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Ground-Breaking Voucher Program In Wis. Rejected

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In a narrowly focused decision, a state appellate court in Wisconsin last week struck down the Milwaukee public schools' ground-breaking parental-choice program.

The 24-page ruling, considered certain to be appealed to the state supreme court, hinges on the method used by the legislature to enact the controversial program offering certain low-income parents state-funded vouchers for the private education of their children.

The decision by the Fourth District Court of Appeals, which will not be final until 30 days have passed, left uncertain whether the nearly 400 children now attending non-religious private schools under the plan would face a return to public schools.

"It's not entirely clear" whether the program may still operate, said Robert J. Paul, chief legal counsel for the Wisconsin Department of Public Instruction.

"There are all kinds of possible scenarios" for the fate of the program in the current school year, he said. Among the unresolved issues, Mr. Paul said, was whether state Superintendent of Public Instruction Herbert J. Grover--a staunch opponent of the program--would make a quarterly payment to the participating private schools that is due this month, before the close of the 30-day window.

But even members of the coalition that has sought to overturn the plan--including most major public-education groups in the state and the Milwaukee chapter of the National Association for the Advancement of Colored People--said they did not want to see the participating children's schooling interrupted.

"We aren't advocating that children have their lives disrupted," said Richard Collins, president of the Wisconsin Education Association Council, the state's largest teachers' union and one of the groups appealing an August ruling that upheld the plan. (See Education Week, Sept. 5, 1990.)

While there now appears to be a legal foundation for stopping the program launched in September, Mr. Collins said, "we wouldn't want to force the kids back" in the middle of the school year.

And State Representative Polly Williams, who sponsored the choice bill, vowed last week to keep the program alive. "There is no way this program is in jeopardy," she asserted.

"We will find the funding," she said, either from state or private sources. "The bottom line is, we have to help the children."

The appellate court, which did not comment on the merits of the voucher policy, found the program in violation of the Wisconsin Constitution because the legislature included it as a rider to a budget bill earlier this year, rather than considering the plan on its own. (See Education Week, March 28, 1990.)

The constitutional provision is designed to ensure full debate and public disclosure of measures passed by the legislature and preclude bills "benefiting private or local interests from being 'smuggled' through," according to the decision.

The court was right in concluding "you shouldn't ignore the process," Mr. Collins of the teachers' union said. "In this case, the process was ignored."

But Ms. Williams countered that "there was nothing that was sneaky" about the passage of the bill, and that the legislature would not have enacted the measure as a rider if a problem had been anticipated.

The lawmaker maintained that it has been a longstanding, uncontested practice to attach bills, even ones advancing the interests of a local area, to budget measures.

While pleased with the appellate decision, opponents of the choice plan said they would have preferred to see the court rule on two additional constitutional issues raised in the suit: that the plan violates the state constitution's guarantee that schooling be as uniform as possible, and its stipulation that private users of public money be held accountable for the use of those funds.

According to Mr. Paul of the education department, the voucher program will return to legal limbo and questions about its short-term funding will be held in abeyance if the plan's backers file a "petition for review" of the decision with the state supreme court.

Clint Bolick of the Landmark Legal Foundation Center for Civil Rights in Washington, the lawyer for a group of parents and private schools supporting the program, said last week he would "absolutely" file such an appeal.

Mr. Bolick said he remained optimistic in the wake of the decision. The court, he noted, could have issued an injunction against the continuation of the program but chose not to do so.

In addition, Mr. Bolick said, the court's decision had a "silver lining." Even though the court ruled that the procedure for enacting the choice law had been in error, he said, it also suggested that the supreme court consider modifying the legal evaluation of such procedures.

Mr. Bolick said he considered the "highly unusual" decision an "invitation" for the higher court to overturn the appellate ruling.

But Roger Sunby, Superintendent Grover's executive assistant, did not agree with Mr. Bolick's logic. "I think there is a very significant question of whether [the supreme court] would be willing to do that or not."

Whatever the outcome, participants on both sides indicated that the timing of a final resolution of the case probably could not affect this school year.

Of more immediate concern is the short-term funding for the plan. Until an appeal is filed, the payment coming due remains in question, said Mr. Paul.

Without a court clarification of the program's status and Mr. Grover's legal authority in the present situation, the superintendent will simply have make a decision on whether to continue state funding for the vouchers, Mr. Paul said.

"We have to do one thing or another," he said.

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