Saturday, 20 June 2009

• WISCONSIN SUPREME COURT FINDS NO CONSTITUTIONAL OBSTACLE TO BROADENED VOUCHER PROGRAM-- FANS OF GOV

  From June 14, 1998.
  
  

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  In which we see that hell hath no fury like a government school fanatic scorned.
  

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  In Milwaukee, Wisconsin, children in low income families have been liberated from the clutches of government schooling!  For more than three years, the State has funding a pilot program under which these children may be eligible to receive vouchers to be used to attend the eligible school of their parents' choice.  More recently, the Wisconsin legislature concluded that the voucher program was worthy of expanding -- to include parochial and other religious schools within the definition of eligible schools.  So, during the summer of 1996, students and parents prepared to select from among a broad variety of schools to attend during the 1996-97 school year.

  But, quite predictably, teachers' unions and leftist advocacy groups such as the American Civil Liberties Union and the inaptly named People for the American Way, filed suit to prevent implementation of the expanded program. That litigation led to a trial court striking down the expansion of the program, and to appeals, first to the Wisconsin Court of Appeals (which agreed with the trial court decision striking down the program expansion) and then to the Wisconsin Supreme Court.

  This week past, the Wisconsin high court overturned the decisions of the lower courts and reinstated the expanded program.  As a consequence, as students and parents prepare for the 1998-99 school year, they will again have the opportunity to choose among the best of Milwaukee's entire selection of public and private and religious schools.  Hailed by fans of religious freedom, the decision of the Wisconsin Supreme Court has its detractors.  Leading with their lips, for example, were spokespuppets for the ACLU and for People for the American Way.

  Carole Shields, with People For the American Way, stated:

  "This disastrous decision opens the way for millions of dollars of everyone's taxes to be misused to promote someone else's religion.  Separation of church and state is as American as apple pie - and the Wisconsin Supreme Court has just baked a worm into that pie.  This ruling, which gives the green light to a plan to misroute tax dollars into religious institutions, puts the Milwaukee schools plan on a direct collision course with the U.S. Constitution.  It runs counter to everything that the First Amendment stands for and we are confident that this ruling is not only improper and unwise, it is also unconstitutional and would not survive a test in the U.S. Supreme Court."

  Christopher Ahmuty, with the Wisconsin Civil Liberties Union, barked

  "[T]he Wisconsin court's decision is wrong, [i]t flies in the face of the clear meaning of our state and federal Constitutions."

  Steven Shapiro, of the American Civil Liberties Union, chirped,

  "Under the theory of this case, Wisconsin is now free to fund parochial school education on the same basis that it funds public school education.  That decision can only be upheld if 50 years of Supreme Court law and the Establishment Clause is reversed."

  The Wisconsin Supreme Court, however, got the better of the argument over these nay-sayers. The Wisconsin Court's grasp of two important considerations, legal and practical, gives its decision the sort of solidity and confirmability that leads this commentator to doubt that review in the Supreme Court of the United States would change the outcome.

  First, the Wisconsin Court simply relied on the trend of recent decisions of the United States Supreme Court regarding religion and the Constitution.  Fifteen years ago, the Nation's high court upheld a state statute granting tax deductions for the school-related expenses for parents of students in public, private and religious schools. (Mueller v. Allen).  Ten years ago, the Supreme Court threw off challenges to a federal program of funding for abstinence education raised by groups that worried that groups eligible to receive and use such funds included many that propounded the value of abstinence on the grounds of religious considerations.  (Bowen v. Kendrick).  And, just five years ago, the Supreme Court found no constitutional difficulty in compelling a school district to pay the expenses of a deaf interpreter for a student attending a parochial school.  (Zobrest v. Catalina Foothills School District).  At the same time, the Court rebuffed a New York school district's efforts to censor religious programs from its program of evening rentals of school facilities. (Lamb's Chapel v. Center Moriches Union Free School District).  Then, three years ago, the Court chastised Thomas Jefferson's university, the University of Virginia, for denying funding to an evangelical student group for its campus publication on a basis equal to the funding given to other student groups, including Jewish and Muslim student groups. (Rosenberger v. Rector and Visitors of the University of Virginia). Finally, in 1997, the Court directly overruled its own prior decision in a case involving federal funding of remedial instruction, and found no constitutional violation in a program that sends public school remedial teachers of math and reading into religious schools.  (New York v. Felton).

  Standing in the shadow of these decisions, the Wisconsin Court comfortably could predict that its reliance on a principle of law that runs through each of the foregoing decisions of the U.S. Supreme Court would stand its resolution of the voucher question in good stead.  That principle is one of "benevolent neutrality."  In other words, the United States Supreme Court has concluded that, where a government agency makes a program of benefits or incentives or funding generally available to some group, and where it does not condition receipt of benefits on adherence to, or rejection of, any religion, then there is no violation of the Establishment Clause if some benefits, incentives or funds flow to religious recipients.

  These U.S. Supreme Court decisions, and the principle of decision that they share, then illuminate the practical consideration that led the Wisconsin Supreme Court to its decision. As the Wisconsin Supreme Court noted, when a community funds the construction or maintenance of a highway, it is very likely that among those who benefit from the investment will be those attending churches, synagogues or other places of religious worship or instruction.  The State does not compel those who use public roads to attend religious services by its act of construction or maintenance.  And no constitutional violation can be found in the fact that some users of roads will be religious or do things religious.  In the same vein, the Wisconsin Court noted, if the State makes schooling vouchers available to parents, who are simply required to select the eligible school of their choice as the place to send their children, there is no Establishment of Religion that results from the decision of some parents to choose parochial or other religious school as the places for their children to learn.

  Of course, there is a sense in which nattering nabobs such as Steven Shapiro at the American Civil Liberties Union are quite correct:  the decision of the Wisconsin Supreme Court represents a sea change in lower court applications of U.S. Supreme Court decisions.  Too frequently, the actual effect of good decisions of the United States Supreme Court (rare as hen's teeth as such decisions are) is masked by recalcitrance among lower courts deciding follow-up cases.  The day to look forward to is the one in which sound and sensible decisions need not be pursued through costly appeals to supervising courts but can be obtained in the first instance from trial courts that are not driven by the agendas of  constitutional distortionists of the ilk of the ACLU and People for the American Way.

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