OLR Research Report

October 10, 2003 98-R-0821

FROM: Judith S. Lohman, Principal Analyst

RE: Wisconsin Supreme Court School Voucher Decision You asked for a summary of the Wisconsin Supreme Court's decision upholding the constitutionality of the participation of religious schools in the Milwaukee Public Choice Program (MPCP).


In 1995 the Wisconsin legislature made several changes in its school voucher program for students in the Milwaukee public school system. The program allows low-income Milwaukee children to choose to attend any public school in the district or to use state vouchers to attend private schools. The 1995 amendment allowed students to use their state vouchers to attend private religious school if they wish. The amendment also required the schools to excuse participating students from religious instruction and exercises at their parents' request.

The inclusion of religious schools in the voucher program was challenged on state and federal constitutional grounds by several groups. In response to the challenge, a state circuit court issued an injunction against the law's implementation, ruling that the inclusion of religious schools in the MPCP violated a Wisconsin constitutional ban against state money being used to benefit “religious seminaries.” The initial ruling and the injunction were upheld by the state appeals court. But on June 10, 1998, the state Supreme Court ruled the 1995 law valid and reversed the lower courts.

The state Supreme Court found that the 1aw did not violate state and federal constitutional bans against the establishment of religion, that it did not violate the equal protection clauses of the state and federal constitutions, and that it was valid despite the plaintiffs' claims that it violated several other provisions of the Wisconsin state constitution. The plaintiffs' other state constitutional claims, all of which the court rejected, were (1) that the law violated a ban on compelled support for religion, (2) that, because it was limited to Milwaukee, it was a local or private bill and, consequently the legislature did not follow the proper procedure in passing it; (3) that because the legislature passed it as part of a larger bill, it violated a requirement that bills deal only with one subject; (3) that the participation of private religious schools in the MPCP violated a requirement that the state provide uniform and free district schools to all children and that there be no sectarian instruction in those schools; and (4) the law violated a requirement that all public money be spent only for public purposes.


Milwaukee Public Choice Program

The MPCP allows up to 15% of the students in the Milwaukee public school system to attend private schools with state assistance (vouchers). The voucher amount equals the lesser of the per-student state aid to the Milwaukee public schools or the private school's education-related, per-pupil operating and debt service cost. The program requires the state to pay the amount to the participating student's parent or guardian, who must restrictively endorse the funds over to the private school. It allows private religious schools to participate only if they agree to allow students attending under the MPCP to be excused from all religious instruction at their parents' request.

Jackson v. Benson

The challenge to the law, a case known as Jackson v. Benson, arose when several plaintiffs, including the Milwaukee public school teachers' and administrators' unions, People for the American Way, and the National Association for the Advancement of Colored People (NAACP), sued to stop implementation of the 1995 amendments to the Milwaukee school voucher program because they allowed private religious schools to participate. The plaintiffs were initially successful, winning summary judgements from two lower state courts. The lower courts found that the 1995 law violated the Wisconsin state constitutional ban on payments from the state treasury for the benefit of religious seminaries. The lower courts did not decide the plaintiffs' claims that the law violated the federal and state constitutional bans against the establishment of religion.

These lower court decisions were reversed by the Wisconsin Supreme Court in a decision on June 10, 1998. The high court decision rejected all the plaintiffs' federal and state constitutional claims against the law.


The plaintiffs argued that the 1995 law violated the U.S. Constitution's Establishment Clause, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Establishment Clause applies to the states by virtue of the Fourteenth Amendment. Thus, states are prohibited from passing laws that have either the purpose or effect of advancing or inhibiting religion.

In deciding whether the MPCP violated the Establishment Clause, the Wisconsin court used a three-part test set out by the U.S. Supreme Court in the case of Lemon v. Kurtzman, 403 U.S. 602. Under the Lemon test, a law does not violate the Establishment Clause if (1) it has a secular legislative purpose, (2) its primary effect neither advances nor inhibits religion, and (3) it does not create an excessive entanglement between government and religion.

Secular Purpose

The court found that the purpose of the MPCP is to provide low-income parents with an opportunity to have their children educated outside the Milwaukee public school system. It found that this purpose meets the secular purpose requirements of Lemon because the state's goal of providing educational opportunities for poor children in Wisconsin is “without question” proper.

Primary Effect of Advancing Religion

According to the Wisconsin court, in a chain of cases, the U.S. Supreme Court has found that state education programs do not have the primary effect of advancing religion if they provide aid to both sectarian and nonsectarian institutions (1) using neutral, secular criteria and (2) only as a result of the private choices of individual parents. The court determined the 1995 law meets the neutrality standard because it makes aid available to both religious and secular beneficiaries on a nondiscriminatory basis. Under the MPCP, participants receive the same share of per-pupil public aid regardless of the school they choose. Because it uses secular and neutral criteria, the program neither leads to religious indoctrination nor creates a financial incentive to choose sectarian education.

Likewise, the court ruled the program meets the requirement that aid be indirect because, under its provisions, state aid goes to religious schools only because of parents' private choices. Although the state sends checks directly to private schools and requires parents to endorse them to the schools, the court concluded that important fact is not the path of the funds, but who chooses the path. Under the MPCP, it is the parent.

Excessive Government Entanglement

The court found that the MPCP does not create an excessive entanglement between the state of Wisconsin and religion because, although the program subjects private schools to certain performance, auditing, and reporting requirements and to nondiscrimination and health and safety rules, it does not involve the state in any way in their governance, curricula, or day-to-day operations.


The plaintiffs in the case also made several state constitutional arguments against the law that the court rejected.

State Establishment Clause

The Wisconsin Constitution bars the state from drawing any money from its treasury “for the benefit of religious societies, or religious or theological seminaries.” The court characterized this provision as the state's Establishment Clause.

As it did with the federal claim, the court found that the MPCP does not have the primary effect of advancing religion and that, because of this fact, it cannot be said to be operating for the benefit of religious institutions. The decision on this point rests on earlier decisions by the same court that public funds can be placed at the disposal of third parties as long as (1) the program is neutral between sectarian and nonsectarian alternatives, (2) transmission of the money is guided by independent parties, and (3) steps are taken not to subsidize religious functions.

Compelled Support Clause

The plaintiffs also argued that the program violated the clause of the state constitution that prohibits compelling anyone to “attend, erect or support any place of worship, or to maintain any ministry without consent . . . .” The court disallowed this argument as identical to the benefit argument, finding that the MPCP (1) does not require a single student to attend a private religious school and (2) even if he does attend such a school, the student cannot be required to attend the religious activities it offers.

Private or Local Bill

The Wisconsin constitution states: “No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.” In deciding whether the 1995 law violated this provision, the court considered (1) the process by which the bill was enacted and (2) whether the bill is private or local.

Regarding the first point, the court found no evidence that the 1995 bill was “smuggled or logrolled though the legislature.” Even though the law was ultimately enacted as part of a multi-subject bill, the MPCP amendments were adequately considered and discussed on their own merits. On the second point, the court found that the 1995 law was not a private or local bill. Even though it applied to a limited geographical area, the court had previously found that such distinctions are permissible when a program is experimental. The court determined that the amended version of the MPCP retained its original experimental character because (1) it limits participation to 15% of the affected students and (2) it has data collection and reporting requirements. Thus, the court found, it “is experimental legislation intended to address a perceived problem in the quality of education and education opportunities” in the state. In this context, its geographical limitations do not make it a private bill.

Uniformity Clause

The Wisconsin constitution requires the state to provide uniform and free district schools to all children and states that “no sectarian instruction shall be allowed therein.” The court rejected the proposition that appropriating public money to private schools transforms them into district schools. The existence of the MPCP does not deprive any student of the opportunity to attend a public school with a uniform character of education and the continued existence of the public schools means that the legislature has fulfilled it constitutional duty to provide them.

Public Purpose Doctrine

The court states that the Public Purpose Doctrine, though not an express constitutional provision in Wisconsin, is nevertheless well established in the state. In essence, the doctrine requires that public funds be expended only for public purposes. The court found that the 1995 law does not contravene this principle. “No party disputes that education is a valid public purpose, or that private schools may be employed to further that purpose.” The only issue, the court said, is whether the MPCP includes sufficient control and accountability to reasonably secure the public purpose to which it is directed.

The court found that it did because (1) participating schools remain subject to state instruction, curriculum, and attendance regulations governing all private schools; (2) schools are subject to an annual audit and to performance and financial evaluations by the state school superintendent; and (3) parents can remove their children from any school that does not meet their expectations. The court explicitly rejected the lower court's holding that, because it sends public funds to private schools, the program does not serve a public purpose.


The last argument the court rejected was a claim by the Wisconsin NAACP that the MPCP violates the Equal Protection clauses of the U.S. and Wisconsin constitutions. The NAACP argued that the program's effect is to increase the racial segregation of the Milwaukee public schools. Its argument was based on the racial makeup of the Milwaukee public school system and of the private schools likely to participate in the MPCP.

The court found that, to prevail on this claim, the plaintiff must show that the law was enacted with the purpose or intent to discriminate on the basis of race. The NAACP did not allege any such purpose or intent. Nor did it allege that the participating private schools excluded students on the basis of race or in any other way intentionally discriminated against them on such grounds. In addition, the court found that the NAACP's proffered facts did not show that the program had either a disproportionate effect on one race or that it was applied in a way that invidiously discriminated on the basis of race. Thus, it dismissed the equal protection claims for failure to state a claim upon which relief could be granted.