The embattled legislation extending Milwaukee’s school choice program to religious schools has given voucher advocates a test case they believe will lead to a U.S. Supreme Court ruling in their favor.
In August, the Wisconsin Supreme Court blocked the expansion of the city’s choice plan, at least for the time being. Critics of the program had sought the injunction, arguing that including private religious schools in the already controversial choice plan was a violation of the state and U.S. constitutions.
Since 1990, the Milwaukee program has given public money to a limited number of low-income parents so they could send their children to nonsectarian private schools. A measure passed by the Wisconsin legislature this year and signed into law by Gov. Tommy Thompson added religious schools to the mix. [See “What’s Brewing in Milwaukee?,’' September.]
Although the move by the Wisconsin Supreme Court was a setback for voucher proponents, many said they were jubilant over the prospect of the case making its way to the U.S. Supreme Court. “We would like nothing more than to have this case before the Court as quickly as possible,’' said Clint Bolick, vice president and litigation director of the Institute for Justice, a Washington, D.C.-based organization that promotes private school vouchers.
Until recently, the conventional wisdom in legal circles was that any voucher program that included religious schools would be struck down as a violation of the U.S. Constitution. The First Amendment bars any government establishment of religion, and the Supreme Court has invalidated a number of state programs designed to aid religious schools. But voucher proponents now believe the climate has changed and that the Court has inched over the past 12 years to a position where it might uphold a choice scheme that includes religious schools.
“It simply isn’t a slam-dunk either one way or the other,’' says Michael Heise, an assistant professor of constitutional law at Indiana University and a voucher proponent. “One could characterize the trend line of the Court as offering some hope.’'
Advocates point to a number of High Court decisions, starting with a 1983 ruling that upheld a Minnesota provision granting a tax credit to parents for private school tuition. Any parent in the state could take the credit for educational expenses, but private school parents clearly gained more because the tuition costs were among the covered expenses. Since then, the Court has issued a series of rulings approving government aid that benefited individual religious-school students in unusual situations, such as government payments for a sign-language interpreter for a deaf student in a Roman Catholic high school.
Many legal scholars agree that the current Supreme Court would give a program like Milwaukee’s the green light. They point to the writings of Laurence Tribe, a law professor at Harvard University and a prominent liberal legal scholar. Tribe has suggested that the Court would uphold a voucher scheme in which parents choose their children’s schools from a range of public and private offerings. “The establishment clause probably would not stand as an obstacle to a purely neutral program, at least one with a broad enough class of beneficiary schools and one that channeled aid through parents and children rather than directly to schools,’' Tribe wrote in American Constitutional Law, a widely used legal textbook.
Most opponents of voucher schemes don’t see it that way. They question whether the Court has really moved toward approving a program that would send large amounts of government money to religious schools, even indirectly. “Vouchers are direct assistance to religious schools,’' argues Barry Lynn, executive director of Americans United for Separation of Church and State. “The parent receives the voucher and takes it to the school. The school goes to the treasury of the state and says, ‘I demand the money.’ ''
Lynn’s group has joined the legal challenge to the Wisconsin voucher expansion, which is being led by the American Civil Liberties Union of Wisconsin and the Milwaukee Teachers’ Education Association.
Such opponents rely heavily on two Supreme Court rulings from 1973. Those cases struck down three New York state programs that aided private schools, the majority of which were Catholic institutions. The rulings underscore the skepticism the court has brought to state aid programs that provided significant amounts of money to religious schools.
The Court, however, has been less strict about public aid flowing to religious colleges and universities. The main reason for that, Lynn says, is that most religious schools at the K-12 level, particularly Catholic schools, are pervasively sectarian. They infuse their entire curricula with religious values, while religious colleges are more likely to separate religion as a discipline. Moreover, students in postsecondary schools are more mature and therefore less subject to religious indoctrination.
