`CHOICE' CHALLENGE.

Wisconsin Supreme Court Decision Upholding Religious School Vouchers Will Be Appealed, Says Americans United

In a controversial decision that threatens church-state separation, the Wisconsin Supreme Court has upheld the constitutionality of a school voucher program that forces taxpayers to support private religious education.

Ruling 4-2 June 10, the Wisconsin court decided that the Milwaukee Parental Choice Program (MPCP) does not violate either the First Amendment or the Wisconsin Constitution's provisions forbidding public benefits for religious schools. After a long string of legal defeats for vouchers in Maine, Ohio, Puerto Rico and Vermont, the Jackson v. Benson decision is the first in favor of vouchers by a state high court.

The Wisconsin majority justices conceded that the MPCP allowed public funds to flow into the bank accounts of religious schools, but they nevertheless ruled that the program passed constitutional muster.

"Upon review, we conclude that the amended MPCP does not violate the Establishment Clause because it has a secular purpose, it will not have the primary effect of advancing religion and it will not lead to excessive entanglement between the state and participating sectarian schools," Justice Donald Steinmetz wrote for the court majority.

Currently, about 1,500 Milwaukee students are attending 23 private schools using publicly funded vouchers, but they have been limited to secular institutions. The Jackson ruling would allow up to 15,000 students to leave the public schools for taxpayer-financed private education including both religious and secular schools.

In anticipation of this decision, 81 religious schools in the Milwaukee area have already registered to participate in the expanded MPCP. The program gives vouchers of about $5,000 per student to private schools, and as each child leaves a Milwaukee public school, the state cuts the school system's budget by about $5,000.

The Wisconsin decision rested on a series of hotly debated legal points. For example, the court bought the notion that public funds would transfer to religious institutions through parents. "[N]ot one cent flows from the state to a sectarian school ... except as a result of the necessary and intervening choices of individual parents," contended Steinmetz.

Voucher opponents took issue with the logic behind this part of the court's ruling.

Steven Green, legal director for Americans United for Separation of Church and State, noted that the MPCP has little to do with the choices of parents. In a legal analysis of the Jackson ruling, Green explained, "In practice, parents do not retain control or authority over the voucher monies because the checks are sent directly to the private schools where they must be endorsed over to the schools. Because the voucher monies can be used only for private school tuition, and not for other educational expenses that all parents incur, there is no `genuine independent choice.'"

The court majority shoved aside specific church-state language from the Wisconsin state constitution. Article 1, Sec. 18 requires that no "money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries."

Opponents of the voucher plan argued that this provision clearly prohibited public funds from going to religious schools. The Wisconsin court disagreed.

Justice Steinmetz insisted that vouchers simply paid the tuition of students who were previously enrolled at public schools. As such, the state money would pay only for the services of instructing those students and it therefore should not be considered a benefit.

"Only actual increased cost to such schools occasioned by the attendance of beneficiaries is to be reimbursed," Steinmetz wrote for the majority. "They are not enriched by the service they render. Mere reimbursement is not aid."

Critics disagreed. "The state is giving millions of dollars to private religious schools," said Americans United Executive Director Barry W. Lynn said. "Even worse, in a large number of the schools, the $5,000 in voucher aid more than covers tuition, so additional hundreds or even thousands of public dollars can go to purchase Bibles, erect crucifixes and pay teacher salaries. Contrary to the Wisconsin court's interpretation, this is certainly a benefit to the religious schools."

While Chief Justice Shirley Abrahamson and Justice William Bablitch dissented from the Jackson ruling, they were surprisingly brief in their explanation. The entire dissent ran a total of two paragraphs. Bablitch simply stated that he agreed with the ruling against vouchers from the appeals court below, and that the Milwaukee program violated the Wisconsin Constitution.

"We were hoping for a dissent that would explain the importance of the principles at stake here," said Jeffrey Kassel, a lawyer with the American Civil Liberties Union of Wisconsin, in an interview with the Milwaukee Journal Sentinel. "Clearly, the dissent relies on the Court of Appeals opinion that we think was squarely right, but I thought there would be something more lengthy."

The Wisconsin voucher controversy began in 1989 when the state legislature enacted an "experimental" voucher program that allowed a limited number of low-income students to use publicly funded vouchers to attend nonsectarian private schools in Milwaukee.

According to the Milwaukee Journal Sentinel, in the MPCP's first year of operation, 341 students used vouchers to attend seven private schools at a cost to the state of $733,800. By the 1993-94 school year, enrollment had more than doubled to 733 students in 12 participating schools, and the total cost of the voucher program had almost tripled to $2.1 million.

In 1994, Wisconsin Gov. Tommy Thompson (R) proposed removing the restrictions against public funding of religious schools. Democratic leadership in the state legislature, then in the majority, rejected Thompson's plans.

In 1995, however, Republicans gained control of the legislature and acted to include religious schools in the MPCP and increase the number of participating students from 1,500 to 7,000 in 1996 and up to 15,000 for 1997.

In August 1995, Thompson signed into law the state budget with the expanded voucher plan. Immediately thereafter, Americans United and the ACLU of Wisconsin filed its Jackson v. Benson lawsuit on behalf of a group of local parents, clergy and taxpayers. The state Supreme Court temporarily blocked expansion of the voucher program, but later deadlocked 3-3 on its constitutionality, sending the Jackson case back to the lower court.

In a sweeping ruling there, Circuit Court Judge Paul Higginbotham struck down MPCP aid to religious schools. Citing provisions of the Wisconsin Constitution, Higginbotham held that public assistance to religion violates church-state separation. He explained that voucher aid to church-affiliated schools "compels Wisconsin taxpayers to support places of worship without their consent" and has the "primary effect" of using public funds "to benefit the religious missions of the elementary and secondary religious schools."

A Wisconsin State Court of Appeals upheld Higginbotham's ruling in August 1997. Voucher advocates then appealed to the state's Supreme Court.

The Jackson case quickly became a constitutional showdown between forces that support public schools and church-state separation and those that don't.

Opponents of the voucher program included not only Americans United and the ACLU, but also the National Education Association, the NAACP and an array of civil liberties, educational and religious groups.

Organizations that weighed in on the other side included the Institute for Justice, the Landmark Legal Foundation, CEO America, the Center for Education Reform and other right-wing legal and public policy outfits.

They were backed by James Dobson's Focus on the Family, the Family Research Council, the Southern Baptist Convention, the Christian Legal Society, the National Association of Evangelicals, the Missouri-Synod Lutheran Church, the Center for Public Justice and the Christian Defense Fund.

The voucher cause was also supported by Kenneth W. Starr. Starr, former U.S. solicitor general and current independent counsel in the Whitewater investigation, has been a long time supporter of "school choice." Receiving compensation from the right-wing Bradley Foundation, Starr was brought into the Wisconsin voucher case by Gov. Thompson. (Starr has declined to stop his outside legal activities while working as independent counsel.)

In their bid to win judicial support for tax aid to sectarian education, Starr and these allied groups put aside some religious leaders' worries about state regulation of church-affiliated schools. The expanded MPCP requires participating private schools to obey nondiscrimination laws in admissions, to accept students on a random basis and to exempt students from "any religious activity" at their parents request.

In its Jackson decision, the Wisconsin justices dismissed such government scrutiny, holding that "routine regulatory interaction" would not create excessive entanglement between state officials and church schools.

The pro-voucher groups also ignored practical concerns about the MPCP. Regardless of the ongoing debate over constitutionality, the voucher program has been plagued with allegations of fraud and abuse.

For example, in January 1996 Exito Education Center, a voucher school, closed in mid-school year after its director was charged with issuing $47,000 in bad checks and misdemeanor counts of possession of marijuana and drug paraphernalia.

A few weeks later, Milwaukee Preparatory also shut down. The founder of Milwaukee Prep was later charged with defrauding the state of more than $9,000 by lying about the age of 10 students so they would be eligible for reimbursement.

Exito's executive director was found guilty in 1997 of falsifying attendance records to receive a $42,000 overpayment under the MPCP. An investigation determined that 90 students supposedly enrolled at the school did not exist.

Why did the Wisconsin Supreme Court find the controversial program constitutional?

The important difference between the Jackson ruling this year and the first time the Wisconsin court heard the case is court composition. Between considerations, voters replaced a voucher opponent on the elected bench with a voucher advocate. With the retirement of Justice Roland Day, who had ruled against religious schools aid, Justice N. Patrick Crooks was elected to the state Supreme Court to fill Day's seat. Crooks cast the deciding vote in the 4-2 ruling. (Both times the Wisconsin court heard Jackson, Justice Ann Walsh Bradley abstained from participating in the case.)

Reverberations of the Wisconsin court's decision were felt nationwide. Because vouchers had never met with success at this level before, proponents trumpeted the Jackson ruling as a sign that public funding of religious schools is legal.

House Speaker Newt Gingrich (R-Ga.), an avid voucher supporter and key proponent of "school choice" legislation, praised the decision. "The court," he said, "has unleashed one of the most powerful forces in the universe -- competition -- to strengthen the learning experience for every child, in every school."

In an interview with the conservative Washington Times, Gingrich added, "The court made clear that our children's future is more important than the selfish interests of the big labor unions and education bureaucrats."

To no one's surprise, Gov. Thompson was also pleased with the ruling.

"Religious values aren't our problem," he said, in an Associated Press account. "Dropout rates and low test scores are." Thompson added, "This is not only going to allow for choice, but for competition among schools, public and private."

Reaction from the rest of Wisconsin, however, was sharply different. On the press front, The Capital Times, Madison's daily, described the Jackson ruling as "tragic."

"Wisconsin lost a distinctive part of its heritage this week and put at risk the quality of its public education system for the future," the Times editorial said. "A 4-2 majority on the state Supreme Court decided to celebrate the 150th year of the state's constitution by trampling on the section that protects the separation of church and state." The newspaper said the best way to prevent further abuses is to "elect a new governor and a new legislature -- and a new state Supreme Court."

Wisconsin School Superintendent John Benson told The Washington Post that the decision will mean increased burdens for taxpayers. "I am warning state taxpayers now," he said. "They better hang on to their wallets."

The Milwaukee Journal Sentinel was equally critical. "In blessing the use of public funds for religious schools, the Wisconsin Supreme Court smashed a gaping hole in the fire wall that's supposed to separate church and state in America," the newspaper said. "This horrible ruling must be appealed to the federal judiciary.

"The court's novel interpretation of the U.S. and Wisconsin constitutions takes the nation and the state into uncharted terrain, where danger lurks," the Journal Sentinel editorial continued. "The ruling discards the important principle that taxpayers -- of any religious stripe or of none -- must not be compelled to support a religious institution. This tenet has served the state and the nation well, enabling the United States to avoid the sort of sectarian strife that has divided many other countries.... Lower courts had recognized this scheme for what it was: a ruse. But the high court bought into it."

National newspapers echoed similar sentiments. "The Wisconsin decision, if upheld by the United States Supreme Court, would have a devastating impact on public education nationwide," The New York Times editorialized. "As more families opt out of the public schools, those schools will starve. The downward spiral is easy to map. The question now is whether the United States Supreme Court will have the wisdom to see that vouchers attack not only constitutional principles but the common schools that are essential institutions for a democratic society."

The Christian Science Monitor took a similar stance on the Jackson ruling. "Any public policy that channels tax dollars ... to institutions devoted to teaching not only the ABCs but religious tenets, violates the constitutional separation of church and state," the newspaper observed. "[B]eware tendencies to disinvest in public education and ignore church-state concerns. History shows that road isn't nearly so bright as advocates proclaim."

Clint Bolick, litigation director for the Institute for Justice, took the lead in the legal defense of the Wisconsin voucher plan, as he has in many other voucher case in recent years. As expected, Bolick announced his intention to use this ruling to help the voucher cause nationwide.

"This is the biggest decision yet for school choice, and it was a slam-dunk," Bolick told The Washington Times. He added that an appeal to the U.S. Supreme Court meant that voucher opponents "risk an even bigger precedent."

Despite warnings from Bolick, Americans United's Green and other attorneys guiding the Jackson case have already decided that the Wisconsin decision will be appealed to the U.S. Supreme Court.

Describing the ruling as resting on "faulty analysis" and a "misconstruction of existing case law," Green is hopeful the Supreme Court will overturn the decision and protect taxpayers from having to finance religious education.

"If the Supreme Court decides to consider the appeal of this case, it will be among the most important church-state cases ever," Green said.

Americans United Executive Director Lynn says critically important principles are at stake.

"Anyone concerned with church-state separation should be shocked and disappointed by the decision from the Wisconsin Supreme Court," observed Lynn. "Giving public funds to sectarian schools is the same thing as forcing taxpayers to place their money in the collection plate.

"Voucher supporters like to talk about `choice,'" Lynn added. "America does have a choice. We can pass risky voucher schemes that violate time-tested constitutional principles, that have no proven successes and that threaten the existence of public schools. Or, we can work to fix the public schools that are failing and help guarantee educational opportunities to all of our children. The choice is easy. I only hope the Supreme Court agrees."