Law & Courts

‘Green Light’ For School Vouchers?

By Mark Walsh — November 18, 1998 7 min read

The private-school-choice movement claimed new momentum last week after the U.S. Supreme Court let stand a state court ruling that upheld the pioneering Milwaukee voucher program.

While voucher opponents emphasized that the high court’s refusal to review the case was not a ruling on the constitutionality of vouchers for students in religious schools, some supporters said they were free to interpret 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,” said Clint Bolick, the litigation director of the Institute for Justice, a Washington legal organization that represents a group of low-income voucher families in Milwaukee.

The Supreme Court announced Nov. 9 that it would not hear the appeal in Jackson v. Benson (Case No. 98-376). The court voted 8-1 against reviewing a ruling of the Wisconsin Supreme Court that upheld the expanded Milwaukee Parental Choice Program. The state-enacted program is providing vouchers to more than 6,000 low-income Milwaukee children this year to attend private and religious schools.

Only Justice Stephen G. Breyer said he would review the case. As is their custom, the other justices gave no reason for denying review. Legal observers on both sides of the case had expected the high court to take the case because of the significance of the constitutional questions surrounding religious school vouchers.

“This court ... should answer the constitutional question that shrouds the national policy debate over voucher programs,” said the Supreme Court appeal filed by voucher opponents, including the Milwaukee Teachers’ Education Association, the American Civil Liberties Union, and People for the American Way.

Political Arena

The legal challenge to the Milwaukee program was the first from the current generation of voucher programs and proposals to reach the U.S. Supreme Court.

Opponents argued that inclusion of religious schools was prohibited by the 1973 Supreme Court ruling in Committee for Public Education and Religious Liberty v. 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 upholding what it saw as the neutral and indirect aid to religious schools provided under the Milwaukee plan. The court said the Nyquist plan was not neutral because it directed aid exclusively to private schools and their students. The Milwaukee program “merely adds religious schools to a range of pre-existing educational choices available to [Milwaukee] children,” the court said.

Other state courts, including the supreme courts in Ohio, Vermont, and Arizona, are considering voucher and tuition-tax-credit plans that could provide the U.S. Supreme Court with future opportunities to weigh in on vouchers.

But with the high court sidestepping the Milwaukee case, the sense last week was that the focus of the voucher debate would shift for the time being from the legal arena to political and policy battlefields.

The Supreme Court’s action “sends different signals,” said Joseph P. Viteritti, a professor of public policy at New York University who is writing a book about the school choice movement.

The legal signal is that the constitutionality of religious school vouchers remains an unsettled question, he said. As for the political signal, the denial of review does not give a green light for other states to adopt such programs, he argued.

“But there is an amber light out there,” he said. In other words, states should proceed with caution.

Voucher opponents said they feared that the Supreme Court’s denial of review would be misinterpreted as an affirmation of the Wisconsin program.

“It is, unfortunately, a quite typical tactic to suggest that the denial of [Supreme Court review] means more than it does,” said Elliot M. Mincberg, the legal director 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?’ ”

States Weigh Action

Legal uncertainty has been one roadblock for lawmakers seeking to adopt Milwaukee-style programs aimed at poor children. While the high court’s refusal to take the Wisconsin case hasn’t erased those legal questions, it may shift momentum just enough to boost voucher plans.

That theory is already being put to the test in Pennsylvania, where voucher supporters expressed hope last week that a voucher bill might advance as soon as this month’s lame-duck session of the legislature.

The Supreme Court’s denial of review was a “positive note” for vouchers, Pennsylvania Secretary of Education Eugene W. Hickok said.

Gov. Tom Ridge, a Republican who was re-elected this month, and other voucher proponents were counting heads in the legislature to see whether they had enough support for a pilot voucher program. They have yet to release any details of a proposed bill.

Anti-voucher forces held a rally in the Capitol in Harrisburg last week. That rally had been scheduled before the Supreme Court turned down the Wisconsin case.

Two other states where voucher plans are likely to be debated early next year will have governors named Bush.

In Texas, Republican Gov. George W. Bush won overwhelming re-election 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 of passing next year.

In Florida, meanwhile, the voucher issue got a lot of attention in the race between Republican Jeb Bush and Democrat Buddy MacKay.

Mr. Bush, the 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.

Under the proposal, children in public schools rated as failing for two consecutive years could transfer to another public school or get a voucher worth about $3,500 to attend private schools. It is not clear whether religious schools would be included in the plan.

Brewser Brown, a spokesman for Florida Commissioner of Education Frank T. Brogan, who won election as Mr. Bush’s lieutenant governor, said the voucher plan was only a small part of the GOP ticket’s education program. But given the attention it received, the election of Mr. Bush could fairly be viewed as an endorsement of his proposal, Mr. Brown added.

“You would have to be living under a rock to not be aware Mr. Bush was proposing a voucher plan,” he said. “So people were well aware of this when they cast their votes.”

Ballot Rejection

Voucher proponents have another reason for focusing their energies on legislative proposals. Direct ballot initiatives for private school choice have compiled a losing record.

Colorado voters this month overwhelmingly rejected a tax credit for private school tuition. Six years ago, they rejected a voucher referendum. Voters in California, Oregon, and Washington state have also rejected voucher ballot measures in the 1990s.

Chester E. Finn Jr., the president of the Thomas B. Fordham Foundation in Washington and a leading school choice advocate, said ballot measures are probably not the best route for voucher proponents.

“We know now from four experiences that the people who think they stand to lose from a [school choice] reform work a lot harder to defeat it than the people who might gain will work to pass it,” said Mr. Finn, who was an assistant U.S. secretary of education during the Reagan administration.

The Supreme Court’s refusal to review the Milwaukee case was a mixed blessing to voucher proponents, he said.

“On the one hand, it plainly leaves the Wisconsin decision as the closest thing to the law of the land,” he said. “On the other hand, it is just the law of Wisconsin.”

Even though many voucher advocates had hoped the high court would take up the case, there was never a guarantee the justices would have ruled religious school vouchers permissible under the U.S. Constitution, Mr. Finn pointed out.

“So, as with any gambling situation, you can take your modest winnings and leave the casino,” he said.

A version of this article appeared in the November 18, 1998 edition of Education Week as ‘Green Light’ For School Vouchers?

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