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Possible High Court Test of Private School Vouchers Debated

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The embattled legislation expanding the Milwaukee school-choice program to include private religious schools has given voucher advocates a test case they believe will lead to a U.S. Supreme Court ruling in favor of the fiercely debated idea.

Until recently, the conventional wisdom in legal circles was that any voucher program that included religious schools would be struck down as a violation of the U.S. Constitution.

The First Amendment bars any government establishment of religion, and the Supreme Court has invalidated a number of state programs designed to aid religious schools. (See box, this page.)

But voucher proponents now believe the climate has changed and that the high court has inched over the past 12 years to a position where it might uphold a choice scheme that includes religious schools.

"It simply isn't a slam dunk either one way or the other," said Michael Heise, an assistant professor of constitutional law at the Indiana University School of Law at Indianapolis.

"One could characterize the trend line of the court as offering some hope" to voucher proponents, added Mr. Heise, who counts himself among the supporters of the idea.

Promising Rulings

Proponents buoy their hopes with a number of high court decisions, starting with a 1983 ruling that narrowly upheld a Minnesota provision granting a tax credit to parents for private school tuition.

Any parent in the state could take the credit for educational expenses, but private school parents clearly gained more because the tuition costs were among the covered expenses.

Since then, the court has issued a series of rulings approving government aid that benefited individual religious-school students in unusual situations, such as government payments for a sign-language interpreter for a deaf student in a Roman Catholic high school.

Ideal Test Case

Since 1990, the Milwaukee choice program has provided vouchers to a limited number of low-income parents to send their children to nonsectarian private schools. A measure passed by the Wisconsin legislature this year and signed into law by Gov. Tommy G. Thompson expanded the program to include religious schools.

In Ohio, a similar measure adopted this year calls for a pilot voucher program for low-income parents in Cleveland to send their children to private schools, including religious schools. The Ohio measure, however, does not take effect until the fall of 1996.

While the Milwaukee expansion has been blocked for the time being by the Wisconsin Supreme Court, voucher proponents are jubilant over the prospect of its reaching the U.S. Supreme Court.

"We would like nothing more than to have this case before the [high court] as quickly as possible," said Clint Bolick, the vice president and litigation director of the Institute for Justice, a Washington-based advocacy organization that ardently promotes private school vouchers.

The institute is representing Parents for School Choice, a grass-roots Milwaukee group that has intervened as a defendant in the court case challenging the expansion of the voucher program.

Mr. Bolick and other voucher advocates say they are confident that if a program such as Milwaukee's reaches the Supreme Court, a majority of the current justices would give it the constitutional green light.

High Hopes

Conservative legal scholars say their views are more than just wishful thinking colored by their ardent support of religious-school vouchers.

They point to the writings of Laurence H. Tribe, a law professor at Harvard University and a prominent liberal legal scholar.

Mr. Tribe has suggested that the high court would uphold a voucher scheme in which parents choose their children's schools from among a range of public and private choices.

"The establishment clause probably would not stand as an obstacle to a purely neutral program, at least one with a broad enough class of beneficiary schools and one that channeled aid through parents and children rather than directly to schools," Mr. Tribe wrote in American Constitutional Law, a widely used legal textbook.

1973 Rulings

Most opponents of voucher schemes disagree.

They question whether the court has moved very far down a path toward approving a program that would send large amounts of government money to religious schools, even indirectly.

"Vouchers are direct assistance to religious schools," argued Barry W. Lynn, the executive director of Americans United for Separation of Church and State, an advocacy organization based in Washington.

"The parent receives the voucher and takes it to the school," he said. "The school goes to the treasury of the state and says, 'I demand the money."'

The group has joined the legal challenge to the Wisconsin voucher expansion, which is being led by the American Civil Liberties Union of Wisconsin and the Milwaukee Teachers' Education Association.

Opponents of religious-school vouchers rely heavily on two Supreme Court rulings from 1973. In Committee for Public Education and Religious Liberty v. Nyquist, the court struck down three New York state programs that aided private schools, the majority of which were Catholic institutions.

The programs involved construction grants for private schools, tuition assistance for low-income private school parents, and a form of tax credit for a larger class of private school parents.

The court rejected arguments that the tuition-reimbursement plan should be upheld because the payments went to parents rather than to the religious schools.

In Sloan v. Lemon, a Pennsylvania case decided the same day, the court struck down a tuition-assistance program that was open to all private school parents.

The court said the program was not saved by making the tuition assistance available to all private school parents. The state still had singled out one class of parents for a benefit, and the aid program still resulted in state financial support of religious education, the court said.

Colleges Seen Differently

The 1973 cases underscore the skepticism the high court has brought to state aid programs that provided significant amounts of money to religious elementary and secondary schools. The court has been less strict about aid that flows to religiously affiliated colleges and universities.

The main reason for that, Mr. Lynn said, is that most religious schools at the K-12 level, particularly Catholic schools, are pervasively sectarian.

They infuse their entire curricula with religious values, he said, while religious colleges are more likely to separate religion as a discipline. Moreover, he added, students in postsecondary schools are more mature and therefore less subject to religious indoctrination.

Different Circumstances

Voucher opponents contend that the court's 1973 rulings remain in force and could serve as the basis for striking down programs such as that in Milwaukee.

"The court has had plenty of opportunities to overturn these, but it has never indicated any interest in doing so," said Mr. Lynn.

Mr. Bolick countered that the Milwaukee program differs from the aid program invalidated in Nyquist. It is one of many school-choice plans available to low-income families in which state aid follows the student to the school, he argued.

For example, in addition to the voucher program, there is a desegregation program in which some Milwaukee students attend public schools in the suburbs.

"I think the court can uphold this program without overturning Nyquist," he said. "But if the facts of Nyquist were assessed in light of the court's more recent framework [on school choice], there is little doubt the court would decide the case differently today."

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