In the 

United States Court of Appeals 

For the Seventh Circuit ____________________

No. 18‐1673   

ST. JOAN ANTIDA HIGH SCHOOL INC.,

Plaintiff‐Appellant,

v.

MILWAUKEE PUBLIC SCHOOL DISTRICT,

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.

____________________

ARGUED SEPTEMBER 18, 2018 — DECIDED MARCH 25, 2019

____________________

Before SYKES, BARRETT, and ST. EVE, Circuit Judges.

ST. EVE, Circuit Judge. There have been several constitu‐

tional challenges to school busing in Wisconsin overthe 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 thatrequires school districts to provide transportation for
No. 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, whetherthey

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, high
4 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 a
No. 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 and
No. 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—a
10 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,

CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 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 attendance
No. 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 (5th
12 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., CONSTITUTIONAL LAW 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. Depʹt 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 Assʹn 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 classification
No. 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 produced
16 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, CONSTITUTIONAL LAW 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 local
No. 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 whetherthey 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, 614
22 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

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

which a state-law uniformity mandate removes otherwise 

plausible policy justifications for a local legislative classification, leaving no rational basis for the local rule. 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, it’s 

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

Wisconsin Supreme Court held that the state constitution

prohibited the expenditure of public funds to transport 

children to parochial and private schools. State ex rel. 

Reynolds v. Nusbaum, 115 N.W.2d 761, 769–70 (Wis. 1962). 

Wisconsin voters responded by amending the constitution.

In 1967 they added 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 school or institution of 

learning.” WIS. CONST. art. I, § 23.

Acting 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 existing 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 legislation 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 schooltransportation statutes to require “every school board” to 

provide transportation to and from public and private 

schools for all students who reside in the district and live 

“2 miles or more” from their school. WIS. STAT. § 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 school, 

whether public or private.

School districts may of course provide more generous 

transportation service. The statutory scheme recognizes that 

school 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 for

public and private school students: “If transportation is 

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

attending public and private schools will be transported.” Id.

The uniformity 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 relevant here, the transportation mandate excludes children who live in cities served by public 

transit systems. Id. § 121.54(1)(c). Under the so-called “city 

option,” school districts in cities with public transit service

are not required to provide free student transportation. If 

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 the “city option,” like the other 

transportation provisions, requires equal treatment of public 

and private school students.

The 1967 legislation soon spawned 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 constitutional amendment and 

enabling legislation “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 students 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 children and thus is bound by the 
26 No. 18-1673

statutory obligation to treat public and private school students alike.

MPS Administrative 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 

draws no distinction between public and private elementaryschool 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. ADMINISTRATIVE POLICIES OF THE 

MILWAUKEE PUBLIC SCHOOLS, POLICY 4.04(2)(a)1., (b)1.

(Nov. 12, 2014).

The eligibility rules are different for students in grades 9–

12. MPS conditions free transportation service for highschool 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 students who live within one mile of a public

transit stop must pay their own transportation costs.

But MPS lifts this second condition for students who 

attend citywide public high schools or public high schools

outside their neighborhood attendance area. Id. 4.04(5)(a)2., 

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

high schools 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

citywide high schools do not. The latter are ineligible for free 
No. 18-1673 27

transportation unless they live more than one mile from a 

public transit stop.

Students at private schools are disadvantaged in another 

way. Milwaukee children who attend private schools (regardless of grade level) cannot 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, in practice MPS requires private schools to submit 

their transportation rosters 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 school year. The roster requirement and July 1 cutoff date apply only to private 

schools. Late and mid-year enrollees in the District’s own 

schools are not denied free transportation. 

* * *

St. Joan Antida High School challenges 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, its

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

material respects to students in public citywide high schools. 

Yet MPS treats them unequally for purposes of transportation eligibility. They are denied free transportation if they 

live within one mile of a public transportation stop. MPS

does not apply this extra distance requirement to their 

counterparts at public citywide high schools. This difference 

in treatment, the school argues, violates the Fourteenth 

Amendment’s Equal Protection Clause. St. Joan Antida also 
28 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.

My colleagues conclude that the challenged rules do not 

burden a fundamental right and thus do not trigger 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 rationally related to a legitimate governmental interest. This is a 

highly deferential standard. As the majority explains, under 

rational-basis review, (1) the challenged law enjoys a presumption of validity; (2) the government’s actual reasons for 

adopting it do not matter; and (3) the fit between the government’s means and its ends can be both hypothetical and 

very loose. In short, as long as some legitimate governmental 

purpose is conceivably in play and the law might rationally 

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 places persons in the 

same class and directs local governments to treat everyone in

the class uniformly, local governments cannot discriminate 

on the very terms forbidden by state law and expect to 

survive rational-basis review. The Supreme Court explained 

and applied this principle in Allegheny. 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 adjusted stale data on an ad hoc and 

sporadic basis to account for the passage of time. Allegheny,

488 U.S. at 338. In practice this assessment method produced 
No. 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 personal, shall be taxed in 

proportion to its value.” Id. (quoting W. VA. CONST. art. X, 

§ 1). Affected property owners sued, claiming that the 

county’s assessment method violated their rights under the

Equal Protection Clause.

The county maintained that its assessment method was 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. The Court disagreed, though it did 

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

scheme.” Id. “That two methods are used to assess property 

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

moment. The Equal Protection Clause ‘applies only to 

taxation which in fact bears unequally on persons or property of the same class.’” Id. (quoting 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: “The 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 petitioners shall be 
30 No. 18-1673

taxed at a rate uniform throughout the State according to its 

estimated market value.” Id. at 345. State law required 

reasonable uniformity, but the county’s assessment scheme

“systematically produced dramatic differences in valuation” 

for similarly situated properties. Id. at 341. Because the 

valuation method consistently produced results that transgressed the state-law uniformity norm, it was not rationally 

related to a legitimate governmental purpose. Id. at 343–45.

That is, state law negated any conceivable rational basis for 

the local discriminatory practice. The Court found an equalprotection violation. Id. at 346.

As my colleagues observe, the Court later described

Allegheny as “‘the rare case where the facts precluded’ 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 City 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.” IND. CODE § 36-9-39-

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

homeowners the option to 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, spreading the cost across 

the entire municipal tax base. With 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 the case did not implicate Allegheny. 

The statute required Indianapolis to apportion costs 
No. 18-1673 31

equally—which the City plainly 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 says 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 “rare case” because it “involved 

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

Unlike my colleagues, I do not read this last sentence as 

materially changing Allegheny’s fundamental holding. True, 

the Court in Allegheny said that the county’s assessment 

method produced “dramatic differences in valuation,” but 

that statement was descriptive, not doctrinal. If Armour truly 

limits Allegheny to local rules or practices that “dramatically” 

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

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

read this passage from Armour as a doctrinal limitation on 

Allegheny.

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

holding to clear violations of clear state uniformity mandates. If so, we have that here. As I’ve explained, the schooltransportation 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. Districts operating under the city 

option need not provide free school transportation to any 

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

requires “reasonable uniformity in the transportation fur-
32 No. 18-1673

nished to the pupils, whether they attend public or private 

schools.” § 121.54(1)(b).

Put another way, if 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 school, whether 

public or private. § 121.54(2). But because public transit 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 

third way. It provides transportation for students in public

citywide high schools who satisfy the two-mile rule but not 

their counterparts in private citywide high schools. It has 

invoked the city option on discriminatory terms expressly 

forbidden by the statute. That’s an irrational policy choice as 

a matter of law.

It’s true, as my colleagues point out, that § 121.54(1)(b) 

has not been the subject of much appellate litigation in the 

state courts. The Wisconsin Supreme Court has not had 

occasion to address its scope. In one case the state court of 

appeals concluded that the term “reasonable uniformity” in 

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

Educ. 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 districts to provide the same mode of transportation to 

public and private school students. More particularly, the 

plaintiffs argued that if the district 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 rejected that argument. Reading § 121.54(1)(b) in the context of the statutory 
No. 18-1673 33

scheme as a whole, the court noted that the schooltransportation code gives school boards the discretion to use 

any of five different modes of transportation to comply with 

their statutory obligations. See WIS. STAT. § 121.55. The court 

said: “It 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.

That was enough to decide the case, but 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 “many factors affect ... safety and welfare,”

the court deduced from the broader statutory scheme that

“[t]he distance a child lives from school is ... the principal 

factor with which the statutes are concerned.” Id. Acknowledging that § 121.54(1)(b) “is silent regarding 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, the court said that “whatever ... distance standard 

the board chooses, the distance standard must be reasonably 

uniform in its application to public and private school 

pupils.” Id.

The actual holding in St. John Vianney is limited. The 

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

does not require school districts to use identical modes of 

transportation for public and private school students. The 
34 No. 18-1673

court’s extended discussion goes further, suggesting 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 determine 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 

applies 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 uniformity 

mandate forbids precisely this kind of discrimination 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 attending Catholic schools did not receive busing for the entirety of 

their school year.

Addressing the “reasonable uniformity 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 transportation to

Catholic school students when their schools were in session

but the public schools were not. Id. at 478, 479–80. The 

opinion is significant for what it tells us about the dimensions of the reasonable-uniformity requirement: even a oneweek 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 

treatment 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, 241 (1972)).
36 No. 18-1673

Together, St. John Vianney and Hahner make clear that 

MPS’s discriminatory one-mile rule violates the statutory 

requirement of reasonable 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 interests recognized by state 

law as justifications 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, and 

saving money. My colleagues accept these justifications as 

rational reasons for discriminating against private school 

students. With respect, 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 

state law, discriminating between public and private school 

students is not an 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 in 
No. 18-1673 37

Allegheny, the 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 “speak for the West Virginia courts” when it 

found an equal-protection violation in Allegheny. Majority 

Op. at p. 18. My conclusion simply recognizes that the 

statutory uniformity mandate removes the plausible policy 

justifications for this discriminatory local rule, which classifies students on the precise terms forbidden by statute.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 that holding, which flatly contradicts Hahner. Racine Charter One 

held in the alternative that the charter school’s students were not 

similarly situated “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. 18–19. That misunderstands 

Wisconsin’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). But statutory

history is not the same as legislative history. Statutory History, BLACK’S 

LAW DICTIONARY (10th ed. 2014) (“The enacted lineage of a statute, 

including prior laws, amendments, codifications, and repeals.”); Legislative History, id. (“The proceedings 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. Labor &
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 this 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 schools do not suffer the same fate. This policy, too,

violates the state-law requirement of reasonable uniformity, 

leaving no rational basis for the discriminatory treatment.

My understanding 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 injunction against the discriminatory denial of 

transportation to 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 statements of purpose contained in the 

statutory text. Kalal, 681 N.W.2d at 125. Finally, Wisconsin’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.

Further, the 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 state 

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; the

monetary remedy is of course keyed to facts peculiar to the 

school and its students. But the parties have stipulated to 

damages. 

My colleagues share some of my concerns about the rationality of this policy and remand for further clarification 

and development of this claim. As I see it, all that remains to 

be done on remand is to fashion an appropriate injunctive 

remedy 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 thus 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 that it enforces its July 1 roster policy in this 

way. In light of the statutory uniformity mandate, this

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.