Supreme Court lets Wisconsin decision on school vouchers stand

Monday, November 9, 1998

Despite calls from both supporters and opponents of school vouchers for a U.S. Supreme Court opinion on the matter, the court today decided not to review a Wisconsin high court decision upholding vouchers.

The Supreme Court voted 8-1, with Justice Stephen Breyer dissenting, to deny a hearing of the Wisconsin Supreme Court's ruling in Jackson v. Benson.

In June the Supreme Court of Wisconsin became the first state high court to rule that a voucher program funding private sectarian schools did not violate the establishment clause of the First Amendment. In so doing, the Wisconsin court upheld the Milwaukee Parental Choice Program that will permit as many as 15,000 students to attend private religious schools with tax dollars.

Judge Donald Steinmetz, writing for the Wisconsin court majority, said that the U.S. Supreme Court in recent rulings had “established the general principle that state educational assistance programs do not have the primary effect of advancing religion if those programs provide public aid to both sectarian and nonsectarian institutions on the basis of neutral, secular criteria that neither favor nor disfavor religion; and only as a result of numerous private choices of the individual parents of school-age children.”

Represented by national civil rights groups, Milwaukee parents opposed to the voucher plan appealed the decision to the U.S. Supreme Court, arguing that the Wisconsin court had misconstrued establishment-clause jurisprudence. Specifically, the Milwaukee parents argued that the state should not be funneling tax dollars into religious-school coffers.

In September, the American Jewish Congress filed an amicus or friend-of-the-court brief asking the high court to review the Wisconsin decision.

“This case presents an opportunity to confront and bring order to the discordant approaches to the Establishment Clause which now co-exist uneasily in this Court's Establishment Clause cases,” wrote Marc Stern, an attorney for the American Jewish Congress. Stern said the establishment clause “not only guarantees against a national religion, or preferential treatment of one or more religions, but also against funding of religious education.”

Proponents had also hoped the high court would review the Wisconsin decision, although with the hopes the court would affirm the state court decision.

The Institute for Justice, a libertarian law firm that has supported most, if not all, voucher programs nationwide, had also filed a friend-of-the-court brief urging the Supreme Court to take the case.

Richard Komer, senior litigator for the Institute, said he had hoped the high court would take the case and put the constitutional questions of vouchers to rest.

“We supported a granting of cert. because ultimately the high court has to decide this issue,” Komer said. “The constitutional question will continue to hang over any proposed voucher program until the Supreme Court issues a definitive ruling.”

Komer added that “the only positive aspect to come out of the high court action was the fact that the Milwaukee voucher program continues operation.”

Stern also said he was disappointed but not surprised by the high court's action.

“There are two lines of cases out there that either prohibit or permit voucher plans to include religious schools,” Stern said. “The Supreme Court exists to clear these things up and it is disappointing they let the Wisconsin program go unnoticed.”

Stern, however, noted that the high court had not taken many church and state cases in the last year and half. He said it is “possible that the court is so badly split, with neither side believing it can garner a majority.”

It is unfortunate, Stern continued, that “you have a program we think is unconstitutional” remaining in place.

Elliot Mincberg, legal director and executive vice president of People for the American Way, one of the civil rights groups that has fought the Milwaukee program, said voucher supporters should not interpret the high court's action as a victory for voucher programs.

Mincberg said the high court's 1973 decision in Committee for Public Education v. Nyquist remained as precedent. In Nyquist, the high court invalidated a New York program that gave parents public funds to send their children to private religious schools.

“Nyquist is still the law of the land and has not been overturned by the court,” Mincberg said. “Until and unless the Supreme Court changes its mind about Nyquist, it remains unconstitutional to use public money for religious-school vouchers.”

The Wisconsin Supreme Court did not find Nyquist to be a controlling U.S. Supreme Court decision in upholding the Milwaukee voucher program. The high court's action today lets the Wisconsin court's interpretation stand.

Barry Lynn, executive director of Americans United for Separation of Church and State, noted that courts in Maine, Vermont and Ohio were still struggling with the constitutional questions surrounding voucher programs.

“It's very disappointing, but the court can't dodge this forever,” Lynn said. “For the taxpayers of Wisconsin, it means $4,900 in tax dollars will end up being spent on religious instruction for each student. The constitutional problem remains.”