The debate over whether religious schools may participate in the pioneering Milwaukee voucher program is heading to the Wisconsin Supreme Court--for the second time.
The state high court deadlocked 3-3 last year on the constitutionality of the state’s planned expansion of the 7-year-old Milwaukee Parental Choice Program to include religious schools. The court had considered the nationally watched case on an expedited basis. But the tie vote sent the case back to lower state courts.
A state appeals court ruled 2-1 on Aug. 22 that the inclusion of religious schools in a voucher program violates the Wisconsin Constitution. The court upheld a similar ruling made by a state trial court judge early this year. (“Judge Overturns Expanded Wis. Voucher Plan,” Jan. 22, 1997.)
No religious schools have been allowed to participate in the voucher program while the lawsuit backed by local and state teachers’ unions works its way through the courts. About 1,600 Milwaukee students from low-income families receive vouchers to attend nonsectarian schools at public expense.
The majority of the state Court of Appeals panel said the state constitution clearly bars government funding from flowing into the coffers of private religious schools. Because the voucher expansion failed to pass muster under the state constitution, the majority did not decide whether it also violated the U.S. Constitution’s prohibition against government establishment of religion.
The majority also refused to disturb the trial judge’s invalidation of the state’s expansion of the nonsectarian portion of the choice program. A 1995 state budget bill that opened the program to religious schools also expanded the capacity of the program from about 1,500 Milwaukee students to as many as 15,000.
The appeals court said the legislature could try to expand the nonsectarian portion of the program “with a clean slate” without including religious schools.
Dissenting Voice
In her dissent, Judge Patience D. Roggensack said she would uphold the program under both the state and federal constitutions.
“The state is not advancing religion through the social welfare benefit it provides” through the voucher program, Judge Roggensack said. “It is the individual citizen who chooses to use a state welfare benefit in a setting that has a religious connection.”
Edward S. Marion, a lawyer defending religious school vouchers on behalf of Republican Gov. Tommy G. Thompson, said the appeals court ruling in Jackson v. Benson would be appealed to the state high court.
“It is likely to take the whole school year for the supreme court to hear and decide it,” he said.
