Blank Check?
Ken Byrd January/February 1999 The Wisconsin Supreme Court recently approved the participation of religious schools in Milwaukee's Parental Choice Program, which provides low-income parents with a $4,900 voucher for children to attend a private or parochial school.The highly criticized decision raises a number of important questions regarding the flow of tax dollars to religious schools. Can religious schools that are not equipped to handle the disabled refuse to accept the disabled in the voucher program? Are same-sex private schools--discriminating on the basis of sex--eligible for government funds? Do religious schools have to change their punishment policies? Can they expel voucher students for disciplinary reasons without a fair hearing? Can private and parochial schools administer entrance exams to voucher students and refuse those who don't meet the academic standards?
These are question that need answers in a case that could reach the U.S. Supreme Court and, if so, possibly change the landscape of religious freedom in the entire nation.
To begin, a key issue when tax money goes to a religious institution deals with the government regulation that inevitably follows government money. Progressive religious and civil liberties groups argue that the way to prevent burdensome regulation of religious schools is for those schools to refuse government funds. Conservative religious groups, who have long endorsed vouchers, argue that religious schools should be able have government funds and no new regulations.
One such confrontation was thwarted in Milwaukee, at least temporarily, when--conceding to the demands of religious schools and state lawmakers--officials at the Wisconsin Department of Public Instruction (DPI) withdrew their ban on same-sex private schools entering the program. Otherwise six Milwaukee all-boy and all-girl private schools would have been barred. The DPI had previously contended that schools accepting public funds could not discriminate on the basis of sex.
Relying on previous court decisions, the agency demanded that participating schools sign an agreement outlining certain students' rights. The agreement also said that schools would be barred from discriminating on the basis of race, religion, gender, or disabilities. But a week after the Wisconsin state superintendent had informed private schools that they would have to follow the students' rights policy, DPI officials simply notified the schools that federal rules should apply to any school accepting public funds. They did not require them to sign a statement accepting those rules. Wisconsin officials predict that a court test will be necessary to determine whether the regulations must follow the vouchers.
"Once you decide to use public funds," said Milwaukee School Board member Sandra Small, "you have to play by those rules. Period."
Several choice school supporters argue that the participating schools should not have to be governed by rules that apply to public schools because vouchers are given to a parent, not to the school. Officials from some of the private schools have said that the regulations would, indeed, interfere with the mission and function of the schools.
"We adhere to the Catholic doctrine," said Carolyn Ettlie, principal of St. Barnabas/Holy Spirit School in Milwaukee. "We teach the Catholic religion. I will certainly sit down and be straightforward with a parent. I'm not going to turn anyone away."
Ettlie said, "They will have to understand. We cannot serve certain children." She added that the school is "not equipped to handle" students with severe mental or physical disabilities or learning disabled students.
Ettlie has a ready solution to the school choice policy that allows students to opt out of religious functions. "If they don't feel comfortable here, they shouldn't come here. If a child chooses not to pray, they do not have to pray. But they are not going to leave the room while we pray. We don't have special places for them to be."
John Norris, superintendent of schools for the Archdiocese of Milwaukee, said, "No one here is pro-discrimination. The debate is What kind of schools are we talking about? Are they private schools or public schools?"
Another impact of DPI's last-minute decision to remove certain nondiscrimination requirements is that private and religious schools will not have to fully accommodate disabled children. Although unable to bar the disabled from attending, they will not be required to make special accommodations.
"We think parents and taxpayers deserve to know whether or not the school will accept and serve all of the students or some of the students," said Chris Ahmuty, executive director of the American Civil Liberties Union of Wisconsin. "Is it a parental choice or do the schools choose?" asked Ahmuty, whose organization was one of several that filed the suit against the extended school choice program.
Ahmuty said abiding by nondiscrimination laws was not an issue until the choice program was extended to parochial schools. "Nonsectarian schools readily gave assurances that they would comply with the nondiscrimination laws and other students' rights protections."
He said it was unfortunate that the DPI agency withdrew the regulatory requirements in the face of "intense pressure from pro-(school)choice groups and some legislators."
Ahmuty said it would be wrong for religious school officials to require children to attend religious services and to remain in classrooms during prayers that they do not want to hear.
"That's contrary to the intention, spirit, and letter of the law," Ahmuty said. "They really have to have a reasonable non-stigmatizing alternative to make the opt-out mechanism meaningful," he said. If schools are going to advise prospective students that if they don't like it, they don't have to come, "the only people that would go there are likely to be of that denomination. So then you have to wonder who's benefitting from the program? Choice parents or the school?"
Critics also point out that in many cases the $4,900 voucher is greater than the tuition charged by the private or parochial school.
"In many instances the aid is greater than the amount of tuition charged to attend the private school," Ahmuty said. "You can't say the parents are the only ones benefitting from this. The schools are also benefitting. And we're doing that at the expense of religious liberty. This violates individual conscience. It compels people to support religions they may not agree with. It also tends to undermine religious education."
It is unsure what strings will be tied to religious schools, Ahmuty said, noting that he is concerned about the constitutional ramifications of government interfering in religious institutions as well. "However, it seems to me the rules of the game change significantly when these institutions are accepting tens of millions of tax dollars. If they don't want to abide by a bare minimum of regulation, they shouldn't participate in the program. . . . Some of those schools want a blank check to do whatever, without any accountability to the parents or taxpayers."
After voucher programs faced legal setbacks in recent years in Maine, Ohio, Puerto Rico, and Vermont, the June 10 Wisconsin ruling is the first major legal victory for voucher advocates. The 4-2 decision declared that the Milwaukee Parental Choice Program (MPCP)--extended to include religious schools--does not violate either the U.S. Constitution's First Amendment or the Wisconsin Constitution's provisions forbidding public benefits for religious schools.
Milwaukee started the program in 1990 after state lawmakers approved a limited program to address the city's troubled public schools. The original program permitted up to 1,500 (1.5 percent) public school students from poor families to attend private nonsectarian schools. Over the years the schools participating grew to roughly 23. However, in 1995 the legislature expanded the MPCP by allowing religious schools to participate and by increasing to 15,000 (15 percent) the number of Milwaukee public school students who could be eligible.
Under the voucher initiative city officials send a check to a private or parochial school chosen by a parent, who then must endorse the check over to the school.
The expansion was challenged by individuals and such groups as Americans United for Separation of Church and State, People for the American Way, the American Civil Liberties Union, and the National Association for the Advancement of Colored People.
Dane County Judge Paul Higginbotham and a state appeals court panel ruled that expanding the program to religious schools violated the state constitution. Higginbotham said that "it can hardly be said that this does not constitute direct aid to the sectarian schools. Although the U.S. Supreme Court has chosen to turn its head and ignore the real impact of such aid, this court refuses to accept that myth."
The Wisconsin Supreme Court, however, ruled the voucher program constitutional, stating that the program "has a secular purpose, it will not have the primary effect of advancing religion, and it will not lead to excessive entanglement between the state and participating sectarian private schools." It "places on equal footing options of public and private school choice and vests in the hands of parents to choose where to direct the funds allocated for their children's benefit."
Justice Donald Steinmetz, writing for the majority, said the state money would pay only for services of instructing students previously enrolled in public schools and therefore it should not be considered a benefit. "Only actual increased cost to such schools occasioned by the attendance of beneficiaries is to be reimbursed," Steinmetz wrote. "They are not enriched by the service they render. Mere reimbursement is not aid."
Not everyone agrees with the decision or the rationale behind it.
"The state is giving millions of dollars to private religious schools," said Barry Lynn, executive director of Americans United for Separation of Church and State. "Even worse, in over half the schools the $5,000 in voucher aid more than covers tuition, so additional hundreds or even thousands of public dollars can go to purchase Bibles, erect crucifixes and pay teacher salaries. Contrary to the Wisconsin court's interpretation, this is certainly a benefit to the religious schools," he said.
He has a point. At least one religious school is seeing record enrollment since the state court ruling. When doors opened August 31, Messmer High, a Catholic school, experienced a first in its 72-year history--a waiting list. Bob Smith, president of Messmer, had told the state from the beginning that "we're not going to change our religiosity and we're not going to change the way we do things." Smith said that, after the ruling, 165 of the 366 students enrolled in the school are using vouchers. The school is filled to capacity and more than 30 students are on a waiting list. While the school charges only $2,800 in tuition, the government will pay at least $4,850 per voucher student--the amount the school said is the actual cost of educating a child.
Messmer High requires students to take four years of religion and attend an annual class retreat (one class focuses on prayer and on getting close to God). The school also begins each day with intercom prayer and allocates two time periods a week for organized prayer. Messmer teaches about abortion from the Catholic perspective and does not teach about contraception.
Smith said, "It is not real heavy proselytizing, but it is an attempt to give children an introduction to God." Students of other faiths have attended the school in previous years and have not complained about the religious programs or refused to participate in them, he said.
"The myth is that there are people being manipulated, coerced, or forced. They're making an informed choice to choose an academic program and a religious program," Smith said. He added that if a voucher student refused to participate in the activities, he would counsel the student that the activities are not bad things and do not disrespect other religions.
Smith said he would tell a child in a wheelchair who needed special assistance eating food, as well as a curriculum teaching basic motor skills, that "it would not be in your best interest to be at Messmer."
At Messmer, students who attended public schools in the previous year are not the only ones benefitting from vouchers. Smith acknowledged that several voucher students actually attended Messmer last year even though the program was intended for students coming from the public system. He said the students are eligible because they had originally qualified and registered for the voucher program in 1995.
The main point in the debate over allowing children to use vouchers at religious schools is that "government money does not belong to the government. It belongs to the populace and they're the ones deciding," Smith said.
Maybe. The case has been appealed to the U.S. Supreme Court. Nine justices might determine, among other things, if there is a difference between the government writing a check to a private school and a parent endorsing a government check to one of 86 schools, most of which are religious. However the Court decides (as of this writing it has not yet granted cert.), it will have ramifications that go far beyond Milwaukee.
Ken Byrd is U.S. congressional correspondent for the Baptist News Service of the Baptist Joint Committee.