Wis. Stat. § 121.51
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121.51(1)(1) “Attendance area” is the geographic area designated by the governing body of a private school as the area from which its pupils attend and approved by the school board of the district in which the private school is located. If the private school and the school board cannot agree on the attendance area, the state superintendent shall, upon the request of the private school and the board, make a final determination of the attendance area. The attendance areas of private schools affiliated with the same religious denomination shall not overlap unless one school limits its enrollment to pupils of the same sex and the other school limits its enrollment to pupils of the opposite sex or admits pupils of both sexes.
121.51(3)(3) “School board” has the meaning designated in s. 115.001 (7) and includes any governmental agency transporting children to and from public schools.
121.51 HistoryHistory: 1975 c. 120; 1983 a. 189 ss. 185, 329 (17); 1983 a. 512; 1989 a. 31; 1995 a. 27 s. 9145 (1); 1997 a. 27.
121.51 AnnotationThe provision for the transportation, at public expense, of students to and from private schools on an attendance area basis is constitutional. State ex rel. Vanko v. Kahl, 52 Wis. 2d 206, 188 N.W.2d 460 (1971).
121.51 AnnotationFor purposes of sub. (4) [now sub. (1)], and in the absence of fraud or collusion, when a religious school demonstrates by its corporate charter and bylaws that it is independent of, and unaffiliated with, a religious denomination, further inquiry by the state would violate article I, section 18, of the Wisconsin Constitution. Holy Trinity Community School, Inc. v. Kahl, 82 Wis. 2d 139, 262 N.W.2d 210 (1978). But see St. Augustine School v. Taylor, 2021 WI 70, 398 Wis. 2d 92, 961 N.W.2d 635, 21-0265.
121.51 AnnotationIn determining whether schools are “affiliated with the same religious denomination” under sub. (1), the state superintendent is not limited to consideration of a school’s corporate documents exclusively. In conducting a neutral and secular inquiry, the state superintendent may also consider the professions of the school with regard to the school’s self-identification and affiliation, but the state superintendent may not conduct any investigation or surveillance with respect to the school’s religious beliefs, practices, or teachings. St. Augustine School v. Taylor, 2021 WI 70, 398 Wis. 2d 92, 961 N.W.2d 635, 21-0265.
121.51 AnnotationThe Wisconsin statutes do not permit a finding of affiliation under sub. (1) based on a public official’s assessment of how close in doctrine two sectarian schools may be. However difficult it may be, that decision must be made on neutral and secular grounds. The state superintendent may not delve into the nuances of the religious differences that pervade our country and withhold state benefits for reasons that can be tied to the religious preference of the disfavored group. Yet that is what reliance on the label “Catholic” entailed in this case, even if only modestly. Given the fluidity of religious labels and this country’s firm commitment to personal choice and religious diversity, it may be impossible to decide that two entities are affiliated by looking solely at the fact that they both use the same label. Moreover, the state superintendent was not entitled to accept the private school’s self-characterization as Catholic, while at the same time to reject its vociferous insistence that its understanding of what it means to be Catholic is significantly different from that of the diocesan schools. Neither representation was more or less important to the private school’s self-identification. St. Augustine School v. Underly, 21 F.4th 446 (2021).
121.51 AnnotationFirst Amendment-Based Attacks on Wisconsin “Attendance Area” Statutes. Woessner. 1980 WLR 409.
Notes of Decisions
Cited in 12
cases (7 in the last 5 years), 1978–2023 · leading case: St. Augustine School v. Carolyn Stanford Taylor
St. Augustine School v. Carolyn Stanford Taylor (2021)
“Augustine) application for transportation benefits pursuant to Wis. Stat. §§ 121.51 and 121.54. Pursuant to these statutes, private schools are entitled to receive public funding to transport children to their schools, but only one affiliated school per "religious denomination"…”
St. Augustine School v. Jill Underly (2023)
“See Wis. Stat. § 121.51 . But the links between St.”
St. Augustine School v. Jill Underly (2021)
“See Wis. Stat. §§ 121.51 , 121.54. For private-school students, 2 No.”
Holy Trinity Community School, Inc. v. Kahl (1978)
“The statute under which the petition was authorized, and pursuant to which the school board acted, is sec. 121.51(4), Stats.: “ ‘Attendance area’ is the geographic area designated by the governing body of a private school as the area from which its pupils attend and approved by…”
St. Augustine School v. Tony Evers (2018)
“1971), the Supreme Court of Wisconsin focused directly on the language that, on its face, forbids providing transporta‐ tion services to children of religiously operated private schools “affiliated with the same religious denomination” as another school already receiving…”
St. Augustine School v. Evers (2017)
“Augustine called the district and requested that it approve the school’s attendance area under Wis. Stat. § 121.51 (1). The district and the school then exchanged a number of communications.”
State v. Popanz (1983)
“Sec. 121.51(3), Stats. 1981-82, defines a “private school” for the purposes of subchapter IV of chapter 121 relating to transportation aid as “any parochial or private elementary or high school in this state offering any academic grades comparable to those described in s.”
Providence Catholic School v. Bristol School District No. 1 (1999)
“As § 121.51(1), Stats., outlines, a private school's attendance area is proposed by the private school's governing body and then approved by the public school district's school board.”
St Augustine School v. Evers (2022)
“Under the law, as interpreted by the Wisconsin Supreme Court, only one school affiliated with or operated by a single “sponsoring group” may receive benefits within a single attendance area. The law allows religious schools to receive benefits.”
St. Augustine School v. Jill Underly (2023)
“See Wis. Stat. § 121.51 . But the links between St.”
St. Augustine School v. Jill Underly (2023)
“See Wis. Stat. § 121.51 . But the links between St.”
St. Augustine School v. Jill Underly (2023)
“See Wis. Stat. § 121.51 . But the links between St.”
— Wis. Stat. § 121.51(1) — 4 cases
St. Augustine School v. Carolyn Stanford Taylor (2021)
“Augustine) application for transportation benefits pursuant to Wis. Stat. §§ 121.51 and 121.54. Pursuant to these statutes, private schools are entitled to receive public funding to transport children to their schools, but only one affiliated school per "religious denomination"…”
St. Augustine School v. Evers (2017)
“Augustine called the district and requested that it approve the school’s attendance area under Wis. Stat. § 121.51 (1). The district and the school then exchanged a number of communications.”
Providence Catholic School v. Bristol School District No. 1 (1999)
“As § 121.51(1), Stats., outlines, a private school's attendance area is proposed by the private school's governing body and then approved by the public school district's school board.”
St Augustine School v. Evers (2022)
“Under the law, as interpreted by the Wisconsin Supreme Court, only one school affiliated with or operated by a single “sponsoring group” may receive benefits within a single attendance area. The law allows religious schools to receive benefits.”
— Wis. Stat. § 121.51(3) — 1 case
State v. Popanz (1983)
“Sec. 121.51(3), Stats. 1981-82, defines a “private school” for the purposes of subchapter IV of chapter 121 relating to transportation aid as “any parochial or private elementary or high school in this state offering any academic grades comparable to those described in s.”
— Wis. Stat. § 121.51(4) — 1 case
Holy Trinity Community School, Inc. v. Kahl (1978)
“The statute under which the petition was authorized, and pursuant to which the school board acted, is sec. 121.51(4), Stats.: “ ‘Attendance area’ is the geographic area designated by the governing body of a private school as the area from which its pupils attend and approved by…”
— Wis. Stat. § 121.51(l) — 1 case
St. Augustine School v. Evers (2017)
“Augustine called the district and requested that it approve the school’s attendance area under Wis. Stat. § 121.51 (1). The district and the school then exchanged a number of communications.”
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