 39

‐ 15(b)(3) (2011). Indian

‐ apolis did so, at least at first, by assessing each homeowner

the same rate. After the assessment, some paid in lump sums

and others began paying in installments. The city soon re

‐

versed course, though, and opted to use bonds to pay for the

project. It then forgave any outstanding installments owed,

but it refused to pay back homeowners who had paid in a

lump sum. Armour

, 566 U.S. at 678–79. The result: homeown

‐

ers who paid upfront spent as much as thirty times more than

other homeowners. See id. at 679.

Despite the parallels—a state uniformity law and gross

disparity—the Court in Armour held that Allegheny did not

control. Id. at 687. Allegheny

, the Court explained, “involved a

clear state law requirement clearly and dramatically violated.”

Id. (emphases added). Not so in Armour

, according to the

Court, because the city followed state law in the first instance,

and state law said nothing about forgiveness plans. The Court

went no further on the state

‐ law question, rejecting the view

that “ordinary violations of ordinary state tax law” can

amount to “violations of the Federal Constitution.” Id. at 687–

88. The Court repeated that Allegheny was the “‘the rare case

where the facts precluded’ any alternative reading of state law

and thus any alternative rational basis.” Id. at 687 (quoting

Nordlinger

, 505 U.S. at 16).

This is not one of those rare cases. MPS’s avowed rational

bases are sound, and § 121.54 does not render them implausi

‐

ble. For one, § 121.54’s reasonable uniformity requirement is

not “clear.” See Armour

, 566 U.S. at 687. It is the opposite—

“ambiguous”—as St. John Vianney Sch. v. Bd. of Educ. of Sch.

Dist. of Janesville held. 336 N.W.2d 387, 393 (Wis. Ct. App.18 No. 18

‐ 1673

1983). There is also little caselaw explaining the requirement.

St. John Vianney

, for its part, noted that the requirement pre

‐

vents discrimination based on how far students live from

school. Id. at 393–94; see also Wis. Stat. § 121.54(2)(c), (4) (dis

‐ cussing reasonable uniformity in terms of the distances trans

‐ ported to and from school). That, however, does not move

much here, because the one

‐ mile rule does not discriminate

on a distance

‐ from

‐ school basis. What is more, absent “clear”

law, we do not see what MPS “clearly and dramatically” vio

‐

lated. See Armour

, 566 U.S. at 687. It is true that the one

‐ mile

rule effectively denies busing to most of the St. Joan students

who applied for it. But we decline to speak for the Wisconsin

courts as to whether that result is “reasonable” as a matter of

local busing policy. MPS is financially strained as it is, and the

rule does apply uniformly to private and attendance

‐ area stu

‐

dents. 4

Of course, none of this means that the one

‐ mile rule com

‐ plies with § 121.54. That question is not before us, and the an

‐

swer, unsettled as it is, should come from the Wisconsin

courts. To resolve the equal

‐ protection claim before us, we

hold only that MPS has offered rational bases that are plausi

‐

ble notwithstanding state law.

In coming out the other way, the dissent goes further than

we are willing. It draws on legislative history and potentially

4 We said earlier that we do not need to determine, for equal

‐ protection

purposes, what types of schools St. Joan is most like (citywide or nonat

‐

tendance area, who generally get busing, or attendance

‐ area schools, who

generally do not). At the same time, we have no basis to say what practical

and regulatory distinctions will matter to the Wisconsin courts for § 121.54

purposes.No. 18

‐ 1673 19

comparable lower

‐ court decisions (like St. John Vianney ) to

conclude that the one

‐ mile rule violates § 121.54 clearly

enough to implicate Allegheny and negate MPS’s rational ba

‐

ses. With respect, we think that approach does more than

what Allegheny and Armour did. For even if the one

‐ mile rule

violates § 121.54, 5 a mere violation of state law does not boot

‐

strap itself into a violation of the Equal Protection Clause. Ar

‐

mour

, 566 U.S. at 687–88; see also William C. Cohen, State Law

in Equality Clothing: A Comment on Allegheny Pittsburgh Coal

Company v. County Commission

, 38 UCLA L. Rev. 87, 99–103

(1990).

C. The July 1 Deadline

MPS additionally requires private schools to provide by

July 1 the names of students who need busing. This deadline

applies only to private

‐ school students, not MPS students,

and thus St. Joan claims that it also violates equal protection.

In response, MPS proffers one rational basis in support of the

deadline: administrative necessity.

There is no question that administrative concerns can jus

‐ tify certain classifications. E.g.

, Armour

, 566 U.S. at 683; Bank

‐

ers Life

, 486 U.S. at 84; Hearne v. Bd. of Educ. of City of Chicago

,

185 F.3d 770, 775 (7th Cir. 1999). Such concerns exist here.

5 It is worth adding that in Allegheny

, unlike here, the state courts at least

had an opportunity to decide whether the challenged scheme violated

state law. West Virginia’s highest court assumed that it did, but the court

refused to order relief because it concluded that absent “intentional and

systemic” undervaluation the petitioners had to seek relief from the asses

‐

sor. Allegheny

, 488 U.S. at 342–43 (citing In re 1975 Tax Assessments Against

Oneida Coal Co.

, 360 S.E.2d 560, 565 (W.Va. 1987)); see also John Hart Ely,

Another Spin on Allegheny Pittsburgh

, 38 UCLA L. Rev. 107, 109 (1990) (ex

‐ plaining the “strange” circumstances of Allegheny ).20 No. 18

‐ 1673

Before school starts, MPS must determine which students are

eligible for transportation, compare school rosters to confirm

that students are not double booked, and arrange for bus ser

‐

vices or contract for alternative transportation services. See

Wis. Stat. § 121.55. These tasks all require MPS to have the stu

‐

dents’ information well in advance of the school year. While

MPS has direct access to its own students’ information, it does

not have the same for private

‐ school students. As a result,

some deadline by which private schools must provide student

information is logistically rational—and statutorily mandated

by Wis. Stat. § 121.54(2)(b). Whether July 1, as opposed to, say,

September 1, is the wisest or fairest choice is not for us to de

‐

cide. See, e.g.

, Heller

, 509 U.S. at 319–320; Nordlinger

, 505 U.S.

at 18; Hodel v. Indiana

, 452 U.S. 314, 331 (1981).

That is sufficient to deem the deadline constitutional on its

face. 6 See Midwest Fence Corp. v. U.S. Dep’t of Transp.

, 840 F.3d

932, 941–46 (7th Cir. 2016); see also United States v. Salerno

, 481

U.S. 739, 745 (1987). St. Joan, however, also lobs a related chal

‐ lenge to what comes after the deadline. According to St. Joan,

MPS treats students who enroll near or after July 1 differently

depending on their school. To illustrate, St. Joan offers a hy

‐ pothetical. Suppose MPS completes transportation arrange

‐

ments for all schools (public and private) by August 15. A

week later, two families, each with a fourteen

‐ year

‐ old, move

to Milwaukee. One family decides to send its child to a private

6 We use the term “on its face” advisedly, although we note that the July 1

deadline has not been recorded anywhere (at least as far as this record is

concerned). That is odd, particularly because the July 1 deadline conflicts

with the September deadline set forth in Policy 4.04 and the May 15 dead

‐

line in Wis. Stat. § 121.54(2)(b). St. Joan, however, has not argued that these

facts impact the constitutional analysis, and so we do not address them.No. 18

‐ 1673 21

school outside of her neighborhood; the other opts for a pub

‐

lic school outside of her neighborhood. And then MPS learns

of the two students, and their need for busing, on the exact

same day. The private

‐ school student cannot get busing; yet

the public

‐ school student could, according to St. Joan.

That prospect gives us pause. The time needed to arrange

for transportation before the school year justifies imposing a

roster

‐ notification deadline on private schools. But pre

‐ ar

‐

rangement needs offer no justification for treating post

‐ ar

‐

rangement latecomers differently. Granted, some rigidity in

the deadline may be rational (to motivate private schools to

comply with the it); but even that would not justify treating

students who move to the district near or after the deadline

differently, based only on whether they go to private or public

school. We see no rational basis for that distinction, and MPS

has not provided any. Perhaps there are heightened burdens

associated with latecomer private

‐ school students that do not

exist for public

‐ school students, but again, MPS has not

pointed to any.

That said, we cannot order relief on this record. Unlike the

dissent, at least two things remain unclear to us. First, we do

not know whether, in fact, MPS enforces the July 1 deadline

in the manner just described. At oral argument, counsel for

MPS hedged when asked directly; and the parties have not

directed us to a part of the record that reveals a clear answer.

Second, we do not know why St. Joan updated its roster after

the July 1 deadline—whether the result of latecomers, pro

‐

crastination, or something else. These facts matter, of course,

because an as

‐ applied challenge concerns only the present

case, not hypotheticals. See, e.g.

, Hegwood v. City of Eau Claire

,

676 F.3d 600, 603 (7th Cir. 2012); United States v. Skoien

, 61422 No. 18

‐ 1673

F.3d 638, 645 (7th Cir. 2010) (en banc). We therefore conclude

that further fact

‐ finding is necessary. See, e.g.

, Shimer v. Wash

‐ ington

, 100 F.3d 506, 510 (7th Cir. 1996). After that occurs, it is

up to the district court in the first instance to decide what re

‐

lief, if any, is appropriate.

III. Conclusion

For these reasons, we AFFIRM the district court’s judg

‐

ment with respect to the one

‐ mile rule and we REVERSE and

REMAND for further proceedings consistent with this opin

‐

ion with respect to the July 1 deadline.No. 18

- 1673 23

S YKES

, Circuit Judge , dissenting. I respectfully dissent. Unlike my colleagues, I think t his is indeed the “ rare case ” in

which a state

- law uniformity mandate removes otherwise

plausible policy justification s for a local legislative classification, leaving no rational basis for the local r ule

. Nordlinger v.

Hahn , 505 U.S. 1, 16 (1992) (describing Allegheny Pittsburgh

Coal Co. v. Cty

. Comm ’ n of Webster Cty., W. Va. , 488 U.S. 336

( 1989)). I would reverse and remand for entry of judgment

for the plaintiff.

* * *

To understand this unusual equal

- protection claim, i t ’ s

helpful to review the relevant state legal history. In 1962 the

Wisconsin Supreme Court held that the s tate constitution

prohibit ed the expenditure of public funds t o transport

children to parochial and private schools. State ex rel.

Reynolds v. Nusbaum , 115 N .W.2d 761, 769

– 70 (Wis. 1962).

Wisconsin v oters responded by amending the constitution

. In 1967 they add ed this language : “ Transportation of school

children . Nothing in this constitution shall prohibit the

legislature from providing for the safety and welfare of

children by providing for the transportation of children to

and from any parochial or private sch ool or institution of

learning. ” W IS

. C ONS T

. a rt. I, § 23.

A ct ing on this new constitutional authority, the

Wisconsin legislature immediately “ elect[ ed ] to provide for

the transportation of children to any parochial or private

school by amending the existi ng statutes

... to provide for

transportation for students attending private or parochial

schools and public schools upon a reasonably uniform basis

. ”

Cartwright v. Sharpe , 162 N.W.2d 5, 8 (Wis. 1968) (emphasis

added). The enabling legislat ion included an explicit state-24 No. 18

- 1673

ment of statutory purpose: “ The intent of this act is to provide for the safety and welfare of children by providing for

their transportation to and from public and private schools. ”

Ch. 68 , § 1, 1967 Wis. Sess. Laws 144

.

To that end, the legislature amended the school

transportation statute s to require “ every school board ” to

provide transportation to and from public and private

school s for all students who reside in the district and live

“ 2 miles or more ” from their school

. W IS

. S TAT

. § 121.54(2) (a)

, (b) (mandating public and private school transportation on

these terms )

. So school districts have a statutory duty to

provide free transportation to and from school for all resident children who live two miles or more from their scho ol

,

whether public or private

.

S chool districts may of course provide more generous

transportation service

. The statutory scheme recognizes that

s chool boards may elect to transport “ all or some of the

pupils ” who reside in the district and live less than two miles

from their school. Id

. § 121.54( 2)(c). If they choose to do so

, however, they may not use different distance standards f o r

pu blic and private school students : “ If transportation is

provided for less than all such pupils [,] there shall be reasona ble uniformity in the minimum distance that pupils

attending public and private schools will be transported. ” Id

.

Th e uniform ity requirement is repeated in the subsection

governing transportation to summer classes. School districts

are permitted ( but not required ) to bus children to summer

school , but “[ i]f the school board provides transportation for

less than all pupils, there shall be reasonable uniformity in

the minimum and maximum distances pupils are transported. ” Id

. § 121.54(4).No. 18

- 1673 25

Finally, and most r elevant here, the transportation mandate excludes children who live in cit ies served by public

trans it systems

. Id

. § 121.54(1) (c)

. Under th e so

- called “ city

option, ” s chool districts in cities with public transit s ervice

are not required t o provide free s tudent transportation . I f

they choose to do so, however, “ there shall be reasonable

uniformity in the transportation furnished to the pupils,

whether they attend public or private schools. ” Id

. § 121.54(1)(b). In this way t he “ city option

, ” like the other

transportation provisions, requires equal treatment of public

and private school students

.

T he 1967 legislation soon sp awned litigation. In a key

early case interpreting the new statutory scheme, the

Wisconsin Supreme Court explained that “[ t]he important

change ” ushered in by the c onstitutional amendment and

enabling legislati on “ was to provide that where transportation is furnished, either mandatory or permissive, it must be

on a reasonably uniform basis to children attending either

public or private schools. ” Cartwright

, 162 N.W.2d at 10

– 11.

Put slightly differently, “[ w]hat the constitutional amendment and enabling legislation accomplished was to provide

that the same consideration of safety and welfare should

apply to public and private s tudents alike. ” Id

. at 11.

* * *

The Milwaukee Public School District (“ MPS ” or “ the

District ” ) qualifies for the city option. The District serves

children in the City of Milwaukee

, where public bus service

(operated by the Milwaukee County Transit System) is

available. MPS has chosen to provide free transportation

service to some resident chi ldren and thus is bound by the26 No. 18

- 1673

statutory obligation to treat public and private school students alike.

MPS Ad ministrative Policy 4.04 contains the District ’ s

transportation regulations. Two features of the policy are at

issue here. The first concerns the distance standards for

determining eligibility for free transportation. The policy

draw s no distinction betwee n public and private elementary

school students

. Tracking the statutory mandate for noncity

schools, MPS provides free transportation for public and

private school students in grades K

– 8 who live “ two miles or

more ” from their school. A DMINISTRATIVE P OLICI ES OF THE

M ILWAUKEE P UBLIC S CHOOLS

, P OLICY 4.04(2)(a)1., (b)1

. (Nov. 12, 2014)

.

The eligibility rules are different for s tudents in grade s 9

–

12. MPS conditions free t ransportation service for high

school students on the two

- mile rule plus an additional

distance requirement. The District will transport only those

high

- school students who live “ two miles or more ” from

their school and “ more than one mile walking distance from

public transportation. ” Id

. 4.04 (2) (a)3., (b)2. So families of

high

- school stude nts who live within one mile of a public

transit stop must pay their own transport ation costs

.

But MPS lifts th is second condition for students who

attend citywide public high school s or public high school s

outside their n eighborhood attendance area. Id

. 4.04(5)(a)2.,

(b)2. In other words, students who attend public citywide

high school s and live two miles or more from school get free

transportation from the District regardless of their proximity

to public transportation ; their counterparts in private

cit ywide h igh schools do not

. T he latter are ineligible for freeNo. 18

- 1673 27

transportation unless they live more than one mile fr om a

public trans it stop

.

S tudents at private schools are disadvantaged in another

way. Milwaukee children who attend private schools (regardless of grade level ) c an not receive transportation from

MPS unless the private school “ submits the names, grade

levels, and location of eligible students no later than the

third Friday of September. ” Id

. 4.04(2)(b)4. As my colleagues

explain, i n pra ctice MPS requires private schools to submit

the ir transportation roster s by July 1 . Students who enroll

after that date

— whether later in the summer or after the

school year has begun

— are ineligible to receive transportation service from MPS for that schoo l year

. The roster requirement and July 1 cutoff date appl y only to private

schools. L ate and mid

- year enrollee s in the District ’ s own

school s are not denied free transportation.

* * *

St. Joan Antida High School challenge s these disparate

transportation rules on behalf of itself and its students

.

St. Joan Antida is a private, all

- girls high school in the City of

Milwaukee with a citywide attendance area. That is, i ts

students come from all over Milwaukee , not just the i mmediate neighborhood , so they are similarly situated in all

material respects to students in public citywide high schools

. Y

et MPS treats them unequally for p urposes of transportation eligibility. They are denied free transportation if they

live within one mile of a public tr ansportation stop. MPS

does not apply th is extra distance requirement to their

counterparts at public citywide high schools

. This difference

in treatment, the school a rgues, violates the Fourteenth

Amendment ’ s Equal Protection Clause

. St. Joan Antida also28 No. 18

- 1673

challenges the July 1 roster deadline, which operates as a

cutoff date to receive transportation service but applies only

to students in private schools.

M y colleagues conc lude that the challenged rules do not

burden a fundamental right and thus do not tri gger strict

scrutiny under prevailing equal

- protection doctrine . I agree

and have nothing to add to the analysis in Section IIA of the

majority opinion

. The challenged rules need only be rational ly relat ed to a legitimate governmental interest. This is a

h ighly deferential standard

. As the majority explain s , u nder

rational

- basis review

, (1) t he challenged law enjoys a presumption of validity ; (2) the government ’ s a ctual reason s for

adopting it do not matter ; and (3) the fit between the government ’ s means an d its end s can be both hypothe tical and

very loose

. In short, as long as some legitimate governmental

purpose is conceivably in play and the law might rational ly

be thought to serve that purpose , the test is satisfied. It ’ s

almost impossible to flunk this lenient standard.

Even so, there is a legal baseline below which local laws

may not fall and still be thought minimally rational for

equal

- protection purposes

. If state law p laces persons in the

same class and directs local government s to treat ev eryone in

the class uniformly, local governments cannot dis criminat e

on the very terms forbidden by state law and expect to

survive rational

- basis review

. The Supreme Court explained

and applied this principle in Alleghe ny

. There the Court

reviewed a tax

- assessment method used by a West Virginia

county that assessed property based on its purchase price

when last sold and adjust ed stale data on an ad hoc and

sporadic basis to account for the passage of time

. Allegheny

, 488 U.S. at 338. In practice th is assessment method producedNo. 18

- 1673 29

“ gross disparities in the assessed value of generally comparable property. ” Id

. State law , however, mandated that

“ taxation shall be equal and uniform throughout the State,

and all property, both real and person al , shall be taxe d in

proportion to its value. ” Id

. (quoting W. V A

. C ONST

. a rt. X,

§ 1). Affected p roperty owner s sued, claim ing that the

c ounty ’ s assessment method violat ed the ir rights under the

E qual Pr otection Clause

.

The c ounty maintained that its assessment method w as a

rational way to measure “ true current value ” because it used

actual sale prices plus periodic adjustments “[ a]s those data

grow stale. ” Id

. at 343. T he Court disagreed , though it did

“ not intend to cast doubt upon the theoretical basis of such a

schem e. ” Id

. “ That two methods are used to assess property

in the same class is, without more, of no constitutional

moment. Th e Equal Protection Clause ‘ applies only to

taxation which in fact bears unequally on persons or property of the same class. ’ ” Id

. (quot ing Charleston Fed. Savings &

Loan Ass ’ n v. Alderson , 324 U.S. 182, 190 (1945) (collecting

cases))

. The factual predicate was easily established in

Allegheny : “ Petitioners ’ property has been assessed at roughly 8 to 35 times more than comparable neighborhood property, and these discrepancies have continued for more than

10 years with little change. ” Id

. at 344.

The Court continued: “ T he States, of course, have broad

powers to impose and collect taxes

... [and] may divide

different kinds of property into classes and assign to each

class a different tax burden so long as those divisions and

burdens are reasonable. ” Id

. “ But West Virginia has not

drawn such a distinction. Its Constitution and laws provide

that all property of the kind held by petitioner s shall be30 No. 18

- 1673

taxed at a rate uniform throughout the State according to its

estimated market value. ” Id

. at 3 45. S tate law required

reasonable uniformity, but t he c ounty ’ s assessment scheme

“ systematically produced dramatic differences in valuation ”

for simil arly situated properties. Id

. at 341. Because the

valuation method co nsistently produced results that transgressed the state

- law uniformity norm, it was not rationally

related to a legitimate governmental purpose

. Id

. at 343

– 4 5

. That is, state law negated any conceivable rational basis for

the local discriminatory practice. The Court found an equal

protection violation. Id . at 346.

A s my colleagues observe, the Court later described

Allegheny as “ ‘ the rare case where the facts pr eclude d ’ any

alternative reading of state law and thus any alternative

rational basis ” for the challenged local practice or rule

. Armour v. City of Indianapolis , 566 U.S. 673, 687 (2012) (quoting Nordlinger , 505 U.S. at 16). In Armour homeowners sued

the C ity of Indianapolis after it changed its method of funding sewer projects. Indiana law required that “ costs [for

sewer improvements] be primarily apportioned equally

among all abutting lands or lots. ” I ND

. C ODE § 36

- 9

- 39

- 15(b)(3) (2011). Indianapolis did just that, though it gave

home owners the option t o pay the special assessment all at

once or in installments. Armour

, 566 U.S. at 676

– 77. The City

later abandoned that method in favor of a system that

primarily relied on citywide bonds

, spread ing the c ost across

the entire municipal tax base. Wi th this shift in policy , the

City forgave any unpaid installments but did not refund

homeowners who had already finished paying. Id . at 678

– 79.

The Court held that th e case did not implicate Allegheny

. The statut e required Indianapolis to apportion costsNo. 18

- 1673 31

equally

— which the City plainl y had done

— but state law

said nothing about later forgiveness

. The Court explained:

“[ T]he City followed state law by apportioning the cost of its

[sewer] projects equally. State law s ays nothing about forgiveness, how to design a forgiveness program, or whether

or when rational distinctions in doing so are permitted. ” Id

.

at 687. That distinguished Armour from Allegheny

. The Court

characterized Allegheny as a “ r are case ” because it “ involved

a clear state law requirement clearly and dramatically violated. ” Id

.

Unlike my colleagues, I do not read th is last sentence as

materially changing Allegheny ’ s fundamental holding. True,

the Court in Allegheny said that the county ’ s as sessment

method produced “ dramatic differences in valuation

, ” but

that statement was descriptive , not doctrinal

. I f Armour truly

limits Alleghen y to local rules or practices that “ dramatic ally ”

depart from state law , we ’ d need some standard to distinguish “ dramatic ” departures from th ose that are not. But

Armour did not elaborate. On this point at least, I hesitate to

read t his passage from Armour as a doctrinal limitation on

Allegheny

.

Perhaps it ’ s fair to read Armour as limiting Allegheny ’ s

h olding to clear violations of clear state uniformity mandates . If so, we have that here

. As I ’ ve explained, the school

transportation statutes say

— again and again

— that school

districts must treat public and private school students

reasonably equally when it comes to access to publicly

funded transportation. D istricts operating under the city

option need not provide free school transportation to any

resident children , b ut if they provide it to some , then the law

requires “ reasonabl e uniform ity in the transp ortation fur-32 No. 18

- 1673

nished to the pupils, whether they attend public or private

schools. ” § 121.54(1)(b).

Put another way, i f the city option were not in play, MPS

would have a plain statutory duty to transport all students

who live two miles or more from their sc hool

, whether

public or private . § 121.54(2). But because public trans it is

readily available in Milwaukee, MPS may (1) provide no

busing at all or (2) provide busing on equal terms to public

and private school students. § 121.54(1)(b). MPS has chosen a

th ird way . It provides transport ation for students in public

citywide high schools who satisfy the two

- mile rule but not

their counterparts in private citywide high schools. I t has

invoked the city option on discrimi natory terms expressly

forbidden by the statute

. That ’ s an irrational policy choice a s

a matter of law.

It ’ s true, a s my colleagues point out

, that § 121.54(1)(b)

has not been the subject of much app ellate litigation in the

state courts

. The Wisconsin Supreme Court has not had

occasion to addres s it s scope

. In o ne case the state court of

appeals conclude d that the term “ reasonable uniformity ” in

§ 121.54(1)(b) is ambiguous. St. John Vianney Sch

. v. Bd. of

Ed uc . of Sch. Dist. of Janesville , 336 N.W.2d 387, 393 ( Wis. Ct.

App. 1983). The precise question in St. John Vianney was

whether the uniformity mandate in § 121.54( 1 )( b ) requires

school district s to provide the same mode of transportation to

public and private school students. More particularly, t he

plaintiffs argued that if the distr ict provided so

- called “ yellow school bus ” service for students in public schools, then it

had to provide “ yellow school bus ” service for students in

private schools

. Id

. at 388

– 89. The court rejec ted that argument

. Read ing § 121.54(1)(b) in the context of the statutoryNo. 18

- 1673 33

scheme as a whole, the court noted that the school

transportation code gives school boards the discretion to use

any of five different modes of transportation to comply with

their statutory obligations

. Se e W IS

. S TAT . § 121.55 . The court

said : “ I t would be unreasonable to conclude that the ‘ reasonable uniformity ’ requirement of sec. 121.54(1) abrogates

the board ’ s option to provide transportation by any of the

methods expressly permitted under sec. 121.55.” St. John

Vianney

, 336 N.W.2d at 393.

Th at was enough to decide the case , b ut the opinion continues with some extensive dicta. The court went on to

observe that “ [ t] he overall concern behind the school transportation statutes is the safety and welfare of pupils

. ” Id

. Recognizing that “ man y factors affect

... safety and welfare

, ”

the court deduced from the broader statutory scheme that

“[ t]he distance a child live s from school is

... the principal

factor with which the statutes are concerned. ” Id

. A cknowledg ing that § 121.54(1)(b) “ is silent re garding a distance

standard in connection with the reasonable uniformity

requirement

, ” the court read the statute to “ prevent[] a

school board from distinguishing for transportation purposes between public and private school pupils on the basis of

the distance they live from school. ” Id

. at 394. On this understanding, th e court said that “ w hatever

... distance standard

the board chooses, the distance standard must be reasonably

uniform in its application to public and private school

pupils. ” Id

.

The actu al holding in St. John Vianney is limited

. The

court held only that th e uniformity mandate in § 121.54(1)(b)

does not require school districts to use identical mode s of

transportation for public and private school students. The34 No. 18

- 1673

court ’ s extended discussion goes further, suggest ing that

whatever else the term “ reasonable uniformity ” may entail,

at a minimum it prevents school districts from using different distance

- from

- school standards for public and private

school students to determin e their eligibility for free transportation

. MPS ’ s one

- mile rule is a materially similar distance standard ; high

- school students who live within one

mile of a public transit stop are ineligible for free transportation to school . But the rule is discriminatory on its face: it

app lies only to students at private citywide high schools ;

students at public citywide high schools get free transportation regardless of their proximity to public transit . On the

reasoning of St. John Vianney

, the statutory un iform ity

mandate forbids precise ly this kind of discriminat ion by local

school districts in the provision of free school transportation

.

A case decided four years before St. John Vianney sheds

even more light on the scope and operation of the uniformity

requirement. In Hahner v. Board of Education , a school district

provided busing on almost uniform terms to public and

private schools

. The problem was that it routinely refused to

bus students to certain Catholic schools that held classes

during a week when other schools in the district (public and

private) had spring break. 278 N.W.2d 474, 475

– 76 (Wis. Ct.

App. 1979). As a result, a small number of students att ending Catholic schools did not receive busing for the entirety of

their school year.

Addressing the “ reasonable unifor mity doctrine ” in the

school

- transportation code, 1 the court held that the district

1 Hahner does not specifically mention § 121.54(1)(b), but it relies on

authorities that do. Hahner v. Bd. of Educ.

, 278 N.W.2d 474, 478

– 80 (Wis.No. 18

- 1673 35

did not have the discretion to deny transport ation to

Catholic school students when their schools were in session

but the public schools were not. Id

. at 478

, 479

– 80. The

o pinion is significant for what it tells us about the dimensions of the reasonable

- uniformity requirement : even a one

week denial of transportation to private school students is

impermissible , as are deviations from the uniformity norm

unrelated to student safety and welfare. Here is the key

passage :

The crucial question is whether a school

board ’ s discretion in coordinating the scheduling of the transportation of pupils to public

and private schools extends to not transporting

pupils to private schools during a week when

the public schools are closed for vacation.

...[T]he purpose of coordinating these transportation activities is “ to insure the safety and welfare of the pupils ” as provided in sec. 121.56,

Stats. This court believes the objective of this

requirement is to prevent discriminatory

treatmen t of pupils attending private schools in

the transportation provided them. The fact that

the school district would save money by not transporting private school pupils during a week when

the public schools are closed for vacation is a factor

which bears no relationship to the safety and welfare

of the pupils being transported to public schools.

Id

. at 479 (emphasis added)

.

Ct. App. 1979) (citing Cartwright v. Sharpe , 162 N.W.2d 5, 10

– 11 (Wis.

1968) , and 61 Wis. Op. Att ’ y Gen. 240, 24 1 (1 972) )

.36 No. 18

- 1673

Together, St. John Vianney and Hahner make clear that

MPS ’ s discriminatory one

- mile rule violates the statutory

requirement of reasonab le uniformity in the provision of free

transportation to public and private school students. The

challenged rule is unequal on its face and cannot be justified

by reference to student safety and welfare , which are the

only legitimate public

- policy interest s recognized by state

law as j ustifications for school

- transportation distinctions

between public and private school students

. Simply put,

state law forbids MPS from making a policy choice to allocate free transportation on these unequal terms

.

MPS defends its discriminatory one

- mile rule based on

abstract goals of avoiding overcapacity in its neighborhood

schools, expanding access to special programming, an d

saving money . My colleagues accept these justifications as

rational reasons for discriminating against private school

students. With r espect, state law leaves no room for these

possible policy justifications

. The state legislature has decreed a public policy of reasonably uniform treatment of

public and private school students when it comes to free

school transportation

. School districts may not have different

eligibility rules for public and private school students ( except perhaps for safety and welfare reasons)

. Under clear

st ate law, discriminating between public and private school

students is not a n available means to achieve other policy

goals

. Put somewhat differently, a local rule that defies the

state

- law uniformity command serves no legitimate governmental purpose. Like the county tax

- assessment method inNo. 18

- 1673 37

Allegheny

, th e MPS rule violates the Equal Protection

Clause. 2

In reaching this conclusion

, I do not purport to “ speak for

the Wisconsin courts ” any more than the Supreme Court

purported to “ sp ea k for the West Virginia courts ” when it

found an equal

- protection violation in Allegheny . Majority

Op. at p. 1 8

. My conclusion simply recognize s that the

statutory u niformity mandate removes the plausible policy

justifications for this discriminatory local rule , which classifies students on the precise terms forbid den by stat ute

. 3

2 In Racine Charter One, Inc. v. Racine Unified School District , we accepted a

school district ’ s “ cost ” justification as a rational basis for not busing

students to a charter school. 424 F.3d 677, 685

– 87 (7th Cir. 2005). I

question t hat holding , which flatly contradicts Hahner

. Racine Charter One

held in the alternati ve that the charter school ’ s students were not

similarly situat ed “ to those students who do receive the busing benefit. ”

Id . at 683. I question that holding as well, but the case is perhaps distinguishable from ours on that ground.

3 My colleagues say that I ’ ve gone too far because my analysis “ draws on

legislative history and potentially comparable lower

- court decisions (like

St. John Vianney ). ” Majority Op. at p. 1 8

– 19

. That misunderstands

W isconsin ’ s approach to statutory interpretation and the constitutional

status of the state court of appeals.

Wisconsin has adopted a textualist method of statutory interpretation that limits the use of legislative history. State ex rel. Kalal v. Circuit

Court for Dane Cty

. , 681 N.W.2d 110, 124

– 26 (Wis. 2004). B ut statutory

history is not the same as legislative history. Stat utory History

, B LACK ’ S

L AW D ICTIONARY (10th ed. 2014) (“ T he enacted lineage of a statute,

including prior laws, amendments, codifications, and repeals

. ”); Legislative History

, id

. ( “ T he proce edings leading to the enactment of a statute,

including hearings, committee reports, and floor debates

. ”). Statutory

history provides context for statutory terms and is an accepted part of

Wisconsin ’ s textualist interpretive method. See County of Dane v. L abor &38 No. 18

- 1673

For similar reasons

, the District ’ s enforcement of the

July 1 roster deadline violates the Equal Protection Clause

. As I understand th is claim, St. Joan Antida does not object to

a general rule requiring private schools to submit a transportation roster by a date certain. It challenges the District ’ s

practice of denying free transportation to students who

enroll after the deadline passes. Late and mid

- year enrollees

at public school s do not suffer th e same fate

. This policy , too,

violates the state

- law re quirement of reasonable uniformity,

leaving no rational basis for the discriminat ory treatment

.

My understand ing of this claim differs from the majority ’ s in another way

. St. Joan Antida challenges the enforcement of the roster policy as a general matter. The school

seeks an injuncti on against the discriminatory denial of

transportation t o students who enroll in private school after

Indus

. Review Comm ’ n , 759 N.W.2d 571, 580 (Wis. 2009); Kalal , 681 N.W.2d

at 126. The same is true of statement s of purpose contained in the

statutory text

. Kalal , 681 N.W.2d at 125. Finally

, Wisco nsin ’ s approach to

statutory interpretation reads statutory language “ in the context in

which it is used; not in isolation but as part of a whole; in relation to the

language of surrounding or closely

- related statutes; and reasonably, to

avoid absurd or unreasonable results. ” Id . at 124. Everything I ’ ve said

here is consistent with Wisconsin law.

F urther , t he state court of appeals , though divided into four districts

,

is a unitary court

, and its published opinions are binding statewide

precedent until “ overrule[d], modif[ied, ] or withdraw[n] ” by the stat e

supreme court. Cook v. Cook , 560 N.W.2d 246, 256 (Wis. 1997). My

analysis draws on a seminal decision of the state supreme court

( Cartwright ) and two decisions of the court of appeals ( St. John Vianney

and Hahner ). All three have binding statewide precedential effect.No. 18

- 1673 39

the July 1 deadline

. St. Joan Antida also seeks damages ; th e

monetary remedy is of course keyed to facts peculiar to the

school and its students

. B ut the parties have stipulated to

damages.

My colle a gues share some of my concern s about the rationality of th is policy and remand for further clarification

and development of this claim. As I see it

, all tha t remains to

be done on remand is to fashion an appropriate injunctive

remed y and enter judgment granting injunctive and monetary relief

. St. Joan Antida has explained that students who

have not yet enrolled in private school by the July 1 deadline

( and th us do not appear on a private school ’ s roster ) are

denied free transportation for the ensuing school year

. Late

and mid

- year enrollees in the public schools are not. MPS

has not denied th at it enforces its July 1 roster policy in this

way . In light of the stat utory unifor mity mandate , th is

discriminatory treatment cannot be justified as rationally

related to a legitimate governmental interest

.

For these reasons , I would reverse and remand with instructions to enter judgment for St. Joan Antida

.