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Court Deadlocks On Vouchers

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Both sides in the debate over government vouchers for students at religious schools are scrambling 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 the 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.)

The deadlock was a setback for Republican Gov. Tommy Thompson, who last year persuaded the high court to expedite its legal review of the case. The court agreed to the fast-track review last August but blocked religious schools from joining the voucher program in the meantime.

The Milwaukee Parental Choice Program, enacted in 1990, provides vouchers worth $3,209 to about 1,115 low-income children. 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. [See "What's Brewing in Milwaukee," September 1995.]

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," says Christopher Ahmuty, executive director of the American Civil Liberties Union of Wisconsin, which helped challenge the expansion.

Robert Chanin, 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," says Chanin, who argued the case on behalf of the opponents.

But supporters of the expanded voucher program also have reasons to be pleased. They say 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," says Kevin Keane, a spokesman for Gov. Thompson. "At least we have the judiciary's mind open to religious school choice."

Gov. Thompson hired former U.S. Solicitor General Kenneth Starr to defend the program in the state supreme court because he did not believe the state attorney general, James Doyle, would defend it vigorously enough. 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. Starr will not work on the case at the trial court level, Keane says, but he could return when it goes back to the state's high court. (The losing side at the trial level will undoubtedly appeal.)

There is already speculation 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 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, says Ahmuty of the state ACLU.

But voucher opponents say 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," Chanin says.

--Mark Walsh

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