In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 22-2786 & 22-2846
ST. AUGUSTINE SCHOOL, et al.,
Plaintiffs-Appellants/Cross-Appellees,
v.
JILL UNDERLY, et al.,
Defendants-Appellees/Cross-Appellants.
____________________
Appeals from the United States District Court for the
Eastern District of Wisconsin.
No. 2:16-cv-00575 — Lynn Adelman, Judge.
____________________
ARGUED MARCH 31, 2023 — DECIDED AUGUST 14, 2023
____________________
Before EASTERBROOK, RIPPLE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. This long-running case arose in 2015,
when Amy and Joseph Forro, whose three children attended
St. Augustine School, a self-identified Catholic school in Hartford, Wisconsin, requested transportation benefits from the
State of Wisconsin. Wisconsin provides such benefits for parents who send their children to private sectarian schools. See
Wis. Stat. § 121.54. This time, however, the responsible school
district and the state superintendent of public instruction (the
2 Nos. 22-2786 & 22-2846
Superintendent) denied the parents’ request because the state
was already providing transportation benefits to St. Gabriel,
another Catholic school operating in the same area. In so doing, the state authorities were attempting to follow a Wisconsin law that stipulates that only one school from a single organizational entity in each “attendance area” may qualify for
benefits. See
Wis. Stat. § 121.51. But the links between St. Augustine and St. Gabriel were only skin-deep. Although they
both proclaim an affiliation with Catholicism, the two schools
are not affiliated with one another in other significant ways.
This fact led St. Augustine and the Forros to sue for benefits
they believe were wrongfully withheld. (Unless the context
requires otherwise, we refer to the plaintiffs collectively as the
Forros.)
Several years of litigation ensued, including a trip up and
back from the U.S. Supreme Court, St. Augustine School v. Taylor, 141 S. Ct. 186 (2020) (mem.), two published opinions from
this court, St. Augustine School v. Evers,
906 F.3d 591 (7th Cir.
2018) (St. Augustine I), and St. Augustine School v. Underly,
21
F.4th 446 (7th Cir. 2021) (St. Augustine IV), cert. denied,
142 S.
Ct. 2804 (2022) (mem.), one nonprecedential disposition from
this court, St. Augustine School v. Taylor, No. 17-2333,
2021 WL
2774246 (7th Cir. Feb. 16, 2021) (St. Augustine II), and a published opinion from the Supreme Court of Wisconsin, St. Augustine School v. Taylor,
2021 WI 70 (St. Augustine III). After all
that, the Forros were vindicated. In St. Augustine IV, with the
benefit of the state supreme court’s authoritative interpretation of the relevant state law in St. Augustine III, we concluded
that the Superintendent’s denial of transportation benefits violated Wisconsin law, because it rested on an improper methodology for determining affiliation between two schools of
similar faith. The case is now back before us again. All that is
Nos. 22-2786 & 22-2846 3
left to decide is whether the district court erred in the remedies it imposed based on this confirmed state-law violation.
Seeing no reversible error, we affirm.
I
We are concerned with the State of Wisconsin’s statutory
scheme for providing transportation benefits to students who
attend private schools. See Wis. Stat. §§ 121.51, 121.54. This is
a topic that both we and the Supreme Court of Wisconsin have
explored carefully, as the history we have just reviewed illustrates. We provide further details here.
A
Wisconsin law requires local school districts to provide
transportation benefits to private schools, see Wis. Stat.
§ 121.54, but it sets limits on that obligation. Pertinent here, in
each geographic attendance area, only one school “affiliated
with the same religious denomination” may claim those benefits. See
Wis. Stat. § 121.51. To avoid a possible constitutional
problem if only religiously affiliated schools were restricted,
the Supreme Court of Wisconsin years ago interpreted
Wis.
Stat. § 121.51 more broadly, so that it applies to “all private
schools affiliated or operated by a single sponsoring group, …
secular or religious.” State ex rel. Vanko v. Kahl,
52 Wis. 2d 206,
215 (1971). The law contemplates that a second school associated with any group, secular or sectarian, is not entitled to this
benefit; it goes only to the first applicant. Again hoping to
avoid constitutional problems, the state supreme court has
also clarified that the inquiry into religious affiliation must be
limited, lest the state cross the line into improper entanglement with religious matters. The school district, and ultimately the Superintendent, must take a school’s self-
4 Nos. 22-2786 & 22-2846
representations, articles of incorporation, and bylaws at face
value. See Holy Trinity Community School, Inc. v. Kahl,
82 Wis.
2d 139, 157–58 (1978).
St. Augustine School is a private “Traditional Catholic”
school that previously was located within the Friess Lake
School District, though a recent district consolidation has
placed it in the Holy Hill Area School District. Because Holy
Hill is a successor in interest to Friess Lake, this consolidation
has no effect on the issues before us. In 2015, St. Augustine
and the Forros applied for transportation benefits for the three
Forro children. State law permits those benefits to be either inkind or financial, and this case has focused on the latter option. The parties agree that the cost of those transportation
benefits is $1,500 per year. Friess Lake denied the request because in its view there was already a Catholic school, St. Gabriel School, operating in the same attendance area and receiving transportation benefits.
The Forros appealed the denial to the Superintendent
(Tony Evers at the time, now Jill Underly). St. Augustine argued that, unlike St. Gabriel, it is not affiliated with the Archdiocese of Milwaukee and it follows a different religious curriculum. In essence, it disclaims the existence of any common
sponsoring group. Without such a common group, the Forros’
request for benefits should have been granted. The Superintendent concluded, however, that the two schools were both
affiliated with Roman Catholicism. In doing so, he relied on
each school’s self-identification as reflected on its website and
did not probe below each one’s statement that it was Roman
Catholic. Based on that methodology, he denied the appeal.
The Forros then brought this lawsuit.
Nos. 22-2786 & 22-2846 5
B
Since then, the case has been before numerous courts. In
order to place the issues now before us in context, we need to
go back to basics. We begin by recalling the distinction between a legal claim and a theory supporting relief (what the
common law used to call a cause of action). A claim is the set
of operative facts that produce an assertable right in court and
create an entitlement to a remedy. A theory of relief is the vehicle for pursuing the claim; it may be based on any type of
legal source, whether a constitution, statute, precedent, or administrative law. The specific theory dictates what the plaintiff needs to prove to prevail on a claim and what relief may
be available. One lawsuit may raise multiple claims, and each
claim may be supported by multiple theories.
Those concepts play a major role in this appeal. The Forros
filed suit in 2016 against the school district and the Superintendent in state court pursuing a single claim, in the sense of a
common nucleus of operative fact. Simply put, they wanted
transportation benefits for their children. They supported that
claim with several theories, some premised on state law and
others premised on the Religion Clauses of the First Amendment. By way of relief, they asked for a declaratory judgment,
damages, injunctive relief, costs and attorneys’ fees, and any
further relief that might be appropriate.
As parties normally do, the Forros advanced their federal
theories through 42 U.S.C. § 1983, which creates a private
right of action against every state actor who has deprived a
person of rights secured by the federal constitution or laws.
They asserted that their rights under both the Free Exercise
Clause and the Establishment Clause of the First Amendment
had been violated. To show that the school district and
6 Nos. 22-2786 & 22-2846
Superintendent had impermissibly infringed on their right to
free exercise, the Forros had to show that the state actors had
“burdened [plaintiffs’] sincere religious practice pursuant to
a policy that is not ‘neutral’ or ‘generally applicable.’” Kennedy
v. Bremerton School Dist.,
142 S. Ct. 2407, 2422 (2022) (quoting
Employment Division v. Smith,
494 U.S. 872, 880 (1990)).
As for the Establishment Clause, the Forros tried to prove
a violation based on the state’s alleged preference for one
form of Catholicism over another. See Board of Education v.
Grumet, 512 U.S. 687, 703 (1994) (“[G]overnment should
not prefer one religion to another, or religion to irreligion.”).
When this litigation began, the Forros thought that they
needed to show that the state policy lacked a “secular legislative purpose”; that the “primary effect” of the policy “advance[d] or inhibit[ed] religion”; or that the policy “foster[ed]
‘an excessive government entanglement with religion,’” following Lemon v. Kurtzman,
403 U.S. 602, 612–13 (1971) (quoting Walz v. Tax Commission,
397 U.S. 664, 674 (1970)). By now,
however, Lemon has been abrogated by the U.S. Supreme
Court. See Kennedy v. Bremerton School Dist.,
142 S. Ct. 2407,
2427–28 (2022). We mention it here only because its approach
to proving an Establishment Clause violation shaped the Forros’ original pleadings. The Forros also might have shown
that the defendants’ conduct was inconsistent with historical
practices permitted by the Establishment Clause. See Town of
Greece v. Galloway,
572 U.S. 565, 577 (2014).
The Forros also raised state-law theories under Wisconsin’s common-law certiorari review and its Uniform Declaratory Judgments Act, Wis. Stat. § 806.04. “Certiorari is a mechanism by which a court may test the validity of a decision rendered by a municipality, an administrative agency, or an
Nos. 22-2786 & 22-2846 7
inferior tribunal.” Ottman v. Town of Primrose,
2011 WI 18,
¶ 34. Under common-law certiorari, a decision should be invalid if the municipality (or its equivalent) strayed outside its
jurisdiction; used an incorrect theory of law; took an action
that was “arbitrary, oppressive, or unreasonable and represented its will and not its judgment”; or if the evidence called
the decision into question. Id. at ¶ 35. Damages and injunctive
relief are not available under this theory. See Coleman v. Percy,
96 Wis. 2d 578, 588–89 (1980). Finally, under the Uniform Declaratory Judgments Act, the Forros could have established
their entitlement to a declaration of “rights, status, and other
legal relations” and any supplemental relief, including damages or an injunction, deemed “necessary or proper” based on
that declaration.
Wis. Stat. § 806.04.
As we said, the Forros initially filed this case in state court,
but the defendants removed it to federal court because the
section 1983 theories raised federal questions. See 28 U.S.C.
§ 1441. The district court had subject-matter jurisdiction over
those federal questions, see
28 U.S.C. § 1331, and supplemental jurisdiction over the state-law theories, see
28 U.S.C.
§ 1367. In June 2017, the district court granted summary judgment to the defendants on the federal-law theories. With respect to the Free Exercise Clause, the court reasoned that
“plaintiffs have not met their burden to produce evidence
from which a reasonable trier of fact could conclude that the
defendants either have treated or would treat such secular
schools differently”; therefore, plaintiffs could not show that
Wis. Stat. § 121.54 was applied in a manner that was not neutral or not generally applicable. As for the Establishment
Clause, the Forros had attempted to show that the school district and Superintendent had impermissibly entangled themselves with religious matters. The district court was not
8 Nos. 22-2786 & 22-2846
persuaded. It found to the contrary that there was no evidence
of “any participation in, supervision of, or intrusive inquiry
into religious affairs.” Having resolved both federal-law theories in defendants’ favor, the court relinquished supplemental jurisdiction over the state-law theories on the ground
that they “raise[d] a novel or complex issue of State law.” See
28 U.S.C. § 1367(c)(1).
After a case is returned to state court on remand from a
federal district court, Wisconsin law allows a party “within
one year … , [to] make appropriate motion for further proceedings.” Wis. Stat. § 808.08. Plaintiffs chose not to file anything in state court, but they did appeal the district court’s decision and final judgment, thereby keeping the federal case
alive. On appeal, the court of appeals has jurisdiction over the
entirety of the “appealable order.” Fed. R. App. P. 3(c)(4). “An
appellant may designate only part of a judgment or appealable order by expressly stating that the notice of appeal is so
limited,” but “[w]ithout such an express statement, specific
designations do not limit the scope of the notice of appeal.”
Fed. R. App. P. 3(c)(6). 1
Here, the Forros filed a notice of appeal that covered the
entirety of the district court’s decision and order granting
summary judgment. There was no express statement limiting
the notice of appeal to the federal theories. When we addressed that appeal in St. Augustine I, we considered all
1 This is the current language of Rule 3. The Rule was amended in 2021
to make clear that parties are under no obligation to designate every order
of the district court that they wish to challenge on appeal; it is enough to
designate “the judgment—or the appealable order—from which the appeal is taken.” Fed. R. App. P. 3(c)(1)(B). This change did not affect the law
in this circuit, and so it has no effect on the Forros’ case.
Nos. 22-2786 & 22-2846 9
aspects of the district court’s final judgment, including the
parts of the judgment that remanded the state-law theories to
state court. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635,
640 (2009) (“[T]he [district] court’s determination [under section 1367(c)] may be reviewed for abuse of discretion … .”
(quoting 16 Moore’s Federal Practice § 106.05, 106–27 (3d ed.
2009))).
In that first round of appellate review, a majority of the
panel agreed with the district court. St. Augustine I held that
summary judgment was proper with respect to the Forros’
contentions that the state had violated the federal Free Exercise and Establishment Clauses. See 906 F.3d at 596, 598. We
did not expressly rule on the district court’s relinquishment
of supplemental jurisdiction, but there was no need to do so.
The Forros had not convinced us to revive their federal-law
theories, and we had no reason sua sponte to reach the state-law theories.
Judge Ripple dissented in St. Augustine I, expressing concern about the correctness of treating denominational labels
as conclusive. Such an inquiry, he believed, violates the First
Amendment because it does not rely on the same neutral principles that would be used to evaluate a request from a secular
school. The use of denominational labels also impinged on the
personal religious beliefs of St. Augustine, in his view, by effectively compelling it and its families to change their denominational identification. See St. Augustine I, 906 F.3d at 604–06
(Ripple, J., dissenting). That said, once St. Augustine I was decided, the plaintiffs were finished with federal court, save
their ability to seek further review in the Supreme Court.
They also had the option of pursuing their state-law theories
in state court.
10 Nos. 22-2786 & 22-2846
The Forros opted to seek further federal-court intervention. They first petitioned for rehearing or rehearing en banc;
when those requests were denied, they petitioned the Supreme Court for a writ of certiorari. The Supreme Court issued
that writ, vacated our judgment in St. Augustine I, and remanded the case to us for further consideration in light of Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020).
See St. Augustine School v.
Taylor, supra,141 S. Ct. 186.
On remand, as instructed, we took a careful look at Espinoza to see how it affected this litigation. See St. Augustine II,
2021 WL 2774246, at *2. Espinoza involved an as-applied challenge to a Montana constitutional provision that affirmatively
banned aid to sectarian schools (“no-aid provision”). Montana
had developed a state scholarship program for students attending private schools, but the Montana Supreme Court dissolved the program because it thought that scholarships for
students from religious schools would violate the no-aid provision. Espinoza, 140 S. Ct. at 2252–53. The Supreme Court
held that this application of the no-aid provision amounted to
“status-based discrimination,” because it “excluded religious
schools … [based] solely on religious status.”
Id. at 2256. Eligibility for this government benefit required a school to “divorce itself from any religious control or affiliation,” thereby
deterring and punishing “‘the free exercise of religion.’”
Id.
(quoting Trinity Lutheran Church of Columbia, Inc. v. Comer,
137
S. Ct. 2012, 2022 (2017)). The Court summed up its ruling as
follows. “A State need not subsidize private education. But
once a State decides to do so, it cannot disqualify some private
schools solely because they are religious.” Id. at 2261. It did
not matter that the Montana Supreme Court had eliminated
the program altogether; the faulty reasoning used by the state
Nos. 22-2786 & 22-2846 11
supreme court meant that the total dissolution could not “be
defended as a neutral policy decision.” Id. at 2262.
The central lesson we distilled from Espinoza was that a
state law that deprives a person of a benefit on the basis of
religion is unconstitutional. With that in mind, we decided
that “the issue has boiled down to one dispositive question of
state law: what methodology for determining affiliation is required under the relevant Wisconsin statutes?” St. Augustine
II, 2021 WL 2774246, at *2. Finding that the existing guidance
from the Supreme Court of Wisconsin’s decisions in Vanko
and Holy Trinity did not resolve the point, we certified a question to that court, asking what materials a superintendent
may use to determine religious affiliation. We also invited the
court to re-formulate the question, if it deemed such a step to
be appropriate.
Id. at *3.
The Supreme Court of Wisconsin accepted our request for
certification and responded in St. Augustine III. There it held
that “[i]n conducting a neutral and secular inquiry,” the Superintendent may examine the school’s corporate documents
and “may also consider the professions of the school with regard to the school’s self-identification and affiliation, but the
Superintendent may not conduct any investigation or surveillance with respect to the school’s religious beliefs, practices,
or teachings.” 2021 WI 70 ¶ 5. A concurring justice suggested
that the term “affiliated with” should be interpreted as involving “a mutual organizational relationship.”
Id. at ¶ 70–71
(Hagedorn, J., concurring). Shared faith would be relevant but
insufficient, that justice indicated, to answer the question of
affiliation, while “corporate documents, by-laws, and other
types of organizational documents” would be more helpful.
Id.
12 Nos. 22-2786 & 22-2846
With the benefit of this guidance from the state supreme
court, we reversed the 2017 judgment of the district court in
December 2021. See St. Augustine IV, 21 F.4th at 449. We decided that the Superintendent’s decision “was not justified by
neutral and secular considerations, but instead necessarily
and exclusively rested on a doctrinal determination that both
St. Augustine and St. Gabriel’s were part of a single sponsoring group—the Roman Catholic Church—because their religious beliefs, practices, or teachings were similar enough.”
Id.
That is, the state had mistakenly assumed that shared faith
was enough to establish affiliation. We explained that it was
unnecessary “to reach any constitutional issue in this case”;
rather, “it [was] enough to decide whether the Superintendent properly applied Wisconsin law … .”
Id. at 451. Since the
Superintendent’s denial of St. Augustine’s transportation benefits violated state law, and state law as properly construed
entitled the Forros to the transportation benefits they had
been seeking all along, we remanded to the district court to
craft a remedial order.
Id. at 453.
The effect of our remand to the district court was to revive
all of the Forros’ theories, including those based on state law.
That is because a relinquishment of supplemental jurisdiction
is a reviewable decision. Just as importantly, supplemental jurisdiction does not self-destruct if the federal theories on
which it depended are resolved or dismissed. Indeed, it is
common for a court of appeals, in the course of reviving federal theories, to instruct a district court to reconsider a decision to relinquish jurisdiction over state-law theories.
“[W]here all the claims relate to the same set of operative
facts, we will ordinarily reinstate the state-law [theory] along
with the reinstated federal [theory].” Edwards v. Snyder, 478
F.3d 827, 832 (7th Cir. 2007). This is true even if parties have
Nos. 22-2786 & 22-2846 13
begun litigating an issue in state court during the appeal. See,
e.g., Bryan v. BellSouth Communications, Inc.,
492 F.3d 231, 235
(4th Cir. 2007).
Here, unfortunately, the Forros have either overlooked or
disregarded this aspect of supplemental jurisdiction. After St.
Augustine IV (in which, we reiterate, the Forros prevailed on
their claim for transportation benefits), they filed a petition for
rehearing and/or for clarification. They contended that the
state-law theories had vanished from the case because of the
district court’s decision many years earlier to relinquish supplemental jurisdiction. They then reasoned that because there
was no state-law theory validly before us in St. Augustine IV,
there was also no such theory before the district court on remand. What they wanted, plainly, was an opinion discussing
the merits of their federal-law theories, however superfluous
that might have been in light of their victory through the state-law route. The Forros presented this argument in a petition
for rehearing, which we denied, and in a petition for writ of
certiorari, which the Supreme Court denied. St. Augustine
School v. Underly, 142 S. Ct. 2804 (2022) (mem.).
Back before the district court on cross-motions for summary judgment, the Forros ignored state law. Instead, they
urged that there were no state-law theories before the district
court and insisted that the only path to relief was a ruling on
the federal-law theories. Exclusively as a matter of federal
law, they asked for a declaratory judgment, a permanent injunction, and $9,000 in damages ($1,500 in transportation benefits per year, for six years, from 2015 to 2021).
The Superintendent and the school district, for their part,
agreed with the Forros that there was no state-law theory
properly before the district court and thus that no relief could
14 Nos. 22-2786 & 22-2846
be awarded on that basis. They argued in addition that because St. Augustine IV said there was no need to reach the federal constitutional issues in the case, the law of the case doctrine forbade the district court from relying on those theories.
In short, the Superintendent and the district contended that
the Forros’ own strategic decisions (i.e. their failure to oppose
the district court’s remand of the state-law theories or to pursue those actions in state court) had boxed them out of receiving any remedy. The Superintendent also renewed a motion
to dismiss herself from the lawsuit on the ground that she is
immune from suits for damages and is not engaged in an ongoing violation of federal law.
The district court shared the parties’ consternation about
what exactly was before it. But it decided to interpret St. Augustine IV as “implicitly reinstat[ing] the plaintiffs’ state-law
[theory].” Because the Forros made no argument for relief under state law, the district court concluded that they had
“waived any entitlement to damages or injunctive relief under state law.” The district court further noted that damages
and injunctive relief “appear to be unavailable in an action for
common law certiorari under Wisconsin law.” Neither the district court nor the parties considered what relief might be
available in an action under the Forros’ other state-law theories, in particular the Uniform Declaratory Judgments Act.
But, noting that “the Seventh Circuit has already found that
the defendants violated state law by refusing to approve St.
Augustine’s attendance area,” the district court issued a declaratory judgment reflecting that ruling. At that point, St. Augustine filed a motion for $166,000 in attorneys’ fees.
As to the federal-law theories, the district court felt that it
“must abide by [the Seventh Circuit’s] express determination
Nos. 22-2786 & 22-2846 15
that a decision on the constitutional claims is unnecessary,”
but it “express[ed] [its] view on how the constitutional claims
would turn out” as an alternative ruling, should there be another appeal. As it had concluded in 2017, the court found no
violation of either Religion Clause. That resolved the case except for St. Augustine’s fee petition, which the court held in
abeyance pending the outcome of this appeal.
Having recounted that messy procedural history, we can
at last turn to the merits of the parties’ arguments on appeal
and cross-appeal. The Forros have appealed from the court’s
denial of an injunction and damages, as well as its refusal to
rule on their federal-law theories. The Superintendent has
cross-appealed, arguing that the declaratory judgment should
be reversed because there was no state-law theory to support
it and that the law of the case prevents adjudication of the federal questions. The school district joins the Superintendent’s
brief and adds a few arguments about how we should calculate damages if we decide that a monetary award is appropriate.
II
Because this is an appeal and cross-appeal from a summary judgment decision, our consideration of the issues is de
novo. Johnson v. Edward Orton, Jr. Ceramic Found., 71 F.4th 601,
609 (7th Cir. 2023). On cross-motions, “we construe all facts
and inferences therefrom in favor of the party against whom
the motion under consideration is made.” Markel Ins. Co. v.
Rau,
954 F.3d 1012, 1016 (7th Cir. 2020) (quoting In re United
Air Lines, Inc.,
453 F.3d 463, 468 (7th Cir. 2006)).
16 Nos. 22-2786 & 22-2846
A
We begin with the issues raised by the Forros, who are attacking the district court’s decision to refrain from reaching
the federal constitutional issues in this case. They take the position that the district court had an obligation to address all
the theories they presented in support of their clam, even if
one disposes of the claim in their favor. That is incorrect.
After the Supreme Court of Wisconsin issued St. Augustine
III, the Forros filed their statement in accordance with Circuit
Rule 52(b), taking the position that the now-clear violation of
state law could not and did not resolve their case. See 7th Cir.
R. 52(b) (requiring parties to state “their positions about what
action this court should take” following a state court’s decision on a certified question). They doubled down on this
stance in their petition for rehearing after St. Augustine IV.
That petition urged that “there must be resolution of St. Augustine’s constitutional claims.” (emphasis in original). They
reiterate that position now. They assert that the district court
had a duty to reach the federal constitutional questions because nothing else was left in the case after the court remanded all the state-law theories in 2017.
There are a number of flaws in the plaintiffs’ position.
First, it fails to recognize the U.S. Supreme Court’s preference
for constitutional avoidance, if a difficult question can be resolved either by reliance on state law, see Railroad Comm’n of
Tex. v. Pullman Co., 312 U.S. 496, 501 (1941), or on statutory
grounds, see Solid Waste Agency v. U.S. Army Corps of Eng’rs,
531 U.S. 159, 174 (2001). “Prior to reaching any constitutional
questions, federal courts must consider nonconstitutional
grounds for decision.” Jean v. Nelson,
472 U.S. 846, 854 (1985)
(quoting Gulf Oil Co. v. Bernard,
452 U.S. 89, 99 (1981)).
Nos. 22-2786 & 22-2846 17
“Constitutional adjudication” must be “unavoidable.” Specter
Motor Serv. v. McLaughlin,
323 U.S. 101, 105 (1944).
Second, as we already have noted, the Forros are mistaken
about the waxing and waning of a court’s supplemental jurisdiction. When jurisdiction over state-law theories has been relinquished but the federal basis of the suit is reinstated on appeal, those theories do not disappear. To the contrary, they
can be and often are revived in federal court.
The latter is what happened in this case. After the state supreme court spoke, it became apparent that the Forros’ claim
could be resolved on state-law grounds. See St Augustine IV,
21 F.4th at 452. Those theories were always part of the case,
but they ceased being novel or complex after the state court
addressed them. That eliminated the reason for relinquishing
jurisdiction over them.
The Forros contend that we must reach the federal constitutional issues because there is no sustainable state theory
here, but that is plainly not the case. The action of the state
supreme court is dispositive, and we already have concluded
that the Forros are entitled to their transportation benefits as
a matter of state statutory law. Beyond that, they have no right
to demand that the court’s decision be based on one theory
versus another. They complain that state law does not provide the same remedies as federal law would, but that too is
incorrect. Wisconsin’s Uniform Declaratory Judgment Act
grants courts the authority to issue relief supplemental to a
declaratory judgment “whenever necessary or proper.” Wis.
Stat. § 806.04. The Supreme Court of Wisconsin has confirmed
that both injunctive relief and damages are proper forms of
supplemental relief. See Town of Blooming Grove v. City of Madison,
275 Wis. 328, 336 (1957) (“Injunctive relief may be
18 Nos. 22-2786 & 22-2846
granted in aid of a declaratory judgment, where necessary or
proper to make the judgment effective.”); F. Rosenberg Elevator
Co. v. Goll,
18 Wis. 2d 355, 363 (1963) (“[W]here the court has
entered a decree adjudicating the rights of parties and where
the granting of relief in the form of damages may be predicated on that determination of rights, the court making the
determination should also make that award of damages.”).
This covers the full range of remedies, and so we have no need
to consider what would happen if the state offered less than
that.
The Forros also contend that we must reach the constitutional questions because abstention operates differently for
cases brought under section 1983. They rely on language from
Monroe v. Pape, where the Supreme Court rejected the idea
that litigants must exhaust state remedies before suing under
section 1983. 365 U.S. 167, 183 (1961) (“It is no answer that the
State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one
is invoked.”). The Court reiterated this point in Zinermon v.
Burch, explaining that “overlapping state remedies are generally irrelevant to the question of the existence of a cause of
action under § 1983.”
494 U.S. 113, 124 (1990).
But this language has nothing to do with the sequence in
which a court reaches alternative theories for relief, nor does
it address abstention. See Askew v. Hargrave, 401 U.S. 476, 478
(1971) (per curiam) (abstaining from deciding a section 1983
theory because the “state law [causes of action] … , if sustained, will obviate the necessity of determining the Fourteenth Amendment question”); Martha A. Field, Abstention in
Constitutional Cases, The Scope of the Pullman Abstention
Nos. 22-2786 & 22-2846 19
Doctrine, 122 U. Penn. L. Rev. 1071, 1131–33, 1133 n.165 (1974)
(finding no support for a civil rights exception to abstention).
In cases like this one, where the non-constitutional theories
are sufficient to provide a plaintiff with all the relief she seeks,
the Supreme Court has instructed lower courts to avoid constitutional adjudication. See Jean, 472 U.S. at 854–55 (holding
that the governing statute provided adequate relief to petitioners and made it unnecessary to address the constitutional
issue); see also Hsu ex rel. Hsu v. Roslyn Union Free School Dist.
No. 3,
85 F.3d 839, 854, 862 (2d Cir. 1996) (noting the practice
of avoiding constitutional questions and resolving the case in
the plaintiffs’ favor based only on their argument under the
Equal Access Act while avoiding theories for violations of the
Free Exercise Clause, Free Speech Clause, and Free Association Clause). This was precisely what we did in St. Augustine
IV. After determining that we could not complete the Espinoza
analysis without a proper understanding of the applicable
state law, we sought guidance from the state supreme court
on that issue. Unlike the application of Montana law in Espinoza, which was incompatible with the Religion Clauses, the
Wisconsin statute governing transportation benefits did not
disadvantage the St. Augustine (or St. Gabriel) students. All
were entitled to the benefits in question. This was enough to
resolve the concrete dispute before the court, and so it was
unnecessary to reach the constitutional issues. See St. Augustine IV, 21 F.4th at 451–52.
The remaining question is what to do in light of the fact
that the Forros unambiguously waived their right to relief under their state-law theories. If by so doing they hoped to force
us to reach the federal theories, they were mistaken. We will
not allow ourselves to be manipulated into constitutional adjudication in this manner; parties do not have the right to
20 Nos. 22-2786 & 22-2846
compel a court to write what would essentially be an advisory
opinion on a theory that it did not need to reach. St. Augustine
IV provided plaintiffs with a clear path to recovery that they
chose to forego. Litigants are held to their choices, even when
the consequences are harsh. We accordingly see no error in
the district court’s decision to treat their requests for damages
and injunctive relief under state law as waived and to issue
only a declaratory judgment based on the findings of St. Augustine IV.
B
All that is left to resolve is defendants’ cross-appeal, their
renewed motion to dismiss, and a few additional arguments
on the proper scope of the remedy. Looking first at the Superintendent’s cross-appeal, we conclude that there is no reason
to disturb the district court’s declaratory judgment. For reasons already stated, St. Augustine IV reinstated the state-law
theories. The district court thus had supplemental jurisdiction
over them, and on that basis was empowered to issue its declaratory judgment. The Superintendent’s arguments that
such reinstatement is improper disregard the law governing
remands. Nor did action taken by the Forros have the effect
of destroying the district court’s jurisdiction.
Next, we examine the Superintendent’s motion to dismiss.
This was properly denied. The Superintendent attempts to invoke sovereign immunity, but her sovereign immunity defense was waived when she voluntarily joined in the removal
to federal court. See Lapides v. Board of Regents, 535 U.S. 613,
624 (2002) (holding that a state that joins in the removal of
state-law claims to federal court waives its Eleventh Amendment immunity on those causes of action). There is no need to
worry about possible damages or injunctive relief, because
Nos. 22-2786 & 22-2846 21
the district court ruled in the Superintendent’s favor on those
points and we are not disturbing that part of its judgment. For
the same reason, we need not contend with the school district’s arguments about any limitations on the Forros’ entitlement to compensatory payments.
III
We AFFIRM the judgment of the district court. Its declaratory judgment remains in effect against the Superintendent
and Friess Lake, now Holy Hill Area School District. The case
is REMANDED so that the district court may decide what attorneys’ fees St. Augustine and the Forros should be awarded, if
any, given the fact that they have prevailed only to the extent
of obtaining declaratory relief under state law. The district
court should determine their entitlement to costs in accordance with 28 U.S.C. § 1920.
22 Nos. 22-2786 & 22-2846
RIPPLE, Circuit Judge, dissenting. As this case has traveled
its circuitous path, a regrettable analytical fog has progressively obscured the good faith and thoughtful attempts of all
actors, judges and lawyers, to resolve this case. Today, in my
view, despite its best efforts, the majority, impeded by this
fog, further obscures the matter by drawing the wrong conclusions from this muddied procedural history and, in the
process, by departing from the mandate of the Supreme Court
of the United States dated July 2, 2020. I respectfully dissent.
From the beginning of this litigation, the plaintiffs’ federal
constitutional claims have been at the center of this case. The
district court issued a decision and order that has been the basis of the subsequent appellate proceedings. That decision
and order did two things. First, it determined that the plaintiffs’ state-law claims presented a “novel issue of state law, in
that the existing Wisconsin cases d[id] not clearly answer the
question” at issue, and for that reason it decided to relinquish
supplemental jurisdiction over those claims pursuant to
1
28 U.S.C. § 1367(c)(1). Second, the court granted summary
judgment for the defendants on the federal constitutional
2
claims brought under 42 U.S.C. § 1983.
From that point on, the case has been litigated on federal
constitutional grounds. Indeed, on review of the district
court’s decision, in St. Augustine School v. Evers,
906 F.3d 591,
596 (7th Cir. 2018) (St. Augustine I), we stated that “the
1 R.41 at 9.
2
Id. at 17–24. Despite the majority’s suggestion to the contrary, see Majority Op. 8, the district court’s relinquishment of the state claims was not in
any way premised upon the absence of a remaining federal question in the
case.
Nos. 22-2786 & 22-2846 23
constitutional claims” were “the heart of this case,” and a divided panel held that the defendants’ denial of transportation
benefits to the plaintiffs did not violate either of the Religion
Clauses of the federal Constitution. The majority today says
that, in St. Augustine I, “we considered all aspects of the district court’s final judgment, including the parts of the judgment that remanded the state-law theories to state court.” Majority Op. 9. Although, as a technical matter, our appellate review can extend to the entirety of an “appealable order,” Fed.
R. App. P. 3(c)(4), it overstates the situation to say that we
considered the state-law claims in St. Augustine I. We made
note of those claims once in recounting the procedural posture of the case and paid no further attention to them; nor
have they been the focus of any subsequent litigation in the
case.
After the plaintiffs lost their appeal before us, they petitioned for a writ of certiorari from the Supreme Court of the
United States. The Court granted the petition, vacated our
judgment in St. Augustine I, and remanded the case to us for
reconsideration in light of its intervening decision in Espinoza
v. Montana Department of Revenue, 140 S. Ct. 2246 (2020). From
then on, the Supreme Court’s mandate has defined the limits
of our authority in this case. Sibbald v. United States,
37 U.S.
488, 492 (1838) (“When the Supreme Court have executed
their power in a cause before them, and their final decree or
judgment requires some further act to be done, … [t]he inferior court is bound by the decree as the law of the case; and
must carry it into effect, according to the mandate.”).
As the majority observes, “[o]n remand, as instructed, we
took a careful look at Espinoza to see how it affected this litigation.” Majority Op. 10. We “distilled from Espinoza” the
24 Nos. 22-2786 & 22-2846
lesson “that a state law that deprives a person of a benefit on
the basis of religion is unconstitutional.” Id. at 11. To apply
that lesson in full to this case, we determined that we needed
to understand better how Wisconsin Statute § 121.51(1) operated—specifically, “what methodology for determining affiliation is required” under that statute? St. Augustine School v.
Taylor, No. 17-2333,
2021 WL 2774246, at *2 (7th Cir. Feb. 16,
2021) (St. Augustine II). Accordingly, we certified to the Wisconsin Supreme Court the question of how exactly § 121.51(1)
should be interpreted. See id. at *3. That action was, in my
view, an appropriate measure to take in the course of fulfilling
the mandate of the Supreme Court. Our certification order implied, without stating outright, that we understood the defendants’ actions in this case to be unconstitutional under Espinoza. But, in posing the question to the Wisconsin Supreme
Court, we recognized that Espinoza opened up a broader issue
that we needed to address: Was the Wisconsin statute itself
unconstitutional, or had the defendants acted in defiance of
both state law and the federal Constitution? If, in St. Augustine
I, we had properly understood state law as permitting the inquiry that the superintendent had in fact made, “then we [had
to] consider first whether Espinoza renders that state law invalid under the First Amendment’s Religion Clauses.” Id. at
*2. If, on the other hand, we had misunderstood state law and,
contrary to our earlier understanding, the superintendent had
acted improperly under § 121.51(1), then the state law would
not offend the Religion Clauses.
The Wisconsin Supreme Court’s answer (St. Augustine III)
gave us the information needed to resolve that question. With
its guidance in hand, we resumed proceedings and issued our
decision in St. Augustine School v. Underly, 21 F.4th 446 (7th
Cir. 2021) (St. Augustine IV). There, we stated that “all that
Nos. 22-2786 & 22-2846 25
remains is for us to apply the instructions of the state supreme
court to the facts of this case.”
Id. at 448. In a regrettably ambiguous opinion that has confounded almost everyone involved in the case, we seemingly held both that the defendants
had violated the state statute and the federal Constitution,
id.
3
at 448–49, and, simultaneously, that it was not “necessary to
reach any constitutional issues in this case” and that, instead,
it was “enough to decide whether the [defendants] properly
applied Wisconsin law” to the plaintiffs, id. at 451. In other
words, our decision seemed to say at once that the defendants
violated the Constitution and that we refrained from deciding
whether they violated the Constitution.
The majority concludes that it was at this moment that the
plaintiffs’ state-law claims were revived sub silentio and that
it became incumbent upon them to pursue these claims on remand in the district court if they wished to obtain relief. Ma-
4
jority Op. 12–13. The majority is mistaken on this point. I
3 “[A]s a matter of state law [the superintendent] may not delve into ‘the
school’s religious beliefs, practices, or teachings,’ because [that] inquiry
would transgress the First Amendment prohibition against excessive entanglement with religious matters. We conclude that [the defendants’] decision in the case before us was not justified by neutral and secular considerations, but necessarily and exclusively rested on a doctrinal determination that both St. Augustine and St. Gabriel’s were part of a single sponsoring group … because their religious beliefs, practices, or teachings were
similar enough.” St. Augustine IV, 21 F.4th at 448–49 (citation omitted).
4 It is doubtful that the plaintiffs’ state-law claims were automatically revived with our decision in St. Augustine IV. The majority says that relinquishment is “a reviewable decision” and that “it is common for a court
of appeals, in the course of reviving federal theories, to instruct a district
court to reconsider a decision to relinquish jurisdiction over state-law theories.” Majority Op. 12. This is true enough, but the majority fails to note,
26 Nos. 22-2786 & 22-2846
dissent primarily, however, because of a more fundamental
mistake in our decision in St. Augustine IV, a mistake that has
set the stage for the present state of confusion and the major-
5
ity’s ultimate disposition of this appeal.
first, that we nowhere reviewed in any express or implied terms the district
court’s relinquishment decision and, second, that the familiar pattern of
reinstatement unfolds in cases where the district court relinquished jurisdiction pursuant to § 1367(c)(3), not § 1367(c)(1). Put aside the distinction
between subparagraphs (c)(3) and (c)(1), however, and notice that, even
under the majority’s standard, we never affirmatively instructed the district court to reconsider its § 1367(c)(1) order. Compare Edwards v. Snyder,
478 F.3d 827, 832 (7th Cir. 2007) (“[W]here all the claims relate to the same
set of operative facts, we will ordinarily reinstate the state-law claim along
with the reinstated federal claim.” (emphasis added)); Armstrong v.
Squadrito,
152 F.3d 564, 582 (7th Cir. 1998) (“[B]ecause this decision reinstates Armstrong’s federal claims, on remand the district court should entertain supplemental jurisdiction over Armstrong’s state law claims.”);
Zheng v. Liberty Apparel Co. Inc.,
355 F.3d 61, 79 (2d Cir. 2003) (expressly
reinstating state-law claims). The majority cites no authority for the proposition that state-law claims relinquished pursuant to § 1367(c)(3) are automatically reinstated upon reinstatement of the federal claims—much less
that this occurs after a § 1367(c)(1) relinquishment. The notion that these
claims were reinstated sub silentio, and that the plaintiffs overlooked this
procedural nicety at their peril, raises serious questions about notice and
stands in tension with the basic purposes of our rules of procedure—“to
secure the just, speedy, and inexpensive determination of every action and
proceeding.” Fed. R. Civ. P. 1.
5 The Supreme Court denied the plaintiffs’ petition for writ of certiorari
after St. Augustine IV. However, the rule is well-established that, given the
intensely “discretionary nature of certiorari,” the “denial of certiorari does
not indicate any view on the merits.” 16B Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure § 4004.1 (3d
ed. 2012). Indeed, denial of certiorari does not have “any precedential effect,” Hopfmann v. Connolly,
471 U.S. 459, 460–61 (1985), and the Court’s
mandate therefore remained unchanged.
Nos. 22-2786 & 22-2846 27
With all respect to my colleagues, it is clear to me, in retrospect, that we erred in St. Augustine IV when we did not
clearly and unambiguously rule on the constitutionality of the
defendants’ actions. We were incorrect to say that “all that remain[ed]” was to apply the Wisconsin Supreme Court’s guidance. To the contrary, we remained subject to the Supreme
Court’s mandate to reconsider our judgment in St. Augustine
I in light of Espinoza; this obligation called for constitutional
adjudication of the plaintiffs’ First Amendment claims, the
claims we had adjudicated in St. Augustine I. The Court’s
mandate thus invited us to decide whether those claims had
merit in light of Espinoza; acceptable responses to that mandate would have been “we affirm the district court’s grant of
summary judgment on the plaintiffs’ federal-law claims” or
“we reverse the district court’s grant of summary judgment
on the plaintiffs’ federal-law claims.” Reversing the district
court’s judgment on separate grounds was not an option that
was available to us.
To be sure, our certification of a question of state law to
the Wisconsin Supreme Court was, when made, consistent
with the mandate: The issues before us called into question
the constitutional soundness not just of the defendants’ particular actions but also of the state statute under which they
claimed authority to act. Today’s decision assigns another
purpose to the certification: Certification now becomes a device by which the Supreme Court’s mandate is avoided and,
in the process, less than full relief is afforded to the plaintiffs.
The Supreme Court has “consistently held that an inferior
court has no power or authority to deviate from the mandate
issued by an appellate court.” Briggs v. Pennsylvania R. Co., 334
U.S. 304, 306 (1948). Having received the Court’s mandate, we
“cannot vary it, … or give any other or further relief; … or
28 Nos. 22-2786 & 22-2846
intermeddle with it, further than to settle so much as has been
remanded.” In re Sanford Fork & Tool Co.,
160 U.S. 247, 255
(1895). It “violate[s] the mandate … to fail to decide questions” that we have been “directed … to decide.” 18B Charles
Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 4478.3 (3d ed. 2019).
We are obligated to adjudicate the plaintiffs’ federal constitutional claims. Implicitly, we already have taken a view on
them in St. Augustine II and St. Augustine IV. But, because we
have not clearly announced that, in light of Espinoza, the defendants’ actions violated the Religion Clauses of the Constitution, I would vacate our decision in St. Augustine IV, analyze
and adjudicate the question of federal constitutional law, and
remand the case to the district court to craft a remedy.
As the foregoing discussion makes clear, the majority’s
concern with the principle of constitutional avoidance has no
bearing here. Because the Supreme Court directed us to adjudicate the constitutional claims, we must do so.
I respectfully dissent.
