Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
June 22, 1998
On June 10, Wisconsin's Supreme Court ruled 4-2 that the Milwaukee Parental Choice Program (MPCP) may include religious schools in its voucher program. The original aim of the state's law was to enable poorer families to choose alternatives to local public schools. Several years ago, however, the court disallowed the use of vouchers for religious schools. The argument then, as it remains today for most opponents, was that the use of public funds for religious schools violates the state constitution as well as the First Amendment of the U.S. Constitution.
This time the court ruled the other way. Its argument stuck close to the so-called "Lemon test"—three qualifications developed by the U.S. Supreme Court in 1971: a law must (1) have a secular purpose, (2) neither advance nor inhibit religion, and (3) not lead to excessive entanglement between the state and religious organizations. The MPCP meets all of these tests, said the four assenting justices.
The MPCP has the "secular" purpose of giving poor families choice in schooling. It's purpose is educational. As far as the law is concerned, it would not matter whether every voucher or no voucher was used at a religious school.
The fact that some or even many parents may choose religious schools is not the state's decision, thus it neither advances nor inhibits religion. The ruling picked up on a point emphasized by a friend-of-the-court (amicus curiae) brief filed on behalf of the Center for Public Justice and other organizations, namely, that it does not matter even if most parents in the program choose religious schools. The program is neutral because it is nondiscriminatory.
And finally, since government has no responsibility to monitor the choices parents make, it will not become entangled in religion.
Opponents of the decision, including Americans United for the Separation of Church and State, contend that the MPCP will now force taxpayers to support religious institutions because some of their taxes will be channeled to religious schools. But this is a twisted interpretation of the law. Taxes collected by the state and expended through this program are for the general ("secular") purpose of improving the education of poor children, period. The fact that some parents will use their vouchers for education at religious schools no more forces other citizens to support religion than does government's support of chaplaincy programs or of fire protection for churches force citizens to support religion.
In fact, if taxes are collected from all citizens to pay for the education of all students, then not to give equal tax support for the education of children whose parents choose religious schools is to inhibit their religious freedom. Justice and neutrality require that if taxes are collected from all, then government's support of education ought to be equal for all, and all parents should be free of conscience, without financial burden, to choose schooling for their children.
Americans United and other groups have it all wrong, and the Wisconsin Supreme Court is helping to set things straight. So-called "secular" education is no less biased or committed than is education offered in a Catholic or Muslim school. Whether public school teachers ignore religion or treat it as a private matter, they are conveying a view of life as profoundly lacking in neutrality as the view of life conveyed by a Christian or Jewish school. Let's do as the Wisconsin court says and give equal treatment to all.
The Milwaukee program begins to make true neutrality possible, and it is right and just that it should begin with those who, for financial reasons, have no choice.
—James W. Skillen, Executive Director
Center for Public Justice
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”