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The Wisconsin Supreme Court Wednesday (June 10, 1998) ruled that the expansion of the Milwaukee private school voucher program to religious schools is constitutional.
The 4-2 ruling overturns a 1997 State Appeals Court ruling. The Appeals Court had ruled that the inclusion of religious schools violated the "separation of church and state" provisions of the Wisconsin Constitution. The Appeals Court ruling had affirmed a lower court ruling by Dane County Circuit Judge Paul Higginbotham.
The expansion allows as many as 15,000 Milwaukee students from low-income families to attend private and religious schools at state expense. Previously, the Milwaukee voucher program allowed participating students to only attend non-religious private schools. The expansion to religious schools -- approved by the Legislature and governor in 1995 -- has been held up by a court injunction pending the Supreme Court decision. This decision dissolves that injunction, clearing the way for the expansion to proceed.
The expanded voucher program could funnel tens of millions of dollars in state funds to sectarian schools. That is money that otherwise would go to Milwaukee Public Schools.
Justice Donald Steinmetz, writing for the court majority, said justices concluded that the voucher program does not violate state or federal constitutions 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 private schools."
The Wisconsin Supreme Court ruling is may be appealed to the U.S. Supreme Court.
The ruling is a result of a lawsuit originally filed by the Milwaukee Teachers' Education Association and the American Civil Liberties Union against religious school vouchers. The suit challenged the expansion, which was approved in the 1995-97 state budget bill passed by the Legislature and signed by the governor.
In the spring of 1996, the Wisconsin Supreme Court took original jurisdiction in the case and split, 3-3, on the constitutionality of the expanded program. (The 3-3 split was the result of Justice Ann Bradley's decision not to participate due to a possible conflict of interest.) Because there was no lower court ruling at that time, the case was sent to Circuit Court and later worked its way back to the Supreme Court.
In the meantime, Justice Roland Day, who had opposed the expansion, retired. He was replaced by Justice Patrick Crooks, who sided with expansion. Joining Steinmetz and Crooks in supporting voucher expansion were Justices Janine Geske and Jon Wilcox.
Justices William Bablitch and Shirley Abrahamson dissented.
Posted June 10, 1998