Wisconsin’s high court says city voucher program can include religious schools

Wednesday, June 10, 1998

The Wisconsin Supreme Court today overturned lower state court decisions barring Milwaukee's voucher program from using tax dollars to send children to private religious schools.

In a 4-2 ruling, the state's high court found that the Milwaukee Parental Choice Program can be expanded to use public funds for pervasively sectarian schools without violating the state constitution or the establishment clause of the First Amendment.

Milwaukee's parental choice program is the only voucher program intending to use public funds for religious schools to have been found constitutional. Voucher programs in Pennsylvania, Vermont, Maine, Ohio and Arizona are entangled in litigation and at the moment barred from supporting religious schools with public funds. Also, last month President Clinton vetoed federal legislation that would have provided tax dollars for needy children in the District of Columbia to attend private religious schools.

Judge Donald Steinmetz, writing for the majority, said the Milwaukee voucher program passes constitutional muster because the state Legislature enacted it for secular reasons and because it would not advance or inhibit religion and would not create an “excessive entanglement between government and religion.”

“The purpose of the program is to provide low-income parents with an opportunity to have their children educated outside of the embattled Milwaukee Public School system,” Steinmetz wrote. “The propriety of providing educational opportunities for children of poor families in the state goes without question.”

Steinmetz concluded the voucher program does not advance nor inhibit religion because it also offers public funds to non-religious schools and leaves the choice of sending children to private religious schools to parents, not the state. The Milwaukee voucher program, as originally passed, required public funds to be sent straight to the religious institutions. The Legislature, however, amended the program to require state funds be sent directly to the participating parents, who would then decide which private school to send their children to.

Milwaukee's program is not tilted toward religious schools, Steinmetz said, because it “gives participating parents the choice to send their children to a neighborhood public school, a different public school within the district, a specialized public school, a private nonsectarian school, or a private sectarian school.”

Steinmetz also said the state would not become overly involved with operations at religious schools in violation of the First Amendment's establishment clause.

“The program does not involve the state in any way with the school's governance, curriculum, or day-to-day affairs,” he 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 majority also concluded that the voucher program does not run afoul of the state's constitution, which bars tax dollars from “religious or theological seminaries” and the state from compelling persons to “attend, erect or support any place of worship, or to maintain any ministry without consent.” Both dissenting justices—like the state's lower courts—ruled that the voucher program did subvert the state's constitution.

Attorneys for citizens who challenged the program as a violation of the separation of church and state said they would file a petition with the U.S. Supreme Court seeking a review of the decision.

Bob Chanin, counsel for the National Education Association, derided the Wisconsin Supreme Court's interpretation of establishment-clause jurisprudence.

“The Wisconsin Supreme Court is not the final word on the First Amendment and we think its analysis is certainly wrong,” Chanin said. “We will ask the Supreme Court to review the decision and are hopeful they will overturn it.”

Steven Green, legal director for Americans United for Separation of Church and State and also an attorney representing the challengers to the voucher program, called the court's ruling a “terrible decision and a crabbed analysis of Supreme Court jurisprudence.”

“The court's analysis is rather novel,” Green said. “The judges go in a direction which the U.S. Supreme Court has not gone.”

Green added that the challengers are contemplating asking the Supreme Court to stay the Wisconsin court's decision. “The U.S. Supreme Court could grant a stay,” he said. “The decision would be an intermediate step while seeking a review by the entire court.”

Elliot Mincberg, legal director for People for the American Way, a D.C.-based civil rights group, said the Wisconsin Supreme Court's action was “a renegade decision, because all other courts—including the U.S. Supreme Court—that have looked at similar voucher plans have found them unconstitutional.”

At the moment, however, the Wisconsin court decision clears the way for expansion of the Milwaukee Parental Choice Program to include religious schools. The decision will permit as many as 15,000 students to attend religious schools on public funds.

Clint Bolick, legal director for the Institute for Justice, a D.C.-based libertarian law firm that was one of several organizations defending the Milwaukee voucher program, praised the decision.

“Today's decision will help school choice spread like wildfire across the nation,” Bolick said. “The court's careful analysis of the constitutional issues provides powerful insight that voucher programs are fully compatible with the principles of the First Amendment.”

Green agreed with Bolick that the decision is likely to reinvigorate proponents of voucher programs.

“Politically, the decision will have wide ramifications,” Green said. “It gives a green light to state legislators to enact voucher programs.”

Nonetheless, Green said he remains confident that Milwaukee's program will ultimately be found unconstitutional because “it provides a blank check for religious schools to use money for any purpose including religious education,” which he contends is a fundamental affront to the establishment clause.