State Supreme Court Rules Voucher Expansion is Constitutional
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