Wisconsin Court Upholds State’s Test of Vouchers

By Mark Walsh — March 11, 1992 6 min read
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Justice Shirley S. Abrahamson found that the program violated the consitutional mandate to provide a system of free public education.

The 4-to-3 ruling overturned a 1990 state appellate-court ruling that the state legislature had improperly enacted the plan as a rider to an appropriations bill. The majority of the state supreme court held that the program served the significant state purpose of improving the education of children from low-income families, and thus was not a special-interest measure requiring separate passage under the state constitution.

“Clearly, the program is not only of statewide importance but national significance as well,” said the majority opinion by Justice William G. Callow, “because education of our citizens knows no boundaries and other states could benefit from the knowledge resulting from this innovative experiment.”

The three dissenting justices were sharply critical of their colleagues, contending that the majority was “glossing over” important issues of state law arising from the way the program was enacted.

The Milwaukee choice program has been watched nationally as the first voucher-style plan allowing low-income students to attend nonpublic schools.

National proponents of school choice said the ruling could encourage more state legislatures to enact similar experiments.

“This is the first voucher plan to survive in court,” said Clint Bolick, a Washington lawyer who represented low-income parents whose children participate in the choice program. “Clearly the court thinks this is a legitimate educational reform. I think other legislators will begin to model other plans based on the Wisconsin plan.”

U.S. Secretary of Education Lamar Alexander issued a statement praising the ruling. He said that “choice programs like the one in Milwaukee give lower-income families more of the same choices of all schools that wealthier families already have.”

Opponents of the plan in Wisconsin included the state superintendent of public instruction, Herbert J. Grover, and most other public-school leaders.

Steven B. Dold, an assistant state superintendent of public instruction, said the opponents were disappointed by the ruling.

“We continue to believe [the Milwaukee plan] is exceedingly poor public policy from the standpoint of assuring a high-quality public education for all children,” Mr. Dold said.

562 Enrolled This Year

It was unclear last week whether opponents of the program would take further steps to challenge it. Since the issues resolved in the high court’s March 3 ruling in the case, Davis v. Grover, involved state constitutional law but not questions of federal law, there apparently are no grounds to appeal the decision to the U.S. Supreme Court.

However, the opponents could file a new challenge in federal court if they raised issues of federal law or the U.S. Constitution, legal experts said.

The Milwaukee Parental Choice Program, championed by Gov. Tommy G. Thompson and enacted by the legislature in 1990, authorized up to 1,000 children from low-income families to attend nonsectarian private schools with the help of public funds to be deducted from the state’s education aid to the Milwaukee school district.

The participating private schools receive approximately $2,500 for each child enrolled under the program. At the beginning of the current academic year, 562 students were enrolled at seven schools.

A preliminary evaluation of the program released last fall by a University of Wisconsin researcher gave it a mixed grade. The program was attracting students who were not succeeding in the public schools, the report concluded, but some of the private schools involved had experienced problems and many first-year participants did not return this past fall. (See Education Week, December 4, 1991.)

Special-Interest Claim Rejected

Pending the outcome of the appeal to the state supreme court, the choice program continued after being struck down in November 1990 by a state appellate court. (See Education Week, Nov. 21, 1990.)

In a narrowly drawn decision, the appeals court held that the legislation creating the program was a “private or local-interest” bill that required separate passage. The program was adopted separately by the Wisconsin House, but it was included as a rider to an appropriations bill after little debate in the Senate.

The majority on the high court held last week that the choice program was not a special-interest bill.

Despite its title, Justice Callow said, the program was established using language for a legal classification of big cities that currently includes only Milwaukee. Because of the city’s socioeconomic characteristics, it makes a perfect site for a test of an experimental educational program such as the choice plan, the ruling said.

Furthermore, Justice Callow wrote, the “program is not an abandonment of the public school system,” because no more than 1 percent of the students in the Milwaukee public schools could participate.

Broader Issues Addressed

The majority also examined two legal theories challenging the program that were not addressed by the appellate court and that may have more relevance in other states.

The first was a provision of the Wisconsin constitution requiring “uniform” public schools. Opponents of the plan argued that the private schools receiving state funds violate the clause by offering a “character of instruction” different from that of the public schools.

But Justice Callow said the payment of public money to a private school does not transform it into a public school.

The opponents also contended that the state constitution’s doctrine requiring public funds to be spent for public purposes prohibits the state from paying to educate the “choice” students without adequate supervision and control of the private schools.

The program includes requirements for private-school reports to the state superintendent on academic achievement, attendance, dropout rates, and other matters, which “provide sufficient and reasonable control” to meet the public-purpose requirement, Justice Callow wrote.

Despite stating at the outset of the 40-page majority opinion that “we pass no judgment on the wisdom or desirability” of the choice plan, the majority later appears to strongly endorse the concept.

Citing research on school organization by John E. Chubb and Terry M. Moe, two prominent advocates of choice, Justice Callow asserted that the program will encourage “competition between the public and private educational sectors for students of low-income families.”

Justice Louis J. Ceci was even more enthusiastic in his support for the program.

“Let’s give choice a chance!” he declared in a concurrence. “Literally thousands of schoolchildren in the Milwaukee public school system have been doomed because of those in government who insist upon maintaining the status quo.”

Constitutional Concerns

In separate opinions, the three dissenting justices cited a number of concerns.

Chief Justice Nathan S. Heffernan asserted that the bill was really designed to benefit only Milwaukee, and so its passage as part of a “multi-subject” appropriations bill violated the constitution just as the lower court found.

Justice Shirley S. Abrahamson found that the program violated the constitutional mandate to provide a system of free public education.

“The legislature could not disband the public school system and pay every student in the state or every private school a sum for education,’' she wrote. “The constitution prohibits the legislature from diverting state support for the district schools to a duplicate, competitive system of schools.”

Justice William A. Bablitch said the program further violated the constitution by authorizing only certain private schools within the city limits to participate.

“One can only conclude that the authors of this legislation intended to benefit only private schools located within the city,” he wrote, “and there are no reasons given to support that discrimination.”

A version of this article appeared in the March 11, 1992 edition of Education Week as Wisconsin Court Upholds State’s Test of Vouchers


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