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Published in Print: October 1, 1998, as A Verdict On Vouchers?

A Verdict On Vouchers?

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School voucher programs face big courtroom tests in the next few months, and the outcomes could either boost the choice movement or cripple it.

Sometime this fall, the U.S. Supreme Court is likely to decide whether to review the constitutionality of Milwaukee's pioneering choice program. It's the first time that the high court has been asked to weigh in on the recent round of voucher proposals, and it follows years of legal wrangling.

Last spring, the Wisconsin Supreme Court ruled that the inclusion of religious schools in Milwaukee's voucher program did not violate the U.S. Constitution's prohibition against government establishment of religion. That ruling paved the way for an expansion of the nine-year-old program this fall. Six thousand low-income children are now attending 86 private schools at state expense, more than ever before under the city's voucher program.

In August, however, opponents of the program asked the U.S. Supreme Court to strike down the use of vouchers at religious schools. "The state of Wisconsin will divert millions of tax dollars each school year from state aid that otherwise would be provided to the Milwaukee public schools," argues the appeal by a coalition that includes teachers' unions, the American Civil Liberties Union, and People for the American Way. That figure-as much as $70 million during the 1998-99 school year alone-would instead be used "to pay for up to 15,000 students to attend private schools, the overwhelming majority of which are pervasively sectarian," the court papers say.

If the justices take the case, they could rule on the Milwaukee program before their new term ends next June. Some voucher advocates believe the justices are poised to approve a voucher program in which parents make the decision on where to direct government aid. Clint Bolick, whose Washington, D.C.-based Institute for Justice represents voucher families in the Milwaukee case, said he will support a review by the Supreme Court, even though his side won in the state supreme court. Bolick and his organization have been trying for years to get a voucher case before the high court in order to establish what they hope will be a national precedent favorable to vouchers.

But in their Supreme Court appeal, voucher foes argue that for the court to uphold the Milwaukee program, it would have to overturn its 1973 ruling in Committee for Public Education and Religious Liberty vs. Nyquist, which struck down a private school tuition-assistance program in New York state.

The opponents' brief argues that if the Constitution "does not allow the state of New York to provide $100 tuition reimbursements to parents who enroll their children in pervasively sectarian private schools because such payments impermissibly advance religion," it cannot allow the Wisconsin program to stand.

Cleveland's state-run voucher program, meanwhile, remained under a legal cloud as it opened its third year this fall. A state appeals court in Columbus ruled last year that it violates federal and state constitutional prohibitions against government aid to religion. Most of the participating private schools are religiously affiliated.

The Ohio Supreme Court has allowed the program to continue while it reviews the case. Arguments were scheduled for late last month, and a ruling could be several months away. Nearly 4,000 low-income children are enrolled in the program, which provides tuition aid of about $2,500 per child this year. Voucher applications in Cleveland have actually been on the decline since the program's inception in 1996, a trend that administrators attribute to improvements in the Cleveland public schools.

Several smaller voucher proposals are also making their way through the courts. The Vermont Supreme Court is expected to rule soon on the town of Chittenden's efforts to allow high school students to use vouchers to attend religious schools. The town, like many in the state with no high schools of their own, pays tuition for its students at private nonsectarian schools or public schools in other communities. It now wants to pay the tuition of students who attend a nearby Roman Catholic high school.

Meanwhile, voucher advocates and opponents from around the country were in a Pennsylvania courtroom earlier this fall to argue over a proposed voucher plan of the Southeast Delaware County district. In June, the 4,100-student district near Philadelphia proposed providing about $1.2 million for tuition assistance to 1,900 students who attend nonpublic schools. Opponents argue that there is no authority under state law to provide such assistance. A ruling is pending.

-Mark Walsh

Vol. 10, Issue 2, Pages 11-12

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