School Choice & Charters

Vouchers Face Key Legal Test in Wisconsin

By Mark Walsh — March 11, 1998 5 min read

The national debate over private school vouchers entered a crucial phase last week as the Wisconsin Supreme Court, in oral arguments here, weighed the constitutionality of the 1995 expansion of Milwaukee’s pioneering parental-choice program to include religious schools.

Besides Wisconsin, where the supreme court is examining the Milwaukee program for the second time in two years, the highest courts of two other states are considering the legality of religious school vouchers.

The Vermont Supreme Court was scheduled to hear arguments this week on a proposal by the Chittenden district to allow its high school students to attend a Roman Catholic school at government expense.

And sometime this spring, the Ohio Supreme Court will consider the constitutionality of the state-financed voucher program for nearly 3,000 poor children in Cleveland. The Cleveland program is the only one that has been allowed to operate with the inclusion of religious schools while its legality is debated in the courts.

“The fate of school choice hangs in the balance in these cases,” said Clint Bolick, the legal director of the pro-voucher Institute for Justice in Washington, who argued in support of the Milwaukee plan before the Wisconsin high court last week.

A New Justice

The 8-year-old Milwaukee Parental Choice Program provides vouchers worth about $4,400 each to some 1,500 low-income children who attend secular private schools in the city.

In 1995, the legislature approved a budget proposal by Republican Gov. Tommy G. Thompson that called for expanding the choice program to as many as 15,000 Milwaukee children and opening up their choices to include religious schools. The Milwaukee Teachers’ Education Association, an affiliate of the National Education Association, and the American Civil Liberties Union quickly organized lawsuits that challenged the expansion.

The following year, the state supreme court deadlocked 3-3 on the constitutionality of the expansion and sent the case back to the lower courts. The seventh member of the high court, Justice Ann Walsh Bradley, abstained from the case in 1996 and last week, both times without explanation.

No religious schools have been allowed to participate during the three years of the legal battle.

Legal observers here have speculated intensely about the potential impact of the retirement of then-Chief Justice Roland B. Day, who was one of the three members of the court who announced they would have struck down the expanded choice program.

He has been replaced on the court by N. Patrick Crooks, who is viewed by analysts here as a conservative jurist who may lean toward upholding the expanded voucher program. If the other justices hold to their previous positions, Justice Crooks would cast the deciding vote.

In the meantime, two lower Wisconsin courts struck down the expanded choice program on state constitutional grounds. A trial judge in Dane County court here held that expanding the program to religious schools would direct state funds into their coffers in violation of strong language in the state constitution against aiding “religious societies.” (“Judge Overturns Expanded Wis. Voucher Plan,” Jan. 22, 1997.)

A state appeals court affirmed the trial judge last August by a 2-1 vote, also on state constitutional grounds. The practical effect of the lower-court rulings is that if the state supreme court deadlocks again, the lower courts’ rejection of the program would stand.

And since those rulings were based on the Wisconsin Constitution, voucher proponents would have no grounds for an appeal to the U.S. Supreme Court. Many voucher advocates hope that any one of the major cases reaches the U.S. high court, where vouchers would get a positive reception, they speculate.

Deja Vu

The oral arguments in Madison on March 4 had a familiar feel to those who participated two years ago. Once again, busloads of children from Milwaukee rallied on the steps of the state Capitol in favor of vouchers.

Chief Justice Shirley S. Abrahamson welcomed some of the lawyers who argued the case the last time. They include Mr. Bolick of the Institute for Justice, who is representing Milwaukee parents and children who favor vouchers, and Robert H. Chanin, the general counsel of the National Education Association, who argued against vouchers on behalf of the Milwaukee teachers’ union.

Whitewater independent counsel Kenneth W. Starr, who represented the state in 1996 as a private lawyer for the Washington law firm of Kirkland and Ellis, did not participate here last week, although his name still appears on the state’s legal briefs. Mr. Starr has come under criticism for his involvement in the politically charged case at the same time he is heading an investigation of President Clinton, an opponent of private school vouchers.

Jay P. Lefkowitz, a partner at Kirkland and Ellis, argued for the state that the voucher expansion met two key principles: It was religiously neutral and provided no direct benefits to religious schools.

Mr. Bolick defended the program in the face of several other state constitutional grounds on which it has been challenged. He said the program could still be considered experimental, even though it would be greatly expanded. Such a distinction was critical to the state high court’s decision in 1992 to uphold the original school choice program.

“This program is one part of a very large and aggressive effort to rescue children in the Milwaukee public schools,” he argued.

Voucher opponents urged the high court to strike down the program based on the state constitution’s prohibition on government aid to religion--language that they view as more restrictive than that in the federal constitution.

“This court has consistently ruled that the Wisconsin Constitution provides a more complete separation [of church and state] than the U.S. Constitution,” said Jeffrey Kassel, a lawyer representing the ACLU.

Mr. Chanin of the NEA argued that religious school vouchers would still violate the federal constitution.

The problems of urban schools “cannot be solved by schemes that skim off 5,000 or 15,000 students but leave behind 85,000 or 95,000,” he said. “Our challenge is to solve the problems of urban education within the constraints of constitutional principles.”

Justice Crooks, the court’s newest member, was watched closely for clues to his thinking, but no comment or question he offered clearly tipped his hand.

However, he said he was particularly interested in what the drafters of the state constitution had in mind when they barred state aid to religious societies and seminaries.

The case is expected to be decided by June.

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