Voucher proponents say Wisconsin decision would pass constitutional test

Friday, June 19, 1998

Conservative Christian organizations lauded last week's voucher decision by the Wisconsin high court as a godsend for children trying to escape what they see as faltering public schools and a clear signal that the First Amendment is not so rigid as to preclude tax dollars from supporting religious schools.

Other states may begin enacting similar programs at the behest of groups claiming such programs are the only answer to low-quality public schools, however, the U.S. Supreme Court will eventually determine the legality of such programs.

Judge Donald Steinmetz, writing for the Wisconsin Supreme Court majority, decided that Milwaukee's Parental Choice Program could be expanded to include vouchers for children wishing to attend religious schools. Steinmentz did so after concluding that such a plan passes the U.S. Supreme Court's three-pronged test used to determine establishment clause violations: It has a secular purpose, its primary effect is neither to advance nor inhibit religion and it does not create “excessive entanglement” between church and state.

Although the Supreme Court has made numerous rulings regarding financial assistance to religious institutions, it has yet to decide whether government entities can directly fund a secondary student's education at a religious institution. Steinmetz and voucher proponents claim the Supreme Court's three-pronged test is not violated by such plans, but as Bob Chanin, counsel for the National Education Association, said the Wisconsin Supreme Court is not the final word on voucher plans and their effect on the First Amendment.

Conservative constitutional scholars and attorneys are confident the Wisconsin decision would withstand Supreme Court scrutiny.

Michael McConnell, a University of Utah law professor and an avid supporter of vouchers, said that if the Supreme Court decides to review the Wisconsin decision, it will be upheld because it is so clearly reasoned. McConnell said that the lawyers who argued against Milwaukee's voucher plan should not waste their time appealing to the nation's high court.

Kevin Hasson, founder of the Washington, D.C.-based Becket Fund for Religious Liberty, told The Washington Post that Milwaukee's voucher plan posed no constitutional problems because there is “a 15-year line of U.S. Supreme Court decisions saying it's okay to use public funds for education expenses in religious schools.”

Last year the Supreme Court in Agostini v. Felton ruled that a New York program which sent state teachers into religious schools to provide remedial training to students did not run afoul of the First Amendment's establishment clause.

Clint Bolick, litigation director of the Institute for Justice, a Washington, D.C.-based libertarian law firm,– like McConnell and Hasson–cited the Agostini decision as legal evidence that voucher plans are constitutional.

Bolick wrote in a Wall Street Journal commentary this week that “Justice Sandra Day O'Connor acknowledged last year in Agostini v. Felton, that the court has 'significantly changed' its 'understanding of the criteria used to asses whether aid to religion has an impermissible effect.'”

Opponents of vouchers, however, argue that O'Connor meant that the changes only dealt with the court's understanding that “we no longer presume that public employees will inculcate religion simply because they happen to be in a sectarian environment.”

Permitting public school teachers to go into religious schools to instruct students in remedial courses, however, is not the same as directly funding religious education, which is exactly what the Milwaukee plan does. The Wisconsin Supreme Court may find such a setup to be permissible under the establishment clause, but opinions from judges, such as U.S. Supreme Court Justice David Souter will, of course, ultimately be much more important.

Marci Hamilton, a constitutional law scholar and professor at Benjamin Cardozo School of Law, said that in recent cases, such as Agostini, the Supreme Court has made sure “not to tip its hands” on voucher plans.

“Vouchers are a complicated issue because they are framed to be 'neutral,' but in fact they represent a significant infusion of new money into the churches,” Hamilton said. “I do not agree that the court will decide vouchers on the mere fact that it involves education. I certainly would not predict a unanimous court decision.”

Regardless of whether voucher plans are good for needy children stuck in poor public schools, the government must overcome the First Amendment's bar against church-state entanglement before it can fund religious schools directly, say opponents of vouchers.

Rob Boston, assistant director of communications at Americans United for Separation of Church and State, said that proponents of vouchers have forgotten why the Framers created a wall between church and state.

Boston said supporters should hope for the Supreme Court to uphold the principles of Roger Williams, the early colonial governor whose abiding interest was to protect the 'Garden of the Church' from the 'Wilderness of the World.'

Williams, the Puritan founder of Rhode Island, insisted that “worldly corruptions … might consume the churches if sturdy fences against the wilderness were not maintained.”

“If we continue down this path, I would say that in 10 to 15 years, religious institutions will regret they ever heard the word voucher,” Boston said. “Such institutions will become quasi-public schools and subject to an array of government regulations.”

Boston said Wisconsin's Judge Steinmetz failed to appreciate the Supreme Court's test for determining when government-sponsorship of religion violates the establishment clause and Williams' call for government to remain separate from the church.

Steinmetz gave slight regard, Boston said, to the entanglement prong of the Supreme Court's test, only stating that Wisconsin's “regulation of participating private schools, while designed to ensure that the program's educational purposes are fulfilled, does not reach the level of constitutionally impermissible involvement.”

Justice Souter pointed out in last year's Agostini decision, humans have a tendency “to forget the hard lessons, and to overlook the history of governmental partnership with religion when a cause is worthy, and bureaucrats have programs. That tendency to forget is the reason for having the Establishment Clause (along with the Constitution's other structural and libertarian guarantees), in the hope of stopping the corrosion before it starts.”