Milwaukee Voucher Victory

Published September 1, 1998

In the most resounding victory for parental choice in education in decades, the Wisconsin Supreme Court has upheld the Milwaukee Parental Choice Program (MPCP), rejecting voucher opponents who challenged the program’s inclusion of sectarian schools. An appeal of the decision to the U.S. Supreme Court is expected.

“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,” ruled Justice Donald Steinmetz, writing for the majority.

“The constitutional cloud over school choice is giving way to sunshine,” exulted Clint Bolick, litigation director for the Washington, DC-based Institute for Justice, which has represented the Milwaukee parents defending the program. “Giving parents a choice does not violate the Constitution.”

Institute for Justice President Chip Mellor concurred: “The Court’s careful analysis of the Constitutional issues provides powerful insight that voucher programs are fully compatible with the principles of the First Amendment.” Mellor predicted the June 10 decision would have a dramatic impact on other school choice cases–also being litigated by the Institute–that are pending before state supreme courts in Arizona, Maine, Ohio, and Vermont.

“Through today’s decision, the court has unleashed one of the most powerful forces in the universe–competition–to strengthening the learning experience for every child, in every school,” commented House Speaker Newt Gingrich, reflecting the national significance of the Wisconsin court’s ruling.

The Milwaukee Parental Choice Program allows more than 15,000 low-income children to use their share of state education funds as a voucher to pay for tuition at private schools. When the program was first adopted in 1992, students were not allowed to use their vouchers at religious schools, but in 1995 the state legislature extended the program to include sectarian schools. Opponents challenged that expansion as a violation of the religious establishment provisions of the First Amendment to the U.S. Constitution.

The court rejected that challenge by a 4-2 vote in a carefully argued and well-reasoned 68-page decision. Significantly, the First Amendment issue was decided by a 4-0 vote; the only dissent was a single paragraph, fewer than 100 words, addressing only the Wisconsin state constitution’s provision on religious establishment.

The Wisconsin court found the use of public funds in religious institutions permissible if two conditions are met: first, that the program is neutral regarding religious and secular options; and, second, that parents or children direct the funds. Both conditions are met by the MPCP.

The court rejected opponents’ claim that the program violates the Wisconsin Constitution, finding that the program operates primarily for the benefit of children, not religious schools. All other claims–including the NAACP’s claim that the program unconstitutionally segregates Milwaukee’s schools–were dismissed.

“This is a clear victory for the children of Milwaukee and, hopefully, a harbinger of hope for children around the nation,” commented Peter Hutchison, general counsel of the Landmark Legal Foundation, which has worked since 1989 with Wisconsin State Representative Annette “Polly” Williams and Milwaukee families to expand school choice to both secular and religious private schools.

The expanded MPCP, wrote Steinmetz, “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.”

George A. Clowes is managing editor of School Reform News. His email address is [email protected].