School Choice & Charters

Judge Overturns Expanded Wis. Voucher Plan

By Mark Walsh — January 22, 1997 5 min read

A Wisconsin state judge last week struck down the 1995 expansion of the Milwaukee voucher program and ruled against including religious schools in the 7-year-old school choice experiment.

Judge Paul B. Higginbotham of Dane County Circuit Court in Madison ruled that the inclusion of religious schools violated the state constitution’s provisions against taxpayer support of sectarian institutions.

“Millions of dollars would be directed to religious institutions that are pervasively sectarian with a clear mission to indoctrinate Wisconsin students with their religious beliefs,” Judge Higginbotham said in his Jan. 15 opinion.

The state legislature and Republican Gov. Tommy G. Thompson approved a budget measure in 1995 that expanded the Milwaukee Parental Choice Program to include religious schools. The measure also expanded the number of low-income students who could use the state vouchers to attend nonreligious private schools from roughly 1,500 to as many as 15,000. (“Wisconsin, Ohio Back Vouchers for Religious Schools,” July 12, 1995.)

The judge also struck down the expansion of the program as it applied to nonsectarian schools. He said the legislature violated a provision of the state constitution when it included the expansion as part of a budget bill. And he questioned whether the expanded program could still be considered a small educational experiment, which is one basis upon which the state supreme court had upheld the original 1990 voucher law.

The original program was limited to 1 percent of the enrollment of the Milwaukee district, whose current enrollment is about 98,000, and allowed only nonsectarian private schools to participate.

The only other program that allows children to attend religious schools at taxpayer expense is in Cleveland, where 1,800 children are participating in the program’s first year. An Ohio state judge ruled last year that the Cleveland voucher program, which was enacted by the state legislature, did not violate federal or state constitutional prohibitions against government establishment of religion. (“Ohio Court Clears Cleveland’s Voucher Pilot,” Aug. 7, 1996.)

An Ohio appeals court is scheduled to hear an appeal by state teachers’ unions and other opponents next month.

Major Expansion

In Wisconsin, court injunctions have kept eligible Milwaukee students from using vouchers to enroll in religious schools.

About 1,650 students are using vouchers worth roughly $4,400 each this year to attend participating nonsectarian schools. That number is more than was allowed under the 1990 law but far fewer than the 15,000 authorized for the current school year. However, program supporters say many eligible parents would eagerly send their children to religious schools if the legal obstacles are cleared.

Judge Higginbotham delayed the effect of his decision until the end of the school year, which effectively means no current voucher recipients will have to leave the participating nonsectarian schools.

The judge ruled on the case after the state supreme court deadlocked on the constitutionality of the religious-school expansion. The state high court agreed to review the issue on an expedited basis last year, and the program was defended before that court by former U.S. Solicitor General Kenneth W. Starr, who is also the special counsel in the Whitewater investigation into President Clinton’s Arkansas business dealings. (“Religious School Vouchers Get Day in Court,” March 6, 1996, and “Court Deadlocks on Religious School Vouchers,” April 10, 1996.)

The state high court split 3-3 in the case, with one justice not participating, and sent the case back to Judge Higginbotham.

Edward S. Marion, a Madison lawyer defending the program on behalf of Gov. Thompson, said the judge’s ruling on the religious schools was not a surprise. The state will ask an appeals court to overturn the ruling, he said.

Christopher Ahmuty, the executive director of the American Civil Liberties Union of Wisconsin, called the ruling “a very sound decision that will be very difficult to reverse at the appeals court level.”

The ACLU joined with teachers’ unions in the state in challenging the expanded program.

Indirect-Aid ‘Myth’

Judge Higginbotham said the inclusion of religious schools in the voucher program violates two provisions of the state constitution: one that bars “compelled support” of religion and another that states that no money “be drawn from the treasury for the benefit of religious societies or religious or theological seminaries.”

The judge said the state constitution provides for stronger limitations on government aid to religion than the U.S. Constitution’s First Amendment prohibition on government establishment of religion.

He rejected the argument that state vouchers provided to low-income parents, which would have to be signed over to the religious schools, would represent aid to the parents and not the religious institutions.

He referred to a series of U.S. Supreme Court rulings since the early 1980s that have provided hope to voucher supporters that an indirect-aid program might pass U.S. constitutional muster. These cases include Mueller v. Allen, a 1983 ruling that upheld a Minnesota tax deduction for private school tuition, and Zobrest v. Catalina Foothills School District, a 1993 decision that allowed a school district to provide a sign-language interpreter for a deaf student attending a Roman Catholic high school.

“Although the U.S. Supreme Court has chosen to turn its head and ignore the real impact of such aid, this court refuses to accept that myth,” Judge Higginbotham said.

A ‘Local Bill’

In addition, the judge said the expansion of the voucher program as part of a huge budget bill violated a provision of the state constitution that requires “local bills” to embrace only one subject.

Because the program applies only to Milwaukee, the judge said it must pass a legal test to determine whether the special classification was “germane to the purpose of the law.” The state supreme court said the original 1990 law passed this test because the choice program was experimental.

But Judge Higginbotham said the expanded program, because of its growth in size and the elimination of some evaluation measures, could no longer be considered experimental. Therefore, the expansion violated the state constitutional provision limiting “local or private bills.”

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