Breaking Down the Separation of Church & State by Attorney Melanie Cohen (December 1995)

This year Wisconsin State Governor Tommy Thompson, who has become a national figure, purposed, and the state legislature passed, a radical expansion of Wisconsin’s existing “school choice voucher” program, which had previously been limited to only nonsectarian schools in Milwaukee.

Under the expansion, which was signed into law on July 26, 1995, religious schools are allowed to participate in the program. There has been a tremendous response by the private religious schools. Over three-fourths–more than 70 of the 102 schools–indicating intent to participate in the new program were religious.

I want to tell you about the constitutional implications and what is going on with our case in the Wisconsin Supreme court right now.

The School Choice program is the choice to attend the school of your choice. It gives parents a choice of religious education, or education in general, for their children.

The Choice program in Wisconsin is relatively new. It was enacted in 1990 and was limited to nonsectarian schools–some of the legislative history indicates with an intent to avoid constitutional problems. Funny enough.

Under the original program, which was limited to Milwaukee public schools, one percent of the Milwaukee public school population was allowed to participate in the first year. Then one and a half percent was allowed to participate the second year. It was pretty limited in scope. There are about 23 nonsectarian private schools in Milwaukee. It was argued by legislators that it was hard to hold an experiment on such a small basis, a reason given for expanding the program.

The statute permitted qualified students in grades Kindergarten-12, who reside within the city of Milwaukee, to attend, at no charge, any nonsectarian private school located in the city. Once the state Superintendent of Public Instruction received proof that the student was in fact enrolled in a private school though the choice program, the state would send a check directly to the private school. They sent money to the private school that would have been sent to the public school. Since the schools in Milwaukee are funded on a per pupil basis, private schools were given the amount that would have been given to the public school if the child had attended a public school.

Legal Challenges To The Choice Program

The first challenge was not based on religion or the federal constitution. Davis v. Groverwas essentially based on a number of Wisconsin constitutional provisions regarding procedures that had to be followed; uniformity of education in the state and whether or not the law was promoting a public purpose. The Wisconsin Supreme Court decided that none of the clauses are being violated by this law, and the choice law was okayed.

The second challenge was based on religion. It was a challenge brought by a group of parents who said that the original choice law limited to nonsectarian schools was unconstitutional because it denied themtheir free exercise rights and equal protection rights because they prefer to send their children to religious schools under the choice program (which they are obviously not allowed to do by statute). This case was brought to federal court and the state was in the position of defending the law; defending the decision to limit the choice program to nonsectarian schools. They were prepared to argue that extending the choice program to religious schools would violate the Establishment Clause. The Eastern District of Wisconsin Court in Milwaukee agreed with the state and said that expanding the program to have tuition funds paid directly from the state to the religious schools would violate the Establishment Clause. That case is on appeal right now in the 7th Circuit and oral arguments are scheduled.

Summary Of The Law

This year’s budget bill is about 4,000 pages long and contains a lot of very controversial issues dealing with state government. Many people are very concerned because the school choice expansion was included in the budget bill. The budget bill expanded the choice program to religious schools by deleting the word “nonsectarian.”

The amended statute now permits any qualified students in grades Kindergarten-12 who reside within the city of Milwaukee to attend, at no charge, any private school located in the city.

This little amendment is the basis of our legal challenge. That wasn’t all that the law did. The way the funding would go was changed. No longer are checks made out to private schools. Under the amended choice program, checks are made out to the parent or guardian. Under this amended program, checks are still sent directly to the religious school and the parent or guardian is required by statute to restrictively endorse the check for the use of the private school. (If this isn’t all belts and suspenders, I don’t know.)

Schools get either the per pupil amount or the actual operating expense of the public schools, whichever is less as determined by the Department of Public Instruction. The operating costs include the debt service as well, which could be payment on construction of chapels. There are no limitations on how the private schools can use the money they receive from the state.

The original choice program was limited to 65 percent, meaning only 65 percent of participating schools’ enrollment could be students attending through the choice program. This was eliminated. Under the new law a religious school could conceivably have 100 percent of its student enrollment through the choice program completely state funded. To my knowledge that hasn’t happened.

This law was intended to go into effect in the 1995-96 school year which began in Milwaukee on August 31. Thompson signed the bill on July 26, so that wasn’t a whole lot of time between passage of the law and implementation. It was no surprise that Governor Thompson was going to sign it since he had proposed it and religious schools were gearing up to participate in this program.

The Constitutional Implications

The obvious federal problem with the amended choice program is the Establishment Clause. The first clause of the First Amendment of the Constitution says, “Congress shall make no law respecting an establishment of religion.” It’s our view, and consistent with a long line of Supreme Court cases, that direct funding of religious education violates the Establishment Clause.

The new Rosenberger v. the University of Virginia decision didn’t do anything wonderful for the Establishment Clause jurisprudence. While we’re concerned about Rosenberger and unhappy with the Supreme Court’s decision, we don’t think it should be a problem in our case for a couple of reasons. Rosenberger doesn’t overrule the long line of cases that said you can’t have direct funding of religious education. The Rosenberger case did not involve tax funds. Rosenberger involved the payment of a student activities fee, which was then disbursed from the University to a third party, a printer to print the religious groups’ newspaper. The court indicated in several passages that it wasn’t a tax case. It wasn’t one of those cases where it was direct subsidy of religion. We’re hopeful that the Rosenberger case isn’t really going to be a problem–but it’s still been a bad year for the Establishment Clause.

Wisconsin state law is another constitutional problem because it has a more restrictive Establishment Clause analog than the federal Establishment Clause. Many states do have more restrictive clauses and those state constitutions can be an independent ground for upholding or invalidating any law. I urge people to look to their state constitutions and urge their Supreme Courts to independently analyze those constitutions and give them meaning and effect, not just mirror the federal constitutional analysis.

The Wisconsin Constitution is particularly strong on the funding issue. It says explicitly in the last clause of Article 1, section 18:

“Nor shall any money be drawn from the treasury for the benefit of religious societies or religious or theological seminaries.”

There’s early case law that says “religious seminaries” means religious schools or includes religious schools. Historically, Wisconsin has been very protective of the separation of church and state. The situation in the early case law was this: the state was busing private school religious students to the public school nearest to their private school. The buses were not even taking them all the way to their school. Under this provision it said you couldn’t do this. Of course, theylater changed the Constitution to allow it, but the case is still good law. That’s probably the most analogous case.

Unfortunately, in recent years the Wisconsin Supreme Court has not given Article 1, section 18 the independent analysis that it deserves. Instead, they have adopted the First Amendment analysis and construed Article 1, Section 18 to be no broader than the First Amendment. There’s a recent case called King v. the Village of Waunakee in which that happened. King is different from our case, and that court, even while not applying a different analysis, still said that the Wisconsin Constitution is less flexible than the Establishment Clause, meaning, less flexible in its interpretation–that is, more restrictive.

We’re hoping a Supreme Court will give us an independent basis. We really think that Article 1, Section 18 is very clearly implicated by the law as well as the First Amendment.

Where Are We? What Will Be Happening?

The budget bill was signed into law on July 26. We filed a lawsuit in the Dane County Circuit Court on August 1. The Circuit Court in Wisconsin is the trial level court. There’s the Circuit Court, the Court of Appeals, then the Wisconsin Supreme Court, which is the final interpreter of the Wisconsin Constitution and all cases arising under Wisconsin law.

Along with our complaint, we filed a motion for a preliminary injunction, asking the court to immediately prohibit the implementation of the amended choice program pending resolution of our constitutional claims. The grounds for that were that we had a reasonable likelihood of success under both Article 1, section 18 and the First Amendment and that our plaintiffs’ rights would have been irreparably injured if the law were to go into effect.

I work on behalf of the ACLU and we represent a group of plaintiffs that are parents, taxpayers and clergy members in the Milwaukee area who object to the program. The same day, the Milwaukee Teacher’s Association and a group of plaintiffs also filed a lawsuit. The two lawsuits, which had basicallly the same claims, were eventually consolidated, although the teachers have pursued some additional issues that we have not. In both cases a motion for preliminary injunction was filed along with the complaints. On August 1 we had a hearing date set for August 17, which would give plenty of time for the judge to resolve the issue before the August 31 school year began.

On August 10 we had a pretrial conference and were all prepared for hearing. Later that afternoon, Governor Tommy Thompson, who was not named as a party in the Circuit Court action, petitioned the Wisconsin Supreme Court to take the case on original jurisdiction and stay the Circuit Court proceeding. Original jurisdiction is a procedure in Wisconsin where the Supreme Court will take a case and hear it if it has important public policy implications without requiring the litigants to go through the normal procedure of the trial court, the Court of Appeals, and as a last resort, the Wisconsin Supreme Court.

The very next day we got an order staying the Circuit Court proceeding, which would mean we wouldn’t have the injunction hearing on the 17th. We were a little surprised! With the circuit proceeding stay we had no choice. We responded to the governor’s petition for original jurisdiction by opposing the petition, and in the alternative, moving the court for preliminary injunction. We had never heard of anyone doing that before, but we figured we had no other choice. On August 26, the State Supreme Court granted our motion for preliminary injunction and enjoined all aspects of the expanded choice program.

That’s were we are now. The program’s enjoined and it’s all in the Supreme Court. What we do now is brief the issues. The Supreme Court is not set up to resolve disputes of fact. Now we have to show the court that there are no disputes of fact, and we don’t know that yet. We don’t think there will be, but who knows once we really get into it? If there are disputes of fact we don’t know what will happen. The court may retain jurisdiction and send it back for fact finding. They may get rid of jurisdiction altogether. It’s kind of a mystery. Assuming that we’re going to proceed in the Supreme Court, which I believe we will, we’ll brief the issues and hopefully get a decision by the end of this term. Hopefully we’ll win and the program will not go into effect.

This case has gotten national attention. Pennsylvania is about to implement a similar law. Right now we’re acting under the original choice program that’s limited to the nonsectarian schools and we’re against it. On that issue we’re going to be awaiting a decision from the Seventh Circuit on Miller v. Benson and see what they say about the original choice program.

Attorney Melanie Cohen is part of the legal team challenging Wisconsin’s unprecedented decision to grant money for parochial school tuition. She works with LaFollette & Sinykin in Madison, Wisconsin. She received her Bachelor of Arts degree in philosophy and political science (cum laude) from the University of Vermont, and her law degree, with honors, from the University of Wisconsin Law School. She also worked with tribes on self-government issues as Assistant Director of the Great Lakes Indian Law Center. Her practice emphasizes individual and civil rights, employment, health and Indian law.

Freedom From Religion Foundation