School Choice & Charters

Court Allows Vouchers in Milwaukee

By Mark Walsh — June 17, 1998 5 min read

Proponents of private school vouchers may finally have the U.S. Supreme Court showdown they’ve been waiting for.

The Wisconsin Supreme Court last week upheld a 1995 state law that expanded the pioneering Milwaukee voucher program to include religious schools.

Critics of the program, including the National Education Association, say they plan to appeal--and that’s fine with voucher supporters.

“We couldn’t have asked for a stronger opinion to defend on appeal,” said Clint Bolick, the litigation director of the Washington-based Institute for Justice, which represents a group of low-income Milwaukee families who could receive vouchers under the expanded program. “We feel very strongly we’d like to resolve any remaining questions about the constitutionality of school choice, and this is an awfully good case.”

Clint Bolick

The Wisconsin court’s 4-2 ruling could have an impact far beyond the borders of the Milwaukee school district. For the first time, a state high court accepted the central argument of the private-school-choice movement that providing a tuition voucher to parents who then choose a religious school for their children does not violate the U.S. Constitution’s prohibition against government establishment of religion.

The amended Milwaukee Parental Choice Program “places on an equal footing options of public and private school choice, and vests power in the hands of parents to choose where to direct the funds allocated for their children’s benefit,” said the opinion by Justice Donald W. Steinmetz.

The decision could nudge lawmakers in other states to give more serious consideration to voucher programs that include religious schools. It could also lead to a potential national precedent in the U.S. Supreme Court.

It has been a goal of the private-school-choice movement to get a case before the federal justices, whose rulings over the past decade or so have inched closer to acceptance of religious school vouchers, advocates of the government-financed tuition aid believe.

“This is an enormous step forward for one of the most important social welfare ideas in the country,” said Jay P. Lefkowitz, who argued the case in favor of vouchers for Gov. Tommy G. Thompson of Wisconsin.

Opponents of the voucher program said that even before the ruling was handed down on June 10, they had made up their minds to appeal if they lost the case.

“We’ve been saying all along we think the proponents have misconstrued the Supreme Court’s precedents” on government aid to religion, said Robert H. Chanin, the general counsel of the NEA, who helped argue the opponents’ case before the Wisconsin high court. “We’re now prepared to test that.”

$4,400 Vouchers

At issue in the case of Jackson v. Benson was a 1995 plan by Gov. Thompson, a Republican, to expand the existing Milwaukee voucher program tenfold and open up its participation to religious schools.

Under the original 1990 law, a maximum of 1,500 low-income children in the 104,000-student Milwaukee district have been able to participate each year. They have used their vouchers, worth roughly $4,400, to attend nonsectarian private schools.

The legislature in 1995 expanded the program to 15 percent of the public school population, or roughly 15,000 students.

Alan S. Brown, the superintendent of the Milwaukee district, estimated last week that the expanded program could mean a loss of some $100 million in revenue for the public schools. The district loses approximately $4,400 for each student who takes advantage of the voucher program.

“This is no solution to improving the quality of public education in our city and the nation,” Mr. Brown said.

The state supreme court reviewed the new law directly in 1996, but it deadlocked 3-3 with one justice abstaining. A state trial court then ruled that the inclusion of religious schools was a violation of the state constitution’s prohibition against government aid to “religious societies.”

A state appeals court reached the same conclusion last year, and also struck down the expansion of the program’s size. The state supreme court majority upheld the expanded program under both the federal and state constitutions.

Justice Steinmetz stressed the program’s neutrality toward religion.

“A student qualifies for benefits under the amended MPCP not because he or she is a Catholic, a Jew, a Moslem, or an atheist,” he said. “It is because he or she is from a poor family and is a student in the embattled Milwaukee Public Schools.”

The majority said a 1973 U.S. Supreme Court case relied on heavily by voucher opponents did not preclude upholding neutral and indirect aid to religious schools. In that case, Committee for Public Education and Religious Liberty v. Nyquist, the high court struck down a New York state program that provided tuition grants to parents of children in private schools.

The Wisconsin majority said that in a line of cases since Nyquist, the federal high court has established a principle that education aid programs run by the government pass constitutional muster if religious schools receive benefits indirectly and as the result of the private choices of parents.

Washington Bound?

Justice William A. Bablitch, joined by Chief Justice Shirley S. Abrahamson, filed only a brief, two-sentence dissent. He said he agreed with a lower court that the expanded voucher program violated the state constitution.

The lack of a vigorous dissent on such a significant case puzzled legal observers.

“I was disappointed by that,” said Jeffrey J. Kassel, a lawyer who argued against the program for the American Civil Liberties Union of Wisconsin.

The opponents of the program have roughly three months to file an appeal with the U.S. Supreme Court. If the court decides to take the case, it is conceivable it could be argued and decided before the end of its next term in the summer of 1999.

Three other school choice cases are pending before the highest state courts of Arizona, Ohio, and Vermont. In the program most similar to Wisconsin’s, 1,900 Cleveland children are already using vouchers to attend private and religious schools pending a ruling by the Ohio Supreme Court. An appeals court struck down the program, but the state high court has yet to hear arguments.

Gordon Baldwin, a constitutional-law professor at the University of Wisconsin-Madison, said he thought voucher opponents would give more consideration to keeping the Milwaukee case out of the U.S. Supreme Court to keep the justices from creating a national precedent in favor of vouchers.

“That is a significant risk in this case,” he said.

But Mr. Chanin of the NEA, who has been the leading legal strategist against voucher proposals nationwide, said voucher supporters are being overly optimistic.

“We’re not prepared to predict” how the justices will rule, he said. “Anyone who tells you they can predict is either a dreamer or a fool.”

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A version of this article appeared in the June 17, 1998 edition of Education Week as Court Allows Vouchers in Milwaukee

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