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Partial victories

National | But legal action on vouchers keeps school choice in doubt

Issue: "Armey’s flight of faith," Aug. 31, 1996

Coming on the heels of a victory for school vouchers in Cleveland, Ohio, a partial win in Wisconsin means that some low-income children readying for the new school year will get to attend classes at the schools of their choice. A state-level trial judge in Madison ruled last week that Milwaukee's six-year-old vouchers experiment could be expanded, but only to non-religious private schools. Dale County Circuit Judge Paul Higginbotham partially lifted a Wisconsin Supreme Court injunction and allowed the program to expand from 1,115 students to as many as 15,000. But those students must go to non-sectarian schools if they want state help with their tuition.

Wisconsin Gov. Tommy Thompson, a school choice advocate, pledged to continue the fight to the U.S. Supreme Court. Meanwhile, an Ohio appeals court judge refused last week, in a terse, one-sentence order, to grant an injuction stopping the Cleveland vouchers program from being implemented this school year.

The Washington-based Institute for Justice represented Milwaukee parents. "We came away with more than we went in with," said the group's William Mellor. "This wasn't a complete victory, but we knew all along we're heading to the Supreme Court. This is the first step on a long trip."

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Mr. Mellor says it's a horserace between the Cleveland choice plan and the Milwaukee program, but one of the two will end up before the nation's high court, possibly as soon as the fall of 1998. Both cases are inherently sound, he says. "They're both well-written laws, and I don't think either suffers from any particular infirmity that sets it apart," he said. "We're confident enough of both to take either one before the court."

The Milwaukee program has had a roller-coaster history. In 1989, with Gov. Thompson's support, the state legislature passed the first vouchers law, which would have allowed up to 930 low-income students (1 percent of the Milwaukee public school enrollment) to attend the private, non-religious school of their choice.

At the start of the 1990-91 school year, 341 students took seats in classrooms at seven private schools. The program's cost for that year was $733,800. Public school teachers' unions sued, but the program grew to 521 students and $1.3 million for the 1991-92 school year.

In 1993, the Wisconsin Supreme Court ruled that vouchers were constitutional, so an emboldened legislature added religious schools to the mix. Teachers' unions and the American Civil Liberties Union filed suit again, and this time the state Supreme Court deadlocked 3-3 over the constitutionality of the program. In March 1996 the case was bumped back down to Judge Higginbotham, with an injunction attached that kept funds from flowing to religous schools.

Meanwhile, disappointed parents who enrolled their children in religious schools are seeing Wisconsin citizens rally to their aid: A group called Partners for Advancing Values in Education hopes to raise $2.5 million before school starts to help those low-income students who were left hanging by the judge.

The next stop for this case is the state court of appeals.

Also, Institute for Justice lawyers say they'll file suit soon in Vermont over an ad hoc vouchers program. For years in rural parts of that state, towns without enough students for a public high school have allowed parents to send their teenagers to private--and since 1994, even religious--schools, at taxpayer expense (capped at the average per capita cost of public school education). More than 90 towns currently do so.

Controversy arose when parent Blane Nasveschuk in Rutland Town asked the town's school board to pay for his son's tuition to nearby Mt. St. Joseph's Academy. The neighboring Chittenden Town school board pays for several of its students to attend there, but Rutland Town refused, saying it would violate the U.S. Constitution.

With the can of worms now fully open, the state's Department of Education is threatening to cut off education funds to Chittenden Town unless it also refuses to pay tuition to Mt. St. Joseph's. The practice of allowing full choice, which includes religous schools, has already been upheld in the Vermont Supreme Court.

The Institute for Justice is representing Dr. Nasveschuk and Chittenden Town.

"Chittenden isn't backing down," said Dick Komer, an Institute for Justice attorney. "My feel of the school board members is that they'll stay with it. They view this as a matter of fairness to the townspeople. They see it as unfair that they pay tuition for everybody else in the town, except for those who choose to send their children to religious schools. But they stand to lose a lot of money; the state provides $107,000, or one-tenth of their school budget."

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