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Religious school aid upheld by Wis. court State funds for tuition allowed; case bound for Supreme Court


WASHINGTON -- In a precedent-setting case bound for the U.S. Supreme Court, the Wisconsin Supreme Court upheld yesterday the use of public money to pay for parochial school tuition for low-income children.

The decision came in a closely watched Milwaukee school-voucher case. Advocates of parental choice in education have pushed the case in hopes of achieving a landmark Supreme Court endorsement of a taxpayer-financed private alternative to public schools.

The Wisconsin court divided 4-2 in upholding the school-aid law, saying it did not violate the constitutionally required separation of church and state because its purpose was not religious. The state court declared:

"A student qualifies for benefits . . . not because he or she is a Catholic, a Jew, a Moslem, or an atheist; it is because he or she is from a poor family and is a student in the embattled Milwaukee public schools."

Constitutional disputes similar to the one in Wisconsin are awaiting rulings in four other state supreme courts: in Arizona, Maine, Ohio and Vermont.

The outcome in the U.S. Supreme Court is expected to affect a variety of other proposals -- in Congress and state legislatures -- for public aid to religious institutions. President Clinton recently vetoed the first federal bill that would have allowed tax dollars to subsidize "vouchers" for low-income District of Columbia students to attend parochial and other private schools.

Supporters of the Wisconsin law applauded the state court's ruling.

"For us to win the first truly big court battle over school choice is a huge morale booster," said Clint Bolick, litigation director for the Institute for Justice, a conservative legal advocacy group. Bolick successfully argued the case in the Wisconsin court, and his group is involved in the four other pending cases.

Bolick said that promoters of the Milwaukee aid program, though satisfied that the state court "got it right," will join in urging the Supreme Court to hear an appeal because "the constitutional cloud will not be ultimately removed until there is a Supreme Court decision."

Another supporter of the program, Gary Bauer, president of the conservative Family Research Council, said the ruling "dispels the disinformation spread by opponents. Parental choice in education is unquestionably constitutional."

People for the American Way, a liberal advocacy group and one of the challengers to the Milwaukee plan, said it will appeal. Carole Shields, president of the People for the American Way Foundation, called the ruling "a renegade decision that threatens to take a stick of dynamite" to the wall separating church and government.

The Milwaukee Teachers' Education Association also said it will appeal, as will the National Association for the Advancement of Colored People, another challenger.

Another critic of the Wisconsin ruling, Marc D. Stern, a lawyer for the American Jewish Congress, said "this case presents the acid test" of how far government may go to provide "a big subsidy" to religious schools.

In Maryland, proposals for a pilot program of tuition vouchers at private schools in Baltimore were offered in the General Assembly for several years but were defeated each time in committee. The idea has not resurfaced in the past few years.

In 1996, Gov. Parris N. Glendening faced a letter-writing campaign by Roman Catholic parents asking for public aid to their children's schools. Glendening responded that the state's budget could not handle "the major new aid programs you have requested."

In yesterday's decision, the Wisconsin Supreme Court relied on recent U.S. Supreme Court rulings that appeared to lower constitutional barriers to public aid for religious groups. The state court said the Milwaukee program neither promotes religion nor is it hostile to it, but rather finances an "opportunity for increased learning by those currently having the greatest difficulty with educational achievement."

The decision freed parents of Milwaukee students who now attend or want to attend parochial schools to begin benefiting from the voucher program. The program will channel up to $75 million in state money from public to private schools.

Adopted in 1989 as a system of tuition aid for private education, the program initially barred religious schools from participating. In 1995, the program was extended to parochial students. Of the 122 Milwaukee private schools that now qualify for taxpayer-financed tuition, 89 are parochial schools.

Up to 15 percent of all the students attending the Milwaukee public schools are eligible to use the vouchers to pay tuition at private school. The money is paid from a check issued by the state that the parents must endorse.

"The program does not require a single student to attend class at a sectarian private school," the state court majority said. "A qualifying student only attends a sectarian private school under the program if the student's parents so choose."

The state court rejected a claim by the NAACP that the program is unconstitutional because it will increase racial segregation in the public schools -- already about 75 percent black -- because more poor white students than poor blacks will leave the public schools.

The state court said the NAACP had offered no evidence to prove that the Milwaukee plan had been adopted with the intent to discriminate based on race. Under the Constitution, racial segregation is invalid only if it was intentional.

Pub Date: 6/11/98

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