On Wisconsin!

In a sweeping victory for church-state separation, a Wisconsin state court has struck down a voucher program that would have forced taxpayers to support private religious education.

Dane County Circuit Judge Paul Higginbotham ruled Jan. 15 that the Milwaukee Parental Choice Program (MPCP) may not pay for tuition at denominational schools.

Citing provisions of the Wisconsin state constitution, Higginbotham held that such assistance to religion violates the separation of church and state. The judge said voucher aid for religious 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."

The Wisconsin dispute began in 1990 when the state legislature approved an "experimental" voucher program for Milwaukee limited to nonsectarian private schools. Up to 1 percent of the city's students could transfer to private schools, with the state picking up tuition charges of up to the state per-pupil student aid cost.

After the state Supreme Court upheld the plan, Gov. Tommy Thompson and his pro-voucher allies lobbied for an expansion. In 1995 the legislature broadened the scheme to allow tuition subsidies for religious schools. The bill also raised the number of participants to 7 percent of the city's enrollment in 1995 and 15 percent in 1996 -- an estimated 15,000 students. (Each student would he eligible for approximately $4,400 in tuition subsidies.)

The MPCP expansion quickly sparked legal action and developed into a showdown over the issue of tax support for religious instruction. The conflict has drawn the involvement of a wide range of advocacy organizations, and the outcome is being closely watched nationwide.

Americans United for Separation of Church and State and the state affiliate of the American Civil Liberties Union filed suit on behalf of a group of Milwaukee parents, taxpayers and clergy. A second challenge was launched by the Milwaukee Teachers' Education Association and other education groups. The National Association for the Advancement of Colored People (NAACP) also filed suit against the program. (The three cases were later consolidated into a single action.)

The voucher plan is being defended in court by Kenneth Starr, former U.S. solicitor general and now independent counsel in the Whitewater investigation. Starr, who is being paid with money from the right-wing Bradley Foundation, was brought into the case by Gov. Thompson.

The pro-voucher Institute for Justice and the Landmark Legal Foundation are also helping defend the MPCP program. Briefs supporting the voucher subsidies have been filed by the U.S. Catholic Conference, Pat Robertson's American Center for Law and Justice, the Christian Legal Society and others.

In his 51-page Warner Jackson v. Benson ruling, Higginbotham cited provisions of the state constitution that bar forced taxpayer support for religious instruction. Article 1, Section 18, for example, guarantees that no person may "be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent." It also forbids that "any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries."

The judge cited a wealth of uncontested data to demonstrate that the participating religious schools would be the primary beneficiaries of the expanded MPCP program and that they would be free to use the public funds to advance their religious agenda in violation of the constitutional bar.

The judge noted that 89 of the 122 eligible private schools in Milwaukee are sectarian. The schools vary in denominational affiliation from Catholic and Protestant to Jewish and Muslim, but the judge found their religious character and practices consistent. Information from the schools themselves prove that religious and academic concepts are intertwined in order to advance sectarian evangelistic goals.

A few of the many examples Higginbotham cited were:

* St. Matthew Evangelical Lutheran School said its purpose is "to go and tell the pure Gospel of Jesus Christ for the conversion of unbelievers and the strengthening of believers."

* The mission of St. Leo and St. Rose Catholic schools is "to share in the parish evangelization effort through providing quality Catholic education."

* Divine Savior Holy Angels High School said it "is dedicated to promoting the beliefs and traditions of the Catholic Church."

* Yeshiva Elementary School said its objective is "to teach Elementary school children Torah and Mitzvos" in order to prepare our children to attend the finest seminaries, Yeshivas and institutions of Jewish higher learning."

* Clara Muhammad School attempts to "foster within each student the principle of submission to the will of Allah (God) as the essential element in achieving human excellence."

* At St. Bernadette School,"religion is taught daily as part of the curriculum" and "Catholic values are also incorporated into all other aspects of the curriculum."

Concluded Higginbotham, "[W]hen we review the stated missions of these schools as provided by the stipulated facts, their intent to inculcate their students with their religious doctrine is manifest. It is equally clear that it is impossible, under any scenario, for these schools to separate the secular function of education from their religious mission. Their very existence is to convert students to their religion and to proselytize their doctrine. We can easily conclude that the amended MPCP would provide aid to institutions in which religion is so pervasive that a substantial portion of their functions are subsumed in their religious mission."

To try to get around this seemingly insurmountable constitutional barrier, voucher supporters claimed that the Milwaukee program would ultimately aid parents, not the religious schools themselves. They cited four U.S. Supreme Court cases since 1983 that have allowed "indirect" tax support for religious education.

Higginbotham, however, handily dismissed the claim, identifying the schools as "the primary beneficiaries of the government aid." He noted that the MPCP tuition checks would be sent directly to the participating religious schools. Parents would have to come to the schools to sign the check, leaving them in the hands of school authorities. The public funds could then be used for any purpose, including religious school operating expenses and purchase of religious materials.

"It can hardly be said that this does not constitute direct aid to the sectarian schools," he ruled. "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. Millions of dollars would be directed to religious institutions that are pervasively sectarian with a clear mission to indoctrinate Wisconsin students with the irreligious beliefs. Whether sent directly to the schools or sent directly to the schools with a mandate of restrictive endorsement by the parents, is irrelevant .... As stated earlier in this case, the state cannot do indirectly what it cannot do directly. And that is provide money from the state treasury to pervasively sectarian religious schools for the purpose of educating Wisconsin students."

Higginbotham directed his strongest fire at the religious coercion of taxpayers inherent in the MPCP program.

"Perhaps the most offensive part of the amended MPCP," the judge ruled, "is it compels Wisconsin citizens of varying faiths to support schools with their tax dollars that proselytize students and attempt to inculcate them with beliefs contrary to their own. We do not object to the existence of parochial schools or that they attempt to spread their beliefs through their schools. They just cannot do it with state tax dollars."

In addition to the state constitution's church-state provisions, the judge also found that voucher subsidies for religious schools lacked a "public purpose," a basic requirement for all governmental programs in the state.

"The legislature has wide discretion to determine what constitutes a public purpose," Higginbotham observed, "but the constitution clearly calls for separation of church and state .... The mission statements of the religious schools clearly indicate that their function is to promote religion. Secular instruction in these schools intertwines worship and religious indoctrination designed to advance their sectarian goals. Furthermore, most schools receive more money than they charge for tuition, and there are no restrictions on how the schools spend this money. Thus, public money inevitably goes to fund religious education and activities."

"[T]here are no cases," he said, "upholding government funding of religious activities as a valid public purpose."

In conclusion, Higginbotham ordered that the expanded MPCP program be terminated.

Voucher enthusiasts were dismayed by the Warner Jackson ruling and tried to downplay its significance.

Clint Bolick of the libertarian-oriented Institute for Justice, told The Washington Post, "We expected this and we're ready to get on to the appeals process." Jeanne Allen of the Center for Education Reform agreed, telling The Washington Times the ruling is a "temporary setback."

Rep. Annette "Polly" Williams, a Democratic legislator who teamed with Republican Governor Thompson to steer the voucher plan through the legislature, was livid. Williams, an African-American, told the Times, "On Martin Luther King's birthday we have a ruling that's a complete contradiction to all the struggles and what King died for." She particularly blasted the NAACP for staunchly opposing in court a program that she claimed would help black children.

Observers note, however, that Williams' argument is undercut by history. Private school vouchers were first tried in the United States in the 1960s by Southern states attempting to fight racial integration and fund private segregationist academies. The voucher schemes were struck down by the federal courts.

Advocates of church-state separation and strong public schools were delighted by the Wisconsin decision.

Americans United Legal Director Steven K. Green said the Higginbotham ruling was everything separationists could have hoped for.

"The judge readily saw through the fiction that vouchers aid parents, not religious schools themselves," said Green, who has played a key role in the development of the Warner Jackson lawsuit. "His careful outlining of the facts and solid constitutional analysis will give us an excellent platform to stand on as the case goes up on appeal."

Americans United Executive Director Barry W. Lynn said people should celebrate the decision as a significant step forward in the battle for religious liberty. "This is a tremendous victory for individual freedom," Lynn said. "Americans should never be taxed to support churches or church schools."

Lynn also noted-that the Warner Jackson decision will be useful when other states takes up the religious school aid issue in their legislatures. Although the Wisconsin ruling was based on state constitutional grounds, the religious liberty principles undergirding it have broad application. In addition, about half the state constitutions have language similar to Wisconsin's.

Said Lynn, "This decision sends a strong message to legislators everywhere: voucher programs are legally perilous and undercut the religious freedom rights of citizens and taxpayers."

Voucher opponents will need all the ammunition they can get in the upcoming year. Voucher subsidies for religious and other private schools are expected to be a major issue in state legislatures and the U.S. Congress.

Reese Aaron Isbell, Americans United's states legislative coordinator, completed a national survey in early January and found at least a dozen states where voucher battles are likely to take place in 1997.

Sources told Isbell that the biggest battlegrounds probably will be Florida, Texas, Washington, Arizona and Pennsylvania. Other possibilities include Iowa, New Jersey, New York, Utah, Vermont, Maryland and Colorado.

Separationists are particularly concerned about Florida, where pro-voucher forces control both houses of the legislature.

House Speaker Daniel Webster, a Christian Coalition ally and member of the legislature's Religious Right-oriented "God Squad," has appointed a pro-voucher legislator, Rep. Stephen Wise (R-Jacksonville), to chair the chamber's Academic Education Council. The Council serves as a coordinating body overseeing the four House education committees.

According to the St. Petersburg Times, Wise is preparing legislation for a "pilot" voucher program in several counties. The measure would give students half the state's per-pupil spending allocation to attend religious and other private schools.

"It will be on the agenda," Wise told a conservative conference Jan. 7, "so just get a grip."

Wise may get assistance from GOP leaders in the Senate. Senate President Toni Jennings is also proposing a voucher scheme. According to the Times, Jennings doesn't like the word voucher, so she calls her private school subsidies "scholarships."

Voucher foes are unimpressed with the slippery wording. Cathy Kelly, legislative director of the state teachers' association, said people should not be fooled by the linguistic maneuver. "I think the strategy of calling it scholarships is a way of trying to make it more palatable and softer. It's almost a disguise."

Gov. Lawton Chiles, a Democrat, has firmly opposed diverting tax funds to religious and other private schools in the past, but some observers think he may be wavering. Chiles spokeswoman April Herrle told the Times, "We need to focus on improving public schools before we siphon off money for private schools, but that doesn't mean the door is closed completely."

Vouchers are also an issue in Congress. TV preacher Pat Robertson's Christian Coalition is preparing to throw its lobbying weight behind a voucher campaign.

According to CQ Monitor, Coalition Executive Director Ralph Reed says a voucher proposal is one component of a four-part "conservative, Christian compassion-based agenda for the poor." (Other segments include a $500 tax credit for charitable contributions, church-run social services for the disadvantaged and an effort to "plant 1,000 African-American churches in the inner-cities.")

The Coalition's voucher scheme would be called "Hope and Opportunities Scholarships." The plan is likely to win favor with House Speaker Newt Gingrich and other Republican congressional leaders. Turning public services over to churches has been a continuing theme of the GOP legislative agenda.