Wisconsin School Voucher Law Passes Legal Challenge

The Supreme Court rejected a constitutional challenge Monday to a Wisconsin law that gives low-income parents up to $5,000 per year for private or parochial schooling in Milwaukee, a move likely to encourage “school choice” efforts in several other states.

On an 8-1 vote, the justices dismissed appeals from the nation’s teachers unions and the American Civil Liberties Union, which argued that such direct state aid for religious schools violates the Constitution’s separation of church and state. Justice Stephen G. Breyer voted to hear the appeal.

Over the last decade, the high court has edged away from the doctrine of strict separation. In a series of rulings, it has allowed some religious activities in public schools and some public funding to go to parochial schools. For example, the court has said students can meet for Bible study on public school campuses, while federally funded tutors can teach in parochial schools.

At each step, however, the court has moved cautiously, often ruling by narrow 5-4 margins. Even the court’s conservatives have insisted the key choices be made by students and parents--not by public officials--and that the state’s aid not be seen as endorsing a particular religion.

The Wisconsin case had emerged as the clearest test of whether the court would allow large amounts of public money to be funneled into parochial schools. The answer announced Monday amounts to a qualified “yes.”

In a one-line order, the justices turned down the appeals from those who believe the program is blatantly unconstitutional. The justices did so, however, without issuing a written ruling.

This has the effect of clearing the Wisconsin voucher program to continue and of upholding a state court ruling in its favor. But it does not set a binding national precedent that must be followed by lower courts.

As a result, advocates on both sides were free to interpret the significance of the move.

Some proponents of vouchers said the court had given a “green light” to their use nationwide. Some critics of the idea said the court’s action was disappointing, but ultimately of limited impact.

Washington lawyer Clint Bolick, a champion of school choice, greeted the outcome with muted celebration.

“We are pleased the three-year legal battle over Milwaukee is finally over,” said Bolick, who represented some of the parents in the case. “The families who are enjoying the benefits of this wonderful program can rest a little easier.”

Under the Wisconsin measure, low-income parents in Milwaukee can obtain state vouchers, or tuition stipends, to cover the cost of sending their child to a private or parochial school. This year, the subsidy is set at a maximum of about $4,900, the amount of state aid that goes for each pupil in the Milwaukee public schools.

A majority of the 6,200 parents who took advantage of the private school option this year were African American, state officials said.

The Center for New Black Leadership, a conservative group here, hailed the decision for “preserving the power of African American parents to make fundamental decisions affecting the education of their children.”

Wisconsin’s Republican Gov. Tommy G. Thompson, the creator of the voucher program, won a resounding reelection last week, and Ohio Gov. George Voinovich, who spearheaded a similar program for parents in Cleveland, won election to the Senate.

“I see Florida and Texas as the next battlegrounds on school choice,” he said. The Bush brothers, newly elected Florida Gov. Jeb Bush and reelected Texas Gov. George W. Bush, have spoken in support of vouchers for low-income parents.

But elsewhere, the proponents of vouchers have been losing in the political arena. The concept has not achieved much popularity in California. In 1993, the state’s voters rejected a voucher initiative by more than a 2-1 margin.

Leaders of the teachers’ unions say the idea of private school aid was dealt something of a defeat at the polls last week as well. In Colorado, voters rejected a ballot measure that would have given parents tax credits if they paid tuition to private schools.

Sandra Feldman, president of the American Federation of Teachers, said the election results “send a message loud and clear that [voters] want the public schools improved for the millions of students who attend them.”

The National Education Assn., which led the legal challenge to the Wisconsin plan, said it was disappointed the court allowed it to continue.

“Every day, the voucher plan does more damage to the Milwaukee public schools, and the city’s taxpayers are paying the tab,” said NEA President Bob Chase. Because the state money is diverted into private schools, officials of the public school district say, they might have to raise taxes next year to recoup the loss.

The next court decision on vouchers will likely come from Ohio. The state Supreme Court there is considering a challenge to the state aid program for Cleveland.

In June, the Wisconsin Supreme Court upheld the aid program for Milwaukee and ruled it did not violate the 1st Amendment’s ban on laws respecting “an establishment of religion.” The state funds are distributed based on “neutral, secular criteria that neither favor nor disfavor religion,” the state court said.

Under the high court’s decision Monday in Jackson vs. Benson, 98-376, that ruling is affirmed.

Meanwhile, the court announced it would take up the issue of whether police can be sued for taking along news reporters or TV cameras when they enter a private home.

The U.S. appeals court in California said agents can be sued for taking the press when executing a search warrant, but another court in Virginia disagreed.

The high court will hear both cases in February (Wilson vs. Layne, 98-83 and Hanlon vs. Berger, 97-1927).

* RULING ON WHITE HOUSE: The court refused to shield White House lawyers from having to testify. A20