St. Augustine School v. Jill Underly

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 Hart-

ford, Wisconsin, requested transportation benefits from the

State of Wisconsin. Wisconsin provides such benefits for par-

ents 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 do-

ing, the state authorities were attempting to follow a Wiscon-

sin law that stipulates that only one school from a single or-

ganizational entity in each “attendance area” may qualify for

benefits. See Wis. Stat. § 121.51. But the links between St. Au-

gustine 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. Tay-

lor, 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Ct. 2804 (2022) (mem.), one nonprecedential disposition from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 pub-

lished opinion from the Supreme Court of Wisconsin, St. Au-

gustine 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 interpreta-

tion of the relevant state law in St. Augustine III, we concluded

that the Superintendent’s denial of transportation benefits vi-

olated Wisconsin law, because it rested on an improper meth-

odology 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 reme-

dies 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 illus-

trates. 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 ben-

efits. 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 associ-

ated 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 entangle-

ment with religious matters. The school district, and ulti-

mately 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 in-

kind or financial, and this case has focused on the latter op-

tion. The parties agree that the cost of those transportation

benefits is $1,500 per year. Friess Lake denied the request be-

cause in its view there was already a Catholic school, St. Ga-

briel School, operating in the same attendance area and re-

ceiving transportation benefits.

The Forros appealed the denial to the Superintendent

(Tony Evers at the time, now Jill Underly). St. Augustine ar-

gued that, unlike St. Gabriel, it is not affiliated with the Arch-

diocese of Milwaukee and it follows a different religious cur-

riculum. 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 Superin-

tendent 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 be-

tween 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 ve-

hicle for pursuing the claim; it may be based on any type of

legal source, whether a constitution, statute, precedent, or ad-

ministrative law. The specific theory dictates what the plain-

tiff 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 Superin-

tendent 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 Amend-

ment. 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 legisla-

tive purpose”; that the “primary effect” of the policy “ad-

vance[d] or inhibit[ed] religion”; or that the policy “foster[ed]

‘an excessive government entanglement with religion,’” fol-

lowing Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971) (quot-

ing 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 For-

ros’ 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 Wiscon-

sin’s common-law certiorari review and its Uniform Declara-

tory Judgments Act, Wis. Stat. § 806.04. “Certiorari is a mech-

anism by which a court may test the validity of a decision ren-

dered 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 inva-

lid 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 repre-

sented 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 De-

claratory Judgments Act, the Forros could have established

their entitlement to a declaration of “rights, status, and other

legal relations” and any supplemental relief, including dam-

ages 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 supple-

mental jurisdiction over the state-law theories, see 28 U.S.C.

§ 1367. In June 2017, the district court granted summary judg-

ment to the defendants on the federal-law theories. With re-

spect 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 neu-

tral or not generally applicable. As for the Establishment

Clause, the Forros had attempted to show that the school dis-

trict and Superintendent had impermissibly entangled them-

selves 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 the-

ories in defendants’ favor, the court relinquished supple-

mental 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 pro-

ceedings.” Wis. Stat. § 808.08. Plaintiffs chose not to file any-

thing in state court, but they did appeal the district court’s de-

cision 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 appeala-

ble 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 ad-

dressed 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 ap-

peal 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 sec-

tion 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 Exer-

cise 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 con-

cern 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 prin-

ciples 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 ef-

fectively compelling it and its families to change their denom-

inational identification. See St. Augustine I, 906 F.3d at 604–06

(Ripple, J., dissenting). That said, once St. Augustine I was de-

cided, 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 interven-

tion. They first petitioned for rehearing or rehearing en banc;

when those requests were denied, they petitioned the Su-

preme Court for a writ of certiorari. The Supreme Court issued

that writ, vacated our judgment in St. Augustine I, and re-

manded the case to us for further consideration in light of Es-

pinoza 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 Espi-

noza to see how it affected this litigation. See St. Augustine II,

2021 WL 2774246, at *2. Espinoza involved an as-applied chal-

lenge to a Montana constitutional provision that affirmatively

banned aid to sectarian schools (“no-aid provision”). Montana

had developed a state scholarship program for students at-

tending private schools, but the Montana Supreme Court dis-

solved the program because it thought that scholarships for

students from religious schools would violate the no-aid pro-

vision. 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. Eli-

gibility for this government benefit required a school to “di-

vorce 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 re-

quired 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 ques-

tion 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 Su-

perintendent may examine the school’s corporate documents

and “may also consider the professions of the school with re-

gard to the school’s self-identification and affiliation, but the

Superintendent may not conduct any investigation or surveil-

lance 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 involv-

ing “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 de-

cided 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 sponsor-

ing group—the Roman Catholic Church—because their reli-

gious 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 Superinten-

dent properly applied Wisconsin law … .” Id. at 451. Since the

Superintendent’s denial of St. Augustine’s transportation ben-

efits 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 ju-

risdiction 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 fed-

eral theories, to instruct a district court to reconsider a deci-

sion 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 sup-

plemental 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 re-

mand. 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 sum-

mary 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 in-

junction, and $9,000 in damages ($1,500 in transportation ben-

efits 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 be-

cause St. Augustine IV said there was no need to reach the fed-

eral constitutional issues in the case, the law of the case doc-

trine 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 pur-

sue those actions in state court) had boxed them out of receiv-

ing 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 on-

going violation of federal law.

The district court shared the parties’ consternation about

what exactly was before it. But it decided to interpret St. Au-

gustine IV as “implicitly reinstat[ing] the plaintiffs’ state-law

[theory].” Because the Forros made no argument for relief un-

der state law, the district court concluded that they had

“waived any entitlement to damages or injunctive relief un-

der 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 dis-

trict court nor the parties considered what relief might be

available in an action under the Forros’ other state-law theo-

ries, 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 de-

claratory judgment reflecting that ruling. At that point, St. Au-

gustine 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 an-

other appeal. As it had concluded in 2017, the court found no

violation of either Religion Clause. That resolved the case ex-

cept 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 fed-

eral questions. The school district joins the Superintendent’s

brief and adds a few arguments about how we should calcu-

late damages if we decide that a monetary award is appropri-

ate.

II

Because this is an appeal and cross-appeal from a sum-

mary 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 at-

tacking the district court’s decision to refrain from reaching

the federal constitutional issues in this case. They take the po-

sition 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 deci-

sion 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. Au-

gustine’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 be-

cause nothing else was left in the case after the court re-

manded 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 re-

solved 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 juris-

diction. When jurisdiction over state-law theories has been re-

linquished but the federal basis of the suit is reinstated on ap-

peal, 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 su-

preme 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 consti-

tutional 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 pro-

vide 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 Mad-

ison, 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 predi-

cated 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 constitu-

tional 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 fed-

eral remedy is supplementary to the state remedy, and the lat-

ter 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 gener-

ally 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 sus-

tained, will obviate the necessity of determining the Four-

teenth 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 con-

stitutional adjudication. See Jean, 472 U.S. at 854–55 (holding

that the governing statute provided adequate relief to peti-

tioners 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 Associa-

tion 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 Espi-

noza, 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. Augus-

tine 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 un-

der 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 ad-

judication 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. Au-

gustine 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 Super-

intendent’s cross-appeal, we conclude that there is no reason

to disturb the district court’s declaratory judgment. For rea-

sons 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 de-

claratory 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 in-

voke sovereign immunity, but her sovereign immunity de-

fense 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 Amend-

ment 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 dis-

trict’s arguments about any limitations on the Forros’ entitle-

ment to compensatory payments.

III

We AFFIRM the judgment of the district court. Its declara-

tory 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 attor-

neys’ 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 accord-

ance 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 progres-

sively 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 con-

clusions 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 ba-

sis of the subsequent appellate proceedings. That decision

and order did two things. First, it determined that the plain-

tiffs’ 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 Major-

ity 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 di-

vided 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 dis-

trict court’s final judgment, including the parts of the judg-

ment that remanded the state-law theories to state court.” Ma-

jority Op. 9. Although, as a technical matter, our appellate re-

view 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 pos-

ture 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 peti-

tioned 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 infe-

rior 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 liti-

gation.” 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) oper-

ated—specifically, “what methodology for determining affil-

iation 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 Wis-

consin 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 im-

plied, without stating outright, that we understood the de-

fendants’ actions in this case to be unconstitutional under Es-

pinoza. 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 in-

quiry that the superintendent had in fact made, “then we [had

to] consider first whether Espinoza renders that state law in-

valid 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 am-

biguous opinion that has confounded almost everyone in-

volved 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 re-

mand 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 en-

tanglement with religious matters. We conclude that [the defendants’] de-

cision in the case before us was not justified by neutral and secular con-

siderations, but necessarily and exclusively rested on a doctrinal determi-

nation that both St. Augustine and St. Gabriel’s were part of a single spon-

soring 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 re-

vived with our decision in St. Augustine IV. The majority says that relin-

quishment 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 the-

ories.” 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 juris-

diction 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 dis-

trict 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 rein-

states Armstrong’s federal claims, on remand the district court should en-

tertain 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 prop-

osition that state-law claims relinquished pursuant to § 1367(c)(3) are au-

tomatically 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 ef-

fect,” 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 ret-

rospect, 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 re-

main[ed]” was to apply the Wisconsin Supreme Court’s guid-

ance. 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 man-

date 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’ par-

ticular 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 de-

vice 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 ques-

tions” 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 con-

stitutional 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 de-

fendants’ actions violated the Religion Clauses of the Consti-

tution, 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 adju-

dicate the constitutional claims, we must do so.

I respectfully dissent.