Civil rights advocates ask high court to invalidate Milwaukee voucher program

Tuesday, September 1, 1998

Tommy Thompson, Wisconsin's popular Republican governor, has hailed this year's start of school in Milwaukee as a “new era in education” because of the city's controversial voucher program that gives poor students public funds to attend private, religious schools.

National civil rights groups and some Milwaukee parents, however, see the program as an affront to the First Amendment's clause against government establishment of religion. They want the U.S. Supreme Court to strike it down.

Yesterday afternoon Milwaukee school parents, represented by several civil rights groups such as People for the American Way and the National Association for the Advancement of Colored People, filed a petition with the U.S. Supreme Court asking it to reverse a Wisconsin Supreme Court decision in early June to uphold the voucher program.

The Wisconsin high court ruled 4-2, with one justice abstaining, that the Milwaukee Parental Choice Program can be expanded to include religious schools without violating the state constitution or the establishment clause.

Writing for the majority, Judge Donald Steinmetz concluded that the operation of the Milwaukee program would not involve the state in such a way as to violate the separation of church and state.

“The program does not involve the State in any way with the schools' governance, curriculum, or day-to-day affairs,” Steinmetz wrote. “The State's regulation of participating private schools, while designed to ensure that the program's educational purposes are fulfilled, does not approach the level of constitutionally impermissible involvement.”

The civil rights groups, however, argued in their petition for a writ of certiorari that the Wisconsin court's decision is in direct conflict with a 1973 Supreme Court decision and that the Milwaukee program does in fact violate the First Amendment mandate that “Congress shall make no law respecting an establishment of religion.”

Whether Milwaukee's funding of religious schools violates the Constitution is “central both to the development of this Court's Establishment Clause jurisprudence and to the formulation of this nation's education policy, and it therefore warrants the attention of this Court,” the civil rights groups argued in their 20-plus-page petition.

Elliot Mincberg, executive vice president and legal director of People for the American Way, criticized the Wisconsin court's conclusion that the Milwaukee voucher program was distinguishable from other similar programs invalidated by federal courts. Mincberg also contended that the decision was fallacious and in direct and irreconcilable conflict with the Supreme Court's 1973 ruling in Committee for Public Education v. Nyquist.

“In order for the debate to proceed on how to strengthen public schools, voucher proponents need to understand that under the Establishment Clause, tax dollars may not be used to promote the religious mission of a private school,” Mincberg said.

The New York Legislature enacted a voucher program in 1972 similar to Milwaukee's. New York lawmakers created the program to help poor children stuck in inner-city schools. Milwaukee's program was created for similar reasons.

Despite arguments by New York lawmakers that the voucher program was created for secular, not religious, reasons, the high court invalidated the program in Nyquist, noting that the vouchers “could not, consistently with the Establishment Clause, be given directly to sectarian schools.” The Supreme Court also rejected state arguments that entanglement between church and state can be avoided by sending the public funds directly to the parents.

Mincberg said the Wisconsin decision overturns Nyquist — something that only the U.S. Supreme Court can do.

Clint Bolick, legal director for the Institute for Justice, a D.C.-based libertarian law firm that has defended the Milwaukee voucher program, said Nyquist “left open the constitutionality” of neutral laws that provide public funds to all schools regardless of the sectarian or nonsectarian nature of the schools.

Bolick, in a Wall Street Journal commentary in June, pointed to the Supreme Court's 1997 Agostini v. Felton decision, in which Justice Sandra Day O'Connor said direct aid to religious schools is permissible if “allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis.”

Mincberg and the other civil rights groups argue that Milwaukee's voucher program is similar to the defunct New York one and that it does in fact steer students to religious schools.

As proof, the civil rights groups cite 1995-96 school year statistics that 122 private schools in Milwaukee were eligible to participate in the city voucher program. Of those, 89 were religious. In Nyquist, the high court noted that although the New York Legislature maintained that it was providing more choices to parents and students, the overwhelming majority of participating private schools were religious.

Bolick, however, said the Milwaukee program merely “adds private and religious schools to an existing array of public school options,” and that the public checks are payable to parents, not to the religious schools.

The civil rights groups question the argument that the Milwaukee program is simply giving poor parents more options. The groups noted, in their petition, that the checks must be signed over to the private schools and that the voucher program does not “restrict the uses to which these funds may be put by the schools or the churches that operate them.”

Milwaukee's program operates like this: 1) the state sends a check made payable to a parent to the participating religious school; 2) the parent, by law, must then go to the school and endorse the check.

Mincberg said he could not predict if or when the Supreme Court would decide to review the case. He said it was possible the high court could decide to grant review in late October or early November. If the court did take the case, it could be next summer before it would decide the fate of the voucher program.