Vouchers for Religious Schools Allowed
By Joan Biskupic
The Supreme Court yesterday refused to enter the national debate over the constitutionality of school "choice" programs that use taxpayer money to send poor children to religious schools. The justices, by an 8 to 1 vote, rejected a challenge to a broad-scale Wisconsin policy that has become the model for voucher advocates nationwide.
By declining to take the case, the justices left in place a Wisconsin Supreme Court ruling that said taxpayer-funded vouchers for religious schools do not violate the Constitution's prohibition on government policies that promote religion.
Yesterday's action in the closely watched case sets no national legal precedent, but it does keep up the political momentum for school-choice programs championed by some conservatives who say they are an essential element of education reform. The Wisconsin initiative is the largest nationwide, allowing as many of 15,000 Milwaukee children, or 15 percent of the total student enrollment, to leave public schools for private ones.
Only Justice Stephen G. Breyer dissented from yesterday's order in Jackson v. Benson. Neither he nor any of the justices in the majority gave an explanation, and as a result, it is unclear why the justices refused to take up one of the most topical but politicized education issues. Four votes are required to accept a case, but five votes are needed to actually decide it. Disputes over aid to religion and the separation of church and state are notoriously difficult for the justices, and many recent church-funding cases have been decided by a single vote.
Perhaps the justices themselves were anxious about which position would garner the majority in a case that could set an important constitutional standard. It could also be that they wanted the issue to develop further in state courts.
Lawyers on both sides had urged the high court to hear the Wisconsin case, to clear up confusion among lower courts and school officials. Robert H. Chanin, who represented the Milwaukee Teachers' Education Union and others challenging the Wisconsin program, told the justices the case held practical as well as legal significance.
During the 1998-99 school year, Chanin said, Wisconsin will "divert up to $70 million of public funds from the Milwaukee Public Schools and use that money to pay for as many as 15,000 students to attend private schools, the overwhelming majority of which are pervasively sectarian."
Chanin said four other state supreme courts, in Arizona, Ohio, Maine and Vermont, have recently heard challenges to voucher programs and are expected to issue rulings in upcoming months.
Numerous other states are in the process of experimenting with school choice policies. In the District, President Clinton earlier this year vetoed a D.C. school voucher bill that would have provided about 2,000 children with up to $3,200 each to pay tuition at private or parochial schools. Clinton said at the time vouchers "would pay for a few selected students to attend private schools" while failing to improve schools for "the overwhelming majority of the District's students."
In the Wisconsin dispute, parents supporting school choice had asked the justices to enter the case to resolve the legal uncertainty nationwide. Lawyer Clint Bolick said the parents wanted to secure the kinds of educational opportunities available to others with more means.
Wisconsin's groundbreaking program gives vouchers of about $5,000 to any child in a family whose income is near the poverty level. For every student who uses a voucher and transfers out of the Milwaukee public school system, the state cuts the system's budget by about $5,000 -- a consequence that heightened the interest of local public school teachers trying to have the program struck down.
It has been 25 years since the Supreme Court reviewed tuition reimbursement for religious schools, at the time rejecting a New York policy that reimbursed low-income parents. But since then, the court's membership has dramatically changed, as has the justices' understanding of how it assesses whether school funding programs impermissibly advance religion.
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