Second Loss For Parochial School Aid (September 1997)

A Wisconsin test case on vouchers that is being closely watched by state/ church separationists across the country, drew a second court decision against public aid to parochial schools in August.

The Wisconsin State Appeals Court, District IV, ruled unconstitutional the attempt by Gov. Tommy Thompson to use public money for vouchers for religious schools. The August 22 decision, by a 2-1 margin, affirmed an earlier district court ruling against public payment for low-income school children in Milwaukee to attend parochial schools. The challenge is being brought by the ACLU of Wisconsin, with cooperation from other groups, including the NAACP.

District Court Judge Paul Higginbotham earlier had ruled that the proposed program clearly violated the Wisconsin Constitution.

For himself and Judge Dykman, Judge J. Deininger upheld Judge Higginbotham’s reasoning. Dykman wrote that Higginbotham was correct to rely heavily on the Weiss decision of the Wisconsin Supreme Court, which halted religious worship in Wisconsin schools in 1890. The Weiss decision ruled that reading the King James Bible to students at a public school violated the Wisconsin constitution, which expressly forbids public aid to “seminaries,” interpreted by Weiss to mean schools.

Wisconsin Supreme Court justices in Weiss wrote that the state of Wisconsin has “probably furnished a more complete bar to any preference for, or discrimination against, any religious sect, organization or society than any other state in the Union.”

“Weiss is as valid today as it was a century ago,” Deininger concluded.

The Wisconsin Constitution, in addition to stating that there shall be no sectarian instruction in the public schools (Article X, Section 3), also says “[N]or shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent . . . [n]or shall any preference be given by law to any religious establishment, or modes of worship; nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.” (Article I, Section 18)

Lawyers challenging the parochial school aid plan researched the documents of the religious schools announcing their intent to participate in the lucrative program. Some 800 pages of excerpts from religious school handbooks, mission statements and other printed materials of the church schools were presented to the trial court. Representative excerpts from some of these documents follow:

  • “We believe our school exists to carry out the Savior’s command to ‘go and make disciples’ (Matthew 28:19). Consequently, our school’s primary reason for existence is to be a tool for bringing young souls to faith in Jesus . . .”
  • “First and foremost Garden Homes Lutheran Church conducts and maintains a Christian elementary school to assist Christian parents in the training and nurturing of their children in the Word of God.”
  • “In keeping with the purpose of our school, our curriculum is taught in the setting of God’s Word. Religion is not only taught as a subject, but our teachers have been trained to integrate God’s Word across the curriculum . . . Our curriculum offerings place Christ as the focal point for all study.”
  • “The message of Jesus is taught in religion classes and other curricular areas . . . Because of the nature of a Catholic school, religion is taught daily . . . . Catholic values are also incorporated into all other aspects of the curriculum.”
  • “The Bible forms the core and center upon which all instruction is based . . . All subjects are taught by a Christian teacher in the light of God’s Word, emphasizing God’s love for all men through Jesus.”
  • “We teach all the traditional subjects, but we teach them differently–from a Christian perspective.”

Out of 122 private schools in Milwaukee, 89 are religious. Approximately 85 percent of pupils in Milwaukee in private schools attend religious schools. The proposed program primarily would benefit Catholic schools.

Legal maneuvers relating to the lawsuit have been complex. In an earlier attempt to avoid the lower courts on this constitutional issue, Gov. Thompson and other religious proponents asked for and were granted unprecedented leave from the Wisconsin Supreme Court to move an original action from the district court to that court. Following oral argument, the seven-member Wisconsin Supreme Court announced that it was deadlocked 3-3 with one member recusing herself (no reason given or required). This tie resulted in remanding the case to the Dane County District Court, where the lawsuit had been filed originally, which ruled against the religious program on the obvious state/ church separation grounds.

Following the August Appeals Court decision, the lawsuit moves again to the Wisconsin Supreme Court. Five of its seven justices are now Catholic. Not an encouraging sign is a recent Wisconsin high court decision that the Catholic Church cannot be sued for sexual abuse of parishioners by its priest-employees. The state Supreme Court majority wrote that the church was permitted to deal privately with such criminals through “prayer.”

Freedom From Religion Foundation