The following are excerpts from the Wisconsin Supreme Court’s Majority
opinion:
The first issue we address is whether the amended MPCP
[Milwaukee Parental Choice Program] violates the Establishment Clause
of The First Amendment To The United States Constitution
The Supreme Court, in cases culminating in Agostini [v. Felton], has established the general principle that state educational assistance programs do not have the primary effect of advancing religion if those programs provide public aid to both sectarian and nonsectarian institutions (1) on the basis of neutral, secular criteria that neither favor nor disfavor religion; and (2) only as a result of numerous private choices of the individual parents of school-age children. The amended MPCP is precisely such a program. ...
Eligibility for benefits under the amended MPCP is determined by “neutral, secular criteria that neither favor nor disfavor religion,’' and aid “is made available to both religious and secular beneficiaries on a nondiscriminatory basis.’' Pupils are eligible under the amended MPCP if they reside in Milwaukee, attend public schools (or private schools in grades K-3) and meet certain income requirements. Beneficiaries are then selected on a random basis from all those pupils who apply and meet these religious-neutral criteria. Participating private schools are also selected on a religious-neutral basis and may be sectarian or nonsectarian. The participating private schools must select on a random basis the students attending their schools under the amended program, except that they may give preference to siblings already accepted in the school. In addition, under the new “opt-out’’ provision, the private schools cannot require the students participating in the program to participate in any religious activity provided at that school.
Under the amended MPCP, beneficiaries are eligible for an equal share of per pupil public aid regardless of the school they choose to attend. To those eligible pupils and parents who participate, the amended MPCP provides a religious-neutral benefit--the opportunity “to choose the educational opportunities that they deem best for their children.’' The amended MPCP, in conjunction with existing state educational programs, gives participating parents the choice to send their children to a neighborhood public school, a different public school within the district, a specialized public school, a private nonsectarian school, or a private sectarian school. As a result, the amended program is in no way “skewed towards religion.’'
The amended MPCP therefore satisfies the principle of neutrality required by the Establishment Clause. ... A student qualifies for benefits under the amended MPCP not because he or she is a Catholic, a Jew, a Moslem, or an atheist; it is because he or she is from a poor family and is a student in the embattled Milwaukee Public Schools. Because it provides a neutral benefit to beneficiaries selected on religious-neutral criteria, the amended MPCP neither leads to “religious indoctrination,’' nor “creates [a] financial incentive for students to undertake sectarian education.’' ...
The amended MPCP, therefore, places on 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. ...
Since the amended MPCP has a secular purpose, does not have the primary effect of advancing religion, and does not create an excessive entanglement, it is not invalid under the Establishment Clause.
