In a surprise to many legal observers, the U.S. Supreme Court has declined to review the constitutionality of the Milwaukee school voucher program.
The Nov. 9 high court action leaves intact a ruling by the Wisconsin Supreme Court that said the voucher program’s inclusion of religious schools does not violate the U.S. Constitution’s prohibition against government establishment of religion.
While the high court’s denial of review is not a ruling on the merits of the case and establishes no national precedent, some lawyers said it could send a message to other states that it was all right for now to include religious schools in a voucher program.
“By declining to review the Wisconsin ruling, the Supreme Court leaves intact the most definitive court decision to date, which solidly supports the constitutionality of school choice,” said Clint Bolick, the litigation director of the Institute for Justice, a pro-voucher legal organization in Washington that represents a group of low-income families whose children take part in the Milwaukee program.
But voucher opponents stressed that the constitutionality of religious school vouchers remains an unsettled question.
“Public education opponents will exploit the confusion to try to railroad through more voucher legislation, but legislators should be wary about climbing aboard the voucher train,” said Carole Shields, the president of People for the American Way, a liberal Washington advocacy group that opposes vouchers.
Robert H. Chanin, the general counsel of the National Education Association, said, “There are many reasons why the Supreme Court might choose not to review a particular case, and whatever the court’s reason in this instance, it’s important to note that it does not reflect agreement or disagreement with the Wisconsin ruling, nor does it have any precedential impact outside of Wisconsin.”
7,500 Vouchers
As is their custom, the justices gave no reason for denying review of Jackson v. Benson (Case No. 98-376). Only Justice Stephen G. Breyer voted to hear the case.
The action was surprising because the case was viewed in many quarters as worthy of Supreme Court review. The case involves a challenge to the Milwaukee Parental Choice Program, a voucher initiative first enacted by the state legislature in 1990.
In 1995, the legislature expanded the program, which serves low-income children in the city, and opened participation to religious schools.
Opponents, led by teachers’ unions, attacked the inclusion of religious schools as a violation of both the state and federal constitutions. They argued that inclusion of religious schools was prohibited by a 1973 U.S. Supreme Court ruling, Committee for Public Education and Religious Liberty v. Nyquist. In that case, the high court struck down a New York state program that provided tuition grants to parents of children in private schools.
But the Wisconsin Supreme Court majority said that Nyquist did not preclude upholding neutral and indirect aid to religious schools.
“A student qualifies for benefits under the amended MPCP not because he or she is a Catholic, a Jew, a Moslem, or an atheist,” said the Wisconsin high court. “It is because he or she is from a poor family and is a student in the embattled Milwaukee public schools.”
The state high court’s June 10 ruling allowed the voucher program to include religious schools for the first time this fall. Some 7,500 low-income Milwaukee children are attending 81 religious schools and 31 secular private schools with vouchers worth as much as $4,900 each.
Advocates on both sides of the voucher issue had urged the U.S. Supreme Court to review the case.
The appeal on behalf of the Milwaukee Teachers’ Education Association, the American Civil Liberties Union, and People for the American Way called on the justices to resolve the constitutional questions surrounding religious school vouchers so that opponents could battle them on policy grounds.
“If, as we believe, the establishment clause prohibits the use of public funds to pay for children to attend sectarian private schools, this court should reaffirm Nyquist now, so that those genuinely concerned with improving the quality of education in the United States will be able to re-focus their energies on measures that pass constitutional muster,” the opponents’ appeal said.
The Institute for Justice also supported review, telling the justices that “because parental choice plays a central role in education reform, its constitutionality should be resolved as quickly and definitively as possible.”
Only the state of Wisconsin formally opposed high court review of the case. The state told the high court that the state supreme court correctly upheld the Milwaukee program and that the case was not a good vehicle for revisiting Nyquist.
Gov. Tommy G. Thompson of Wisconsin, a Republican who has backed the voucher program since its inception, said in a written statement that the high court’s action “clears the way for impoverished families who want a better life for their children to choose schools that make the most sense to them.”
Other Cases Pending
Several other school choice lawsuits are pending across the country. The Ohio Supreme Court heard arguments in September over the constitutionality of a state voucher program in Cleveland that is similar to the Milwaukee program. A state appeals court ruled that the program’s inclusion of religious schools violates the federal and state constitutions. The program has continued to operate, serving about 4,000 children this year, pending the outcome of the state high court’s review.
Meanwhile, state courts in Vermont and Maine are reviewing much smaller voucher proposals in which parents in communities without a public high school are seeking public funds to send their children to religious schools. Such communities have traditionally paid tuition only for children to attend secular private high schools.
