121.51 Definitions. In this subchapter:

(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.

(3) “School board" has the meaning designated in s. 115.001 (7) and includes any governmental agency transporting children to and from public schools.

(4) “School bus" has the meaning designated in s. 340.01 (56).

History: 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.

The provision for the transportation, at public expense, of students to and from private schools on an attendance area basis is constitutional. Vanko v. Kahl, 52 Wis. 2d 206, 188 N.W.2d 460 (1971).

For 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 Art. I, sec. 18. Holy Trinity Community School, Inc. v. Kahl, 82 Wis. 2d 139, 262 N.W.2d 210 (1978).

As construed by the Wisconsin Supreme Court, sub. (1) is a facially neutral and generally applicable law that deprives all private schools—religious and secular alike—of receiving transportation funding already claimed by another school affiliated with the same group or organization. Therefore, the defendants did not violate the free exercise clause of the 1st amendment when they denied a Catholic private school's busing application in reliance on sub. (1) because another school shared its institutional affiliation and served the same catchment zone. St. Augustine School v. Evers, 906 F.3d 591 (2018).

In applying the test of affiliation with a single sponsoring group under sub. (1), state officials must accept a religious organization's self-characterization. In this case, the defendants did not consider the private school's theology or religious practices in violation of the establishment clause of the 1st amendment. Rather, the defendants read and credited the school's statements on its website and busing request form that the school was a Catholic school. The defendants were not required to consider statements in the school's articles of incorporation and bylaws, which purportedly would have shown that the school's leadership disclaimed affiliation with the Catholic Church. St. Augustine School v. Evers, 906 F.3d 591 (2018).

First amendment-based attacks on Wisconsin “attendance area" statutes. 1980 WLR 409.