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Court Deadlocks on Religious School Vouchers

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Both sides in the debate over government vouchers for students at religious schools scrambled last week to put the best face on the Wisconsin Supreme Court's 3-3 deadlock over the expansion of Milwaukee's voucher program.

Lacking the majority required for a decision, the state high court on March 29 sent the nationally watched case back to a trial court. In a brief opinion, three justices said they would have struck down the 1995 expansion of the program to include religious schools as a violation of the state constitution.

The other three said the expanded program is "limited and experimental and ... remains inoffensive to the dictates" of the federal and state constitutions.

The court's seventh justice had recused herself from the case before it was argued on Feb. 27. (See Education Week, March 6, 1996.)

The deadlock was a setback for Republican Gov. Tommy G. Thompson, who last year persuaded the high court to give an expedited legal review to the expansion of the Milwaukee voucher program to include religious schools. The court agreed to the fast-track review last August, but it blocked religious schools from joining the voucher program in the meantime. (See Education Week, Sept. 6, 1995.)

The Milwaukee Parental Choice Program, enacted in 1990, provides vouchers worth $3,209 to about 1,115 low-income children this year. The expanded program aimed to increase the number of slots to 7,000 this year and 15,000 next year, and to allow about 80 private religious schools to participate.

The supreme court's action pleased voucher opponents.

"The governor went through these exercises trying to bypass the lower courts, but the bottom line is a tie and the injunction stands," said Christopher Ahmuty, the executive director of the American Civil Liberties Union of Wisconsin, which helped challenge the expansion.

Robert H. Chanin, the general counsel of the National Education Association, said the opponents can now mount their full legal challenge in Dane County circuit court in Madison, where the original lawsuit was filed.

"Short of a clear declaration that the statute is unconstitutional, we are delighted with this result," said Mr. Chanin, who argued the case on behalf of the opponents.

But supporters of the expanded voucher program had reasons to be pleased, too. They said opponents were expecting an outright victory in the state supreme court and must have been surprised to find three justices unwilling to foreclose the expanded program.

"They should be scared that three justices supported religious school choice," said Kevin Keane, a spokesman for Gov. Thompson. "At least we have the judiciary's mind open to religious-school choice."

Shifting Players

Gov. Thompson hired former U.S. Solicitor General Kenneth W. Starr to defend the program in the state high court because he did not believe the state attorney general, James E. Doyle, would defend it vigorously enough.

Mr. Starr is a master appellate litigator best known as the independent counsel in the Whitewater investigation into President and Mrs. Clinton's Arkansas business dealings. Mr. Starr will not work on the case at the trial level, Mr. Keane said, but he could return when it goes back to the state high court.

There is already speculation in Wisconsin that the voucher program might face better odds the next time it comes before the supreme court. One of the justices who voted against the expanded program, Chief Justice Roland B. Day, steps down at the end of July. He is being replaced by N. Patrick Crooks, a judge from Green Bay whose election campaign was supported by Gov. Thompson.

"The conventional wisdom is that [Judge Crooks] would vote to uphold the choice program" for religious schools, said Mr. Ahmuty of the state ACLU.

But voucher opponents say that trying to guess the outcome the second time around is pure conjecture.

"The fact that the court is equally divided now is not a predictor of what it will do down the road," Mr. Chanin said.

The spotlight now shifts to Dane County circuit court, where Gov. Thompson's lawyers last week continued their legal maneuvering by trying to remove the trial court judge, apparently because they consider him too liberal. Voucher proponents said they will also try to lift the injunction so that students can receive state aid to enter religious schools next fall--a move that the plan's opponents will fiercely contest.

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