“[E]very generation or so a case comes along when this Court needs to say enough is enough,” Chief Justice Roberts wrote in 2012, “if the Equal Protection Clause is to retain any force in this context.” The context he was referring to was the extreme discretion given to state and local governments to vary the tax rates in ways that seem unfair, so long as there is some minimally rational basis for doing so. But the Chief Justice was writing in dissent. He’s still waiting for his generation’s case.
The Seventh Circuit recently rejected an equal protection challenge to varying bus rules for public and private schools in Milwaukee. That case is probably not the Chief Justice’s white whale. But it raises fascinating questions about how federal judges should read state law when considering an equal protection claim under the rationality test of Allegheny Pittsburgh Coal Co. v. Webster County (1989).
In St. Joan Antida High School Inc. v. Milwaukee Public School District, the Milwaukee Public School District (MPS) imposed a one-mile rule (Policy 4.04) on buses for citywide private schools—kids living within a mile of public transportation do not get a bus to school—but no one-mile rule for citywide public schools. In addition, Policy 4.04 required private schools to submit a roster of students by July 1, but public schools faced no similar deadline. In 2017, St. Joan, a Catholic school for girls, sued in federal court claiming that MPS’s policies violated state law and the federal Equal Protection Clause. The district court dismissed the equal protection claims, reasoning that the policies could be rationally justified on cost-saving or administrative-efficiency grounds, and did not exercise jurisdiction over the state claims.
The Seventh Circuit affirmed the dismissal of the challenge to the one-mile rule and remanded the challenge to the roster policy for further fact-finding. Writing for the panel, Judge Amy J. St. Eve (joined by Judge Amy Coney Barrett) explained that, because the one-mile rule did not burden a fundamental right or involve a suspect classification, it needed to withstand only rational basis scrutiny. Here, the policy could be rationally explained as a way to get more kids into citywide public schools and reduce overcrowding in non-citywide (or “attendance-area”) public schools. As for MPS’s private-school-only roster deadline, the panel found that this could theoretically be rationally justified for reasons of administrative efficiency—but the record did not contain enough facts about how the policy actually worked to determine whether or not it had a rational basis. Accordingly, the panel remanded for further fact-finding.
Judge Diane Sykes dissented, arguing that MPS’s discriminatory policies were legally irrational—and therefore a violation of equal protection—because any rational bases were foreclosed by a Wisconsin law requiring uniformity between public and private school busing. Judge Sykes relied on Allegheny Pittsburgh Coal Co. v. Webster County (1989), in which the Supreme Court held that a local government’s wildly uneven property tax scheme was irrational under the federal Equal Protection Clause when the state constitution expressly provided that “taxation shall be equal and uniform throughout the State.” Here, too, Wisconsin law (§ 121.54(1)(b)) mandated “reasonable uniformity in the transportation furnished to the pupils, whether they attend public or private schools.” Judge Sykes described the background and purposes of this uniformity requirement, from a 1967 constitutional amendment through state case law explaining that it was motivated by concerns for student safety and welfare. Because MPS’s discriminatory policies had no plausible safety rationale, Judge Sykes reasoned, they flouted state law and therefore violated equal protection under Allegheny.
To this the majority replied that subsequent Supreme Court decisions, such as Armour v. Indianapolis (2012), had limited the implications of Allegheny by describing it as “the rare case where the facts preclude any rational basis for the City’s decision” because there was “a clear state law requirement clearly and dramatically violated.” Whether or not MPS’s policies violated the Wisconsin uniformity requirement—the majority “decline[d] to speak for the Wisconsin courts” on this question—was beside the point, since “a mere violation of state law does not bootstrap itself into a violation of the Equal Protection Clause.” The violation must be clear and dramatic. Judge Sykes thought it was a clear violation of state law, but the majority dismissed her reading of Wisconsin law as “draw[ing] on legislative history and potentially comparable lower-court decisions.”
The Allegheny rule is an odd one because, as John Hart Ely observed, it makes “all violations of state law . . . theoretically convertible into violations of the Equal Protection clause.” Some have speculated that it came about partly through the accident of bad lawyering, with tiny Webster County so outmatched by the coal company’s legal team (which included a young John Roberts on the brief) that “[i]f . . . Allegheny had been a prize fight, the referee would have stopped it.” The Court has since been unwilling to strike down a local government’s erratic standards on equal protection grounds, as Chief Justice Roberts ruefully noted in his Armour dissent.
The Seventh Circuit’s decision in St. Joan continues this trend, but the majority’s inadequate reply to Judge Sykes’s dissent suggests that other courts might follow her approach instead. The case raises a tricky question about how federal judges should interpret state law for equal protection rationality review. The two judges in the majority—both recent appointees of President Trump—faulted Judge Sykes for relying on “legislative history.” Judge Sykes, a former Justice on the Wisconsin Supreme Court, retorted in a footnote that Wisconsin courts apply a variant of “textualist” methodology that distinguishes between “legislative history” and “statutory history.” Far from the despised legislative history, statutory history—”[t]he enacted lineage of a statute, including prior laws, amendments, codifications, and repeals,” per Black’s Law Dictionary—“is an accepted part of Wisconsin’s textualist interpretive method,” Judge Sykes explained.
Judges St. Eve and Barrett, not being Wisconsin judges, presumably did not care much about Wisconsin’s textualist interpretive method. Indeed, Professor Abbe Gluck has noted that, in the Erie context of federal judges applying state law, federal courts do not necessarily feel bound by the interpretive methodologies of state courts. But Gluck argues that this is ultimately inconsistent with Erie. A state’s interpretive rules cannot be cleanly separated from its substantive law. On the other hand, the Erie task may be distinguishable from the equal protection analysis under Allegheny, whose touchstone is irrationality and not state law per se.
But the conflict between the Seventh Circuit’s majority and dissent in St. Joan is not really about which strain of textualism prevails on this or that bench. Rather, it is about whether federal judges should do more than merely glance at state law in deciding if a purported rational basis has been foreclosed by law under Allegheny’s equal protection principles. Judge Sykes persuasively showed that the school district’s justification for discriminating against private schools was at odds with Wisconsin’s emphatic policy of “reasonable uniformity.” The majority did not seriously engage with this argument, contenting itself with a nod to the ambiguity of the term “reasonable” and a hasty punt to the state court.
The St. Joan panel preferred that Allegheny stay dead. If other courts follow Judge Sykes’s example, however, Allegheny may have some vigor left.