Apppeals Court Finds Voucher Expansion Unconstitutional

The Wisconsin Court of Appeals Friday ruled that the expansion of the Milwaukee private school voucher program to religious schools violates the "separation of church and state" provisions of the Wisconsin Constitution. The court continued an injunction against expanding the program.

In a 2-1 ruling, the Appeals Court affirmed a lower court ruling by Dane County Circuit Judge Paul Higginbotham.

Noting that the expanded voucher program could funnel up to $40 million in state funds to sectarian schools, the court said; "We thus conclude that a 'primary effect' of the amended program is the drawing of money from the state treasury for the benefit of religious schools."

Specifically, the Appeals Court said, the expanded law violates Article 1, section 18 of the Wisconsin Constitution, which states in part: " ... nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries."

WEAC President Terry Craney said the ruling is a giant step toward preserving our public education system.

“This ruling protects both public schools and religious freedom,” Craney said.

“It's time for Wisconsin to put this unproven and unconstitutional experiment behind us and focus on resources and programs which will build on the best in our public schools."

The ruling is expected to be appealed to the Wisconsin Supreme Court, and ultimately to the U.S. Supreme Court. The Appeals Court ruling is particularly significant because it now will take a majority of the Wisconsin Supreme Court to uphold the expanded voucher program. If the high court were to split 3-3 on the case, that would leave the Appeals Court ruling intact, thus prohibiting religious schools from participating in the program.

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 is now working its way back to the Supreme Court.

The lawsuit was 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.

The case does not affect the original 1989 Milwaukee private school voucher program, which was limited to non-religious private schools. That program, which is still in operation, provides state funding for low-income Milwaukee parents to send their children to private schools. Funding is diverted from Milwaukee Public Schools. It allows up to 1,500 students to participate.

The expanded program would have allowed up to 15,000 students to participate.