Law & Courts

Religious School Vouchers Get Day in Court

By Mark Walsh — March 06, 1996 7 min read

Madison, Wis.

Vouchers for religious-school students faced their most important legal test in more than two decades here last week in the small, ornate chamber of the Wisconsin Supreme Court.

“All of us here in this room are presented with a defining moment for education reform and for constitutional law,” said Mark J. Bredemeier, one of three lawyers in court to defend the state legislature’s expansion last year of the Milwaukee school-choice program to include religious schools.

That expansion, signed into law last summer by Gov. Tommy G. Thompson, is being battled fiercely by those who say that using public money at religious schools violates both the Wisconsin and U.S. constitutions. The Milwaukee Teachers’ Education Association and the American Civil Liberties Union organized lawsuits to challenge the expansion.

The program is being defended by Gov. Thompson, as well as by groups of low-income Milwaukee residents organized by the Washington-based Institute for Justice and the Kansas City, Mo.-based Landmark Legal Foundation.

The two-hour argument before six of the court’s seven justices (one recused herself from the case) was a spirited rhetorical clash between nationally prominent lawyers.

Kenneth W. Starr, a former U.S. solicitor general under President Bush, often captivated the courtroom with his animated gestures and forceful discussion of federal constitutional law.

“This is a neutral program that now treats all [private] schools in Milwaukee alike,” Mr. Starr said.

Gov. Thompson, a Republican, hired the high-profile Mr. Starr, saying he did not believe that the state’s Democratic attorney general, James Doyle, would defend the law vigorously enough before the state high court.

Mr. Starr is best known as the independent counsel in the Whitewater investigation into President and Mrs. Clinton’s past business dealings in Arkansas. His participation in the Wisconsin case comes under his job as a partner at a Washington law firm, Kirkland and Ellis.

Mr. Starr’s commanding presence was nearly matched on the opponents’ side by Robert H. Chanin, the general counsel of the National Education Association, who argued against the choice program on behalf of the nea’s local affiliate, the MTEA.

The expanded choice program is “a garage door” that could open up to an explosion of religious-school vouchers, Mr. Chanin said.

“When does it stop?” he said. “When you have side-by-side systems of [government-funded] public and private education?”

Change of Venue

Four years ago, the state supreme court upheld the original Milwaukee parental-choice program, which at the time was limited to vouchers for 1,000 children from low-income families to attend nonsectarian private schools in the city.

The Milwaukee program has been watched closely as the first real test of whether private school choice could improve the achievement of disadvantaged youngsters while prodding a troubled urban system to improve.

In their most recent evaluation of the program, researchers at the University of Wisconsin-Madison conclude that the academic outcomes have been mixed, with achievement by participating students no better than that of others in the 98,000-student Milwaukee district.

However, parental satisfaction with the choice program has been high.

Last year, the legislature expanded the program to 7,000 slots and opened it to religious schools.

The program eventually could expand to 15,000 slots, and the amended law removed a limitation on the number of state-funded students that a private school could accept.

After the teachers’ union and the ACLU filed their lawsuits last summer challenging the inclusion of religious schools, Gov. Thompson asked the state supreme court to take original jurisdiction of the case.

The court granted his request in August but also blocked religious schools from participating in the meantime. (See Education Week, Sept. 6, 1995.)

The Feb. 27 arguments came on what some had dubbed “Super Tuesday” for school vouchers: The U.S. Senate the same day was considering a bill to authorize a voucher program for the District of Columbia schools. But that proposal suffered a possibly fatal setback by failing to clear a procedural roadblock. Meanwhile, U.S. Secretary of Education Richard W. Riley criticized school vouchers last week in his annual speech on the state of American education. (See stories, pages 27 and 29.)

Some Justices Skeptical

The Wisconsin justices appeared well aware that a ruling upholding the expanded choice program could shake up their state’s education system, as well as provide a boost to religious-school vouchers nationwide.

“This is the case, right?” Justice William A. Bablitch said at one point. “This one opens it up. If we say this is OK, there’s nothing to stop the legislature from going all the way.”

Justice Bablitch and two other members of the court appeared skeptical of the expanded program.

“Ultimately, the quality of public education must suffer” if public and private schools must compete for limited state funds earmarked for education, said Justice Bablitch, a former state legislator.

Justice Shirley S. Abrahamson told Mr. Starr that she was troubled by a provision of the expansion that would allow choice-program participants to opt out of “religious activities” at sectarian schools.

“I don’t know how a child can opt out of religious instruction since religious values are part of every single class” in most sectarian schools, she said.

Justices Abrahamson and Bablitch were among the three members of the court to vote against the original program in the 1990 case, Davis v. Grover. (See Education Week, March 11, 1992.)

Chief Justice Roland B. Day, who voted to uphold the original program, expressed concern about the growth in the enrollment level of the program as well as the inclusion of religious schools.

“This court regarded the [original] program as an experiment to address perceived problems” in the Milwaukee district, he said. The expanded program “is just an opening up further of aid to sectarian and nonsectarian private schools.”

But Justice Donald W. Steinmetz struck one of the basic chords of voucher proponents when he asked whether poor families had an equal opportunity for a high-quality education.

“It seems to me the wealthier person is not bound” to enroll a child in Milwaukee’s troubled public schools, he said. “The poor person is bound and has no choice.”

Per-Pupil Costs

The choice program has been challenged on both federal and state constitutional grounds. Proponents of the expanded program emphasized their federal constitutional arguments, for two reasons.

First, the Wisconsin Constitution appears to have slightly stronger language barring government aid to religious entities than the First Amendment of the U.S. Constitution.

Second, voucher proponents contend that the U.S. Supreme Court has opened the door for religious school vouchers through a series of rulings since 1983 that approved of government aid that reached religious institutions through the private choices of individuals.

Mr. Starr cited, among others, the high court’s 1993 ruling in Zobrest v. Catalina Foothills School District, which upheld the provision of a public school sign-language interpreter for a deaf student attending a Roman Catholic high school.

In that 5-4 case, Chief Justice William H. Rehnquist wrote for the majority that government programs that neutrally benefit a broad class of citizens without regard to religion do not violate the First Amendment’s prohibition of a government establishment of religion.

“Once the choice is made by an individual, then the religious nature of the institution is irrelevant,” Mr. Starr said. “It’s the parents’ decision that controls.”

Voucher opponents, however, emphasized a 1973 Supreme Court decision, Committee for Public Education and Religious Liberty v. Nyquist, that struck down three New York state programs that benefited private religious schools.

“In order to prevail, the governor and his allies must show either that Nyquist is not a direct precedent or that it has been overruled,” the nea’s Mr. Chanin said. “They can do neither.”

Voucher opponents spent more time stressing state constitutional arguments. They contend that the state document’s language requiring that no “money be drawn from the treasury for the benefit of religious societies” bars government aid from going to religious schools even indirectly.

“We believe the court can and should hold this program unconstitutional on Wisconsin constitutional grounds alone,” said Jeffrey Kassel, the aclu’s lawyer.

Mr. Starr argued that the choice program could be upheld under the U.S. and Wisconsin constitutions because it did not have the primary effect of advancing religion.

The choice program’s main purpose is to improve educational opportunities of disadvantaged youngsters, and the government aid that reaches religious schools does so because of the independent choices of parents, he said.

“The government has not guided the decision” of parents to choose a religious school over a nonsectarian private school, Mr. Starr said.

He concluded by arguing that the voucher program was not an abandonment of the public school system in Milwaukee, but an effort to save it.

“There is no turning our backs on the Milwaukee public school system,” Mr. Starr said.

“The effect [of the voucher program] is to give these children an opportunity, and that dynamic of competition will occur,” he said.

A ruling in the case is expected by June.

A version of this article appeared in the March 06, 1996 edition of Education Week as Religious School Vouchers Get Day in Court

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