Wisconsin Rules in Favor of Parental Choice

Fourth Quarter1998

On June 10, the Wisconsin Supreme Court ruled in favor of the state's Milwaukee Parental Choice Program (MPCP). The program had been challenged by opposition groups because it allows eligible poor students to use vouchers to choose religious as well as secular independent schools. In its first stages the MPCP allowed voucher use only for non-religious schools, though its purpose was to give students a choice outside the public schools that were badly failing inner-city children. More recently the legislature approved expansion of MPCP to include religious schools.

The Center for Public Justice, along with other groups, submitted a friend-of- the-court brief in the Wisconsin case, arguing in support of the MPCP that students have every right to select an explicitly religious school with such a voucher.

Although the court stayed within the bounds of the U.S. Supreme Court's muddled rulings on this subject, its decision represents a significant advance toward the goal of equal funding of all students held out by the Center for Public Justice.

The following excerpts come from the decision (case 97-0270, which can be accessed in full through the Institute for Justice website.).

The first issue we address is whether the amended MPCP violates the Establishment Clause of the First Amendment to the United States Constitution.... Upon review we conclude that the amended MPCP does not violate the Establishment Clause....

When assessing any First Amendment challenge to a state statute, we are bound by the results and interpretations given that amendment by the decisions of the United States Supreme Court.....Our role is not aided by the Supreme Court's candid admission that in applying the Establishment Clause, it has "sacrificed clarity and predictability for flexibility."

In an attempt to focus on the three main evils from which the Establishment Clause was intended to afford protection: sponsorship, financial sup-port, and active involvement of the sovereign in religious activity . . . the [U.S. Supreme] Court has promulgated a three-pronged test to determine whether a statute complies with the Establishment Clause.... Under this test, a statute does not violate the Establishment Clause if (1) it has a secular legislative purpose, (2) its principal or primary effect neither advances nor inhibits religion, and (3) it does not create excessive entanglement between government and religion.

[With regard to the first prong of this test] the purpose of the program is to provide low-income parents with an opportunity to have their children educated outside of the embattled Milwaukee Public School system. The propriety of providing educational opportunities for children of poor families goes without question.

[With regard to the second prong, the U.S. Supreme Court has held that] state programs that are wholly neutral in offering educational assistance directly to citizens in a class defined without reference to religion do not have the primary effect of advancing religion.... The Supreme Court, in cases culminating in Agostini [1997], has established the general principle that state educational assistance programs do not have the primary effect of advancing religion if those pro-grams provide public aid to both sectarian and nonsectarian institutions (1) on the basis of neutral, secular criteria that neither favor nor disfavor religion; and (2) only as a result of numerous private choices of the individual parents of school-age children. The amended MPCP is precisely such a program.

A student qualifies for benefits under the amended MPCP not because he or she is a Catholic, a Jew, a Moslem, or an atheist; it is because he or she is from a poor family and is a student in the embattled Milwaukee Public Schools.... The amended MPCP, therefore, places on equal footing options of public and private school choice, and vests power in the hands of parents to choose where to direct the funds allocated for their children's benefit....

[Finally, with regard to the third prong] the amended MPCP will not create an excessive entanglement between the State and religion. Under the amended program, the State need not, and in fact is not given the authority to impose a "comprehensive, discriminating, and continuing state surveillance" over the participating sectarian private schools.
 

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It is ironic that, using state vouchers, parents may enroll their child in a day care program at a religious institution where a teacher employed by the institution not only teaches her the alphabet, but leads her in prayer at meal time. Yet one day after she leaves that program, the court of appeals found a constitutional violation because [the Milwaukee Parental Choice Program] permits the same parents to enroll the same child in the same institution teaching the same alphabet and the same prayers (conceivably even in the same classroom under the same teacher)—the sole distinction apparently being that the child is now in a "K-5" setting.

—from the amicus brief submitted to the Wisconsin Supreme Court by the Center for Public Justice