High Court Sidesteps Vouchers

January 01, 1999 4 min read

Though voucher opponents emphasized that the court’s action was not a ruling on the constitutionality of vouchers, some supporters interpreted the court’s action as a “green light” to push for Milwaukee-style plans elsewhere. “By declining to review the Wisconsin ruling, the Supreme Court leaves intact the most definitive court decision to date, which solidly supports the constitutionality of school choice,” says Clint Bolick, litigation director of the Institute for Justice, a Washington, D.C.-based group that represents voucher families in Milwaukee.

The Supreme Court voted 8-1 to let stand a Wisconsin Supreme Court ruling that upheld the legality of the Milwaukee Parental Choice Program. That program is providing more than 6,000 low-income Milwaukee children with publicly funded vouchers to attend private and religious schools. Only Justice Stephen Breyer said he would review the case. As is their custom, the other justices gave no reason for denying the review.

Legal observers on both sides of the lawsuit had expected the court to take the case because of the significant constitutional questions surrounding religious-school vouchers. The appeal filed by voucher opponents, including the Milwaukee Teachers’ Education Association, the American Civil Liberties Union, and People for the American Way, urged the court to clear up those questions. They argued that inclusion of religious schools in the Milwaukee program was prohibited by the 1973 Supreme Court ruling in Committee for Public Education and Religious Liberty vs. Nyquist. In that case, the high court struck down a New York state program that provided tuition grants to parents of children in private secular and religious schools.

But in a ruling last June, the Wisconsin Supreme Court held 4-2 that Nyquist did not preclude the neutral and indirect aid to religious schools provided under the Milwaukee plan. The state court said the Nyquist plan was not neutral because it directed aid exclusively to private schools and their students. The Milwaukee program, the court said, “merely adds religious schools to a range of pre-existing educational choices available to [Milwaukee] children.”

Other state courts are considering voucher plans that could provide the U.S. Supreme Court with future opportunities to weigh in. But with the high court sidestepping the Milwaukee case, experts believe the focus of the voucher debate will shift to the political arena.

The Supreme Court’s action “sends different signals,” says Joseph Viteritti, a professor of public policy at New York University who is writing a book about school choice. From a legal standpoint, he said, the constitutionality of vouchers for religious schools remains an unsettled question. Policymakers in other states shouldn’t assume they’ve been given a “green light” to adopt similar programs. “But there is an amber light out there,” he said, meaning states should proceed with caution.

But voucher opponents fear that lawmakers will assume they’ve been given the go-ahead. “It is, unfortunately, a quite typical tactic to suggest that the denial of review means more than it does,” says Elliot Mincberg of People for the American Way. “We all know legally that it doesn’t mean anything. But there is no question that, politically, people in state legislatures will look at this and say, ‘Gee, if they did this in Wisconsin, why can’t we try this, too?’ ”

Legal uncertainty has hamstrung lawmakers seeking to adopt Milwaukee-style programs aimed at poor children. Though the high court’s refusal to take the Wisconsin case hasn’t erased those questions, it may shift momentum and boost voucher plans. That theory is already being put to the test in Pennsylvania, where voucher supporters are pushing a bill in the legislature. The Supreme Court move was a “positive note” for vouchers, Pennsylvania Secretary of Education Eugene Hickok says.

Two other states where voucher plans are likely to be debated next year will both have governors named Bush. In Texas, Republican Governor George Bush won overwhelming re-election in November after a campaign in which he called for the passage of a pilot voucher program. Voucher proposals died in the last two sessions of the Texas legislature, but some observers in the state believe the idea will have a better chance next year.

In Florida, meanwhile, the voucher issue got a lot of attention in the fall race between Republican Jeb Bush and Democrat Buddy MacKay. Bush, brother of the Texas governor, won the election and has said he will follow through on his plan to introduce a pilot program that would provide vouchers to children in failing public schools.

Voucher proponents have good reason to focus their energies on legislative proposals. Direct-ballot initiatives for private-school choice have not won in any state. In November, Colorado voters overwhelmingly rejected a tax credit for private school tuition. Six years ago, they rejected a voucher referendum. Voters in California, Oregon, and Washington state also have rejected voucher measures in the 1990s.

Chester Finn Jr., president of the Thomas B. Fordham Foundation in Washington and a leading school choice advocate, says ballot measures are probably not the best route for voucher proponents. “We know now from our experiences that the people who think they stand to lose from [school choice] work a lot harder to defeat it than the people who might gain will work to pass it,” he explains.

The Supreme Court’s refusal to review the Milwaukee case is a mixed blessing for voucher proponents, Finn says. “On the one hand, it plainly leaves the Wisconsin decision as the closest thing to the law of the land. On the other hand, it is just the law of Wisconsin.”

--Mark Walsh

PHOTO: Rallying at the Pennsylvania state Capitol, voucher foes protest choice legislation supported by Republican Governor Tom Ridge.
--AP/Wide World