Closely watched voucher case could make way to Supreme Court

WASHINGTON, June 10 (JTA) — The debate over school vouchers, the controversial idea of giving families taxpayer dollars to use at private or parochial schools, has moved a step closer to an inevitable U.S. Supreme Court date. In a closely watched case, the Wisconsin Supreme Court ruled Wednesday that a school voucher program in Milwaukee is constitutional. The decision on Wisconsin’s program, one of only five such pilot programs around the country, marks the first time a state supreme court has ruled on the issue. It also marks the highest-level court decision to date on vouchers. Reaction was predictably mixed in the Jewish community, which remains deeply divided over school voucher initiatives, also known as “school choice.” Orthodox and politically conservative Jewish groups hailed it as a historic development in efforts to expand educational opportunities. Most other mainstream Jewish groups viewed it as a blow to public schools and the separation of church and state. Voucher opponents said the decision would likely be appealed to the U.S. Supreme Court. A Supreme Court ruling on vouchers, legal observers said, could have implications for a range of church-state questions, including the tax-exempt status of religious institutions, the permissibility of prayers at high school graduation ceremonies and the constitutionality of programs that allow churches to receive government money for anti-poverty programs. It has the potential to be “one of those monumental decisions that come along once in a generation,” said Marc Stern, a lawyer with the American Jewish Congress. The 4-2 ruling in Wisconsin, which overturned an appeals court decision, allows for the expansion of a program already in place in Milwaukee that lets economically disadvantaged children attend religious schools at taxpayer expense. Prior to the ruling, participation in the program was limited to fewer than 2,000 children attending non-religious private schools. But the court cleared the way for as many as 15,000 students to go to the private school of their choice, including religious schools, because it said the program did not violate the constitutional separation of church and state. The court said it upheld the program “because it has a secular purpose” and “it will not have the primary effect of advancing religion.” “This is a break in the dike,” said Marshall Breger, a law professor at Catholic University’s Columbia School of Law. “We’re now going to have a full-scale voucher program in Wisconsin, and we’ll be able to see what it looks like.” Breger, who also serves as vice chairman of the Jewish Policy Center, a think tank that promotes school choice, added that if the Supreme Court does take the case, “this is a very strong opinion from which to defend vouchers.” Stern, who opposes school vouchers, said that if the high court hears an appeal, it will be forced to address an issue it has dodged for some time — the extent to which the Constitution does or does not allow for special treatment of religion. The Supreme Court has given indications in recent years of its views on that question — most notably in a decision last year that allowed tax dollars to go toward remedial classes at religious schools — but it has yet to weigh in definitively on how it views the scope of church-state separation. “They really have to fish or cut bait here and face an issue they’ve been debating with themselves for a long time,” Stern said. Steve Freeman, director of legal affairs for the Anti-Defamation League, called the ruling “very disappointing, particularly in light of a number of other court decisions, which have struck down voucher plans,” including an earlier ruling in Wisconsin. “I think it’s a misreading of the Constitution,” Freeman said of this week’s decision. Voucher supporters, meanwhile, said they hoped that the Wisconsin ruling would breathe new life into efforts to create voucher programs in other states and even at the national level. “The momentum is building,” said Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs. “It’s a long road but we’re committed to it, and the law is on our side and ultimately most people are on our side.”