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Mr. Lanting, a member of South Holland Protestant Reformed Church, is a practicing attorney.

The [Milwaukee voucher] program does not involve the state in any way with the school’s governance, curriculum, or day-to-day affairs. The state’s regulation of participating private schools, while designed to insure that the program’s educational purposes are fulfilled, does not approach the level of constitutionally impermissible involvement.

Supreme Court of Wisconsin, Majority Opinion (June 10, 1998).

Early this summer, the Wisconsin Supreme Court gave the school voucher movement its most significant legal victory. In a landmark 4-2 decision, Wisconsin’s highest court surprisingly ruled that the controversial Milwaukee Parental Choice Program (MPCP) passed constitutional muster. School choice advocates called it a watershed decision in the now bitter national debate over state voucher funds paid to private schools. Opponents, including People for the American Way, announced plans to appeal the decision immediately to the U.S. Supreme Court.

The Milwaukee Program

The experimental Milwaukee school choice program was originally adopted by the Wisconsin legislature in 1989 to allow some 800 students from low-income families to escape the embattled Milwaukee public school system and attend “nonsectarian” (nonreligious) private schools using a state funded tuition voucher.

The original MPCP survived a number of legal hurdles, but in 1995 the legislature incensed choice opponents by raising to 15,000 the number of eligible low income students, and, more importantly, removed the limitation that the participating private schools be “nonsectarian,” thus allowing parents to choose to place their children in Catholic, Lutheran, and Jewish schools. MPCP detractors immediately challenged the amended program, angrily insisting that tuition vouchers ($2,500 per student) payable to private religious schools was a crass violation of the First Amendment prohibiting “establishment of religion.”

The Lemon Test

The trial court and the state appellate court both earlier declared that the amended MPCP was a violation of the constitutionally mandated notion of a “wall of separation between church and state.” But, on appeal, the Wisconsin Supreme Court overruled the lower courts, holding that the Milwaukee voucher program was constitutional, notwithstanding the use of public funds by religious schools. Reviewing U.S. Supreme Court church/state cases, the court noted that the appropriate standard was the three-prong test enunciated years ago by the Supreme Court in the case of Lemon v. Kurtzman: (1) does the challenged law have a secular legislative purpose; (2) does its principal or primary effect neither advance nor inhibit religion; and (3) does it create excessive entanglement between government and religion.

First Prong — Secular Purpose

The court quickly found that the amended MPCP satisfied this part of the three-prong Lemon test.

The [secular] purpose of the MPCP program is to provide low-income parents with an opportunity to have their children educated outside the embattled Milwaukee Public School System. “…State’s efforts to assist parents in meeting the rising costs of educational expenses plainly serves this secular purpose of ensuring that the State’s citizenry is well-educated.”

Second Prong — Primary Effect of Advancing Religion

The court admitted that analysis of the second prong of the Lemon test — does the law’s primary effect either advance or prohibit religion? — was more difficult. Acknowledging the requisite “wall of separation between church and state,” the court nonetheless quoted a former U.S. Supreme Court decision cautioning that in maintaining this wall of separation, courts must be sure “they do not inadvertently prohibit the government from extending its general law benefits to all its citizens without regard to their religious belief.”

Carefully reviewing numerous Supreme Court decisions that held that the Establishment Clause is not violated when the government offers a “neutral service” that is “in no way skewed towards religion,” the Wisconsin court held that “educational assistance programs” do not run afoul of the Constitution if those programs provide public aid to both sectarian and non-sectarian schools (a) on the basis of neutral, secular criteria that neither favor nor disfavor religion, and (b) only as a result of numerous private choices of the individual parents of school-age children.

Since the MPCP gives participating parents the choice of sending their children to a neighborhood public school, a private non-sectarian school, or a private religious school, the program neither “favors nor disfavors” religion. Secondly, because the amended MPCP provided monetary aid by individual tuition reimbursement checks payable to the parents, the court found that “not one cent” of state aid ultimately flows to the religious schools “except as a result of the necessary and intervening choice of individual parents.”

Third Prong — Excessive Government Entanglement

Finally, the court faced the third element of the Lemon test: whether the amended MPCP would result in excessive governmental entanglement with religion. The court noted that although the participating sectarian schools would be subject to “performance, reporting, and auditing requirements,” together “with nondiscrimination, health and safety obligations,” these oversight activities were not a “comprehensive, discriminating, and continuing state surveillance” which would constitute constitutionally impermissible involvement. The program, declared the court, does not involve the state in any way with the religious school’s governance, curriculum, or day-to-day affairs:

Routine regulatory interaction which involves no inquiries into religious doctrine, no delegation of state power to a religious body, and no detailed monitoring and close administrative contact between secular and religious bodies, does not of itself violate the nonentanglement command.

Other Objections

The court also rejected other challenges to the amended MPCP, holding that it was not an “abandonment of the public school system” and was still experimental in nature since it continues to allow the state to “measure the effects of choice and competition on education.” Finally, the court brushed aside arguments that the tuition subsidy program violated the Wisconsin Constitution, holding that public funds may be placed at the disposal of parents so long as the program on its face is neutral between sectarian and nonsectarian alternatives and the transmission of the public funds is “guided by the independent decision of third parties (the parents).”

Comments

Because the Wisconsin Supreme Court is the highest court ever to uphold religious school vouchers, the ruling will undoubtedly give the school choice movement new momentum, although the opponents of the use of state funds for tuition at private and parochial schools are apparently determined to appeal this controversial decision to the U.S. Supreme Court. Perhaps the central issue of contention will be the “entanglement” prohibition. Although the Wisconsin court held that the state will not be involved “in any way” with the recipient schools’ “governance, curriculum or day-to-day affairs,” the fact remains that the participating religious schools will be subject to certain “performance, reporting and auditing requirements,” as well as federal nondiscrimination laws. Although the court dismissed this state oversight as “minimal,” many questions remain as to whether this kind of obligatory state surveillance will be fatal to the voucher program in Wisconsin and similar experimental programs in other states.

Historically, governmental oversight and intrusion have always followed governmental funding, and it is difficult to envision why such entanglement will not accompany tuition vouchers. This unavoidable consequence should be deplored not only by church/state separatists, but also by parents and teachers in the Christian dayschool tradition who are understandably wary of state oversight of private parental Christian schools. Health and safety regulations are perhaps unavoidable, but state interference in admissions, curriculum, and financial issues often sound the death knell for parental schools. For many reasons, Reformed Christian parents should carefully monitor the tuition voucher battle in the coming months and years.