Reconsidering the Constitutionality of Vouchers.

In Vouchers as School Choice: An Analysis of Jackson v. Benson: The Milwaukee Parental Choice Program,1 Elizabeth T. Lugg and R. Andrew Lugg criticize the Wisconsin Supreme Court for misreading U.S. Supreme Court's precedent and wrongly ruling that the amended Milwaukee Parental Choice Program (MPCP) does not violate the Establishment Clause of the First Amendment.2 The MPCP was enacted in March 1990 to allow low-income children in the Milwaukee Public Schools (MPS) to attend any nonsectarian private school in the city.3 The program was capped at not more than one percent of MPS enrollment or about 1,000 students. The program was slow to reach its cap, primarily because the supply of available nonsectarian private schools was low. In 1994-95 only twelve nonsectarian private schools within the boundaries of the MSP chose to participate. Under pressure from Republican Governor Tommy Thompson to expand the range of choices and raise the cap, the legislature in 1995 eliminated the provision barring participation by religious private schools and raised the maximum number of eligible participants to fifteen percent of the MSP enrollment. The Wisconsin Supreme Court ruled favorably on both the original MPCP4 and the amended MPCP.5 The Lugg and Lugg article focuses on the second of these decisions. Lugg and Lugg view the U.S. Supreme Court's 1973 ruling in Committee for Public Education and Religious Liberty v. Nyquist6 as central to their conclusion that the Wisconsin Supreme Court erred. Their assertion does not withstand careful scrutiny. Without making any judgment about the wisdom of its doing so or about the merits of vouchers, I believe a majority of the present justices on the U.S. Supreme Court is poised to uphold a publicly funded voucher program and would have done so had the Court seen fit to take the Milwaukee case in 1998.(7) In this Counterpoint, I discuss why I believe this to be so. I focus my attention on the latter portion of the Lugg and Lugg article, which discusses U.S. Supreme Court precedents in the context of the Wisconsin Supreme Court ruling. In Nyquist, the Court was confronted with a New York statute that provided three types of aid to private elementary and secondary schools: direct grants for maintenance and repair of facilities at private schools serving a high percentage of low income students, a small tuition grant program for low-income parents, and a tuition tax deduction program for parents who did not qualify for the tuition grant program. By a 6-to-3 vote the Court declared that all three components violated the Establishment Clause. The problem was not that the programs lacked a secular purpose under the first of the three-part Lemon tests but that they advanced religion in violation of the second part. The maintenance and repair grants advanced religion because they were not restricted to non-sectarian purposes. Thus the majority noted that these grants could be used to renovate classrooms in which religion was taught and even to pay the salaries of employees to maintain religious buildings. Similarily, the tuition grants were not restricted to secular purposes but could be used to further the religious mission of the private school. The grants could only be used at private schools, the vast majority of which were Catholic. Justice Lewis F. Powell wrote for the majority: [I]f the grants are offered as an incentive to parents to send their children to sectarian schools by making unrestricted cash payments to them, the Establishment Clause is violated whether or not the actual dollars given eventually find their way into the sectarian institutions. Whether the grant is labeled a reimbursement, a reward, or a subsidy, its substantive impact is still the same.9 The Court viewed the tax deduction scheme as having little substantive difference from the tuition grant program. Thus, it too violated the Establishment Clause. While the majority in Nyquist did not consider it necessary to consider the excessive entanglement part of the Lemon test, it commented in dicta about potential political divisiveness that aid to religious private schools could create: [A]part from any specific entanglement of the State in particular religious programs, assistance of the sort here involved carries grave potential for entanglement in the broader sense of continuing political strife over aid to religion. …