Wisconsin attorneys urge high court to overrule voucher program ban

Friday, March 6, 1998

In an attempt to save Milwaukee's embattled parochial school voucher program, Wisconsin state attorneys are seeking to overturn lower court rulings barring public funds from being used to send poor children to private religious schools.

Last year an appeals court invalidated The Milwaukee Parental Choice Program allowing the city's needy students with publicly paid tuition vouchers to attend religious schools. The program, which allows 1,600 students to attend private schools at state expense, cannot be expanded to religious schools because it would subvert the separation of church and state, stated the court.

On March 4 before the Wisconsin Supreme Court, lawyers for the state argued the appeals court decision should be overturned because any tax dollars going to sectarian schools would be incidental. It was further suggested that denying poor children access to private religious schools would actually violate the First Amendment's protection for religious practices and beliefs.

“It is not access to religious schools that makes the Milwaukee parental choice program unconstitutional—it is access to religious schools that makes it constitutional,” said Richard Hutchinson, an attorney for parents challenging the appeals court decision.

Bob Chanin, counsel for the National Education Association, argued the appeals court was correct in concluding Milwaukee's voucher programs not only violate the state's constitution but also the First Amendment's principle of separation of church and state.

“There is no doubt in my mind that the city voucher program is a patent violation of the Wisconsin constitution,” Chanin said. “The Wisconsin Legislature concocted a scheme that they know is unconstitutional—funding religious schools with taxdollars.”

Advocates of voucher programs argue that poor parents are the true benefactors of such programs—not religious schools. Such advocates, like Clint Bolick, litigation director for the conservative Washington-based law firm Institute for Justice, claim that poor parents are deciding to send public funds to sectarian schools, not the government.

The appeals court, however, found that the voucher program runs afoul of the state's constitution which forbids public funds from being used for “the benefit of religious societies, or religious or theological seminaries.” The court moreover implied that program would subvert the Establishment Clause of the First Amendment.

Federal and state courts have consistently held that parochial school voucher programs run afoul of the First Amendment's separation of church and state principle by providing direct government support for religion.

Last year an appeals court in Ohio ruled that the Cleveland voucher program violated the Establishment Clause finding it a direct subsidy to religious institutions. The Ohio Supreme Court, however, permitted the voucher system to continue this year pending review of the lower court decision.

In Vermont, the state education department pulled funding from a local school district when it created a voucher program including sectarian schools. Voucher proponents in the state filed a legal challenge against the state's actions.