Supreme Court Decision Due on School Vouchers

This year’s most significant shift in education law may take place this week, not at the ballot box on Tuesday but at the Supreme Court today.

In recent years, advocates of “school choice” have been pressing for the legal right to use public money to pay for private and parochial schooling.

In June, they won a potentially landmark victory when the Wisconsin Supreme Court upheld a new state law that allows low-income parents in Milwaukee to get some public funding when they choose private schooling for their children.

Most of the parents taking advantage of the option are African American, and most of them have chosen parochial schools.

But the nation’s teachers’ unions, joined by the American Civil Liberties Union, the American Jewish Congress, the NAACP and People for the American Way, among others, have appealed the case to the Supreme Court. They insist that direct state aid for religious schooling violates the Constitution’s guarantee that church and state will be separated.

Twenty-five years ago, the high court agreed. It struck down a New York law that gave school vouchers to poor parents and said in 1973 that public funds cannot be used in religious schools.

However, many doubt that today’s more conservative court adheres to that view. Both sides are anxiously awaiting the court’s response to the appeal (Jackson vs. Benson, 98-376), and the justices are expected to announce their initial decision today.

If they simply reject the appeal and allow the Wisconsin voucher program to stand, it will be seen by many as a signal that public aid for parochial schooling is now legal.

More likely, however, the court will announce that it is taking up the case and will issue a written ruling on the constitutional question later.

“School choice is the most promising education reform in America. And this is the case that everyone is watching,” said Washington attorney Clint Bolick, whose libertarian Institute for Justice has championed the cause.

Under the Wisconsin law, the state will pay private and parochial schools in Milwaukee as much as $4,900 for every low-income child enrolled. The voucher check is sent directly to the private school, but the parent must sign it.

More than 6,200 children took advantage of the new option this fall, state officials said. To qualify for the program, a single parent can make no more than $14,000 per year. For a family of four, the income limit is $28,000.

Bolick supports school vouchers in general but he and other advocates have concentrated on establishing a foothold in troubled big-city school systems. Lawmakers created a similar program in Cleveland but that law is under challenge in the state Supreme Court.

“You start where the problem is worst, and that’s in the urban areas,” Bolick said. “This is the one reform that holds out the prospect of high-quality educational opportunities for inner-city kids.”

The lead attorney for the National Education Assn. credits Bolick with a smart sales tactic but said the voucher program is both bad constitutional law and bad education policy.

“It is a false panacea, but yes, it is appealing politically,” said the NEA’s Robert H. Chanin. “It says you can take your kids out of the public schools and we will pay you to do it. In reality, you take out a handful of kids and leave 90% of them behind and with less money.”

In Wisconsin, the state aid used to pay for the vouchers is subtracted from the budget of the Milwaukee public school district. It expects to lose $20 million this year, and the school board may have to raise local property taxes to compensate.

In Maine and Vermont, some rural areas give parents vouchers for schooling, and three states (Minnesota, Iowa and Arizona) allow their taxpayers to take deductions for some of the tuition they pay to private and parochial schools. On Tuesday, Colorado voters will decide whether to adopt a similar tax credit.

But the national legal battle over the idea has focused on Milwaukee.

“This is the ideal test case to decide the issue of vouchers,” Chanin said. If the Wisconsin program is upheld, the door “will be thrown wide open” for other states and cities to do the same, the NEA lawyers said in their appeal to the high court.

In Milwaukee, the door was thrown wide open by a state court ruling in June. Since 1995, low-income parents could opt to send their children to private schools, but religious schools were excluded. That changed when the state Supreme Court, on a 4-2 vote, cleared the way for parochial schools to be included as well.

While the 1st Amendment forbids an “establishment of religion,” the state court said the Wisconsin program is constitutional because it “neither favors nor disfavors religion.” Rather, it allows parents to choose the school they believe is best for their child, the judges said.

Their opinion noted that the Supreme Court has gradually moved away from the doctrine of a strict separation of church and state.

In 1993, the high court said federal funds can be used to pay for a sign-language tutor to help a deaf student attending a Catholic high school, just as it would if he were attending a public high school. Two years later, the court said students publishing a magazine for campus Christians at the University of Virginia were entitled to the same subsidies as students publishing other campus magazines. And last year, the court said federally subsidized tutors can teach pupils in parochial as well as public schools.

“A general government program that distributes benefits neutrally to any qualifying child” does not violate the 1st Amendment simply because some children use the money in a parochial school, Chief Justice William H. Rehnquist wrote in siding with the deaf child.

The recent decisions have come on 5-4 votes, led by Rehnquist and joined by Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. School-choice advocates are hoping that the same majority will uphold the Wisconsin law.

Private schools in Milwaukee are not required to participate in the program, but those that do must choose their students “on a random basis.” They may not select only the best pupils, and they may not discriminate based on race, gender, national origin or disability.

Despite the law, a school board lawyer said she doubts private schools will enroll disabled or disruptive children.

“I don’t believe it. I just don’t think it will happen,” said Julie Underwood, former counsel for the Wisconsin Department of Public Instruction and now general counsel for the National School Boards Assn. “I think this allows them to take the best and flush the rest.”

Brother Bob Smith, president of the Messmer Independent Catholic High School in northwest Milwaukee, said his school is open to all. Nearly all of the students come from low-income, single-parent families, he said.

“This year, 85% of our kids are African American, and certainly we have kids with learning disabilities, emotional disturbances, kids who have been expelled elsewhere,” he said.

Howard Fuller, the first black superintendent of the Milwaukee public schools, is an influential supporter of the voucher program.

“I support it for a simple reason: I want poor parents to be able to make choices for their children just like people with money,” he said.

The voucher program is forcing reform on the public schools, said Fuller, who stepped down in 1995.

“This program tells the public school people that, if they want to keep the kids and the money, they need to make the parents want to stay,” he said.