Justices allow student vouchers Using public funds to pay private tuition is permitted for now


WASHINGTON -- With the Supreme Court opting not to get involved, states and cities gained temporary permission yesterday to use public money to pay parochial school tuition for low-income children.

A "school voucher" program, now in its third year for religious schools in Milwaukee, withstood a constitutional challenge as only one justice, Stephen G. Breyer, voted to hear the closely watched case.

As a result, Milwaukee and any other cities are free for the time being to use public subsidies to benefit parochial education, with no restriction on how the money may be used. The Supreme Court, though, may revisit the issue because the voucher issue is being tested in courts in five other states.

Parents, taxpayers, teachers and clergy in Milwaukee, joined by the NAACP, argued in their unsuccessful challenge that the program promotes religion because the money can be used to pay staff members working directly on the schools' religious mission, pay for religious literature, or finance the upkeep of facilities used for religion.

As a result of yesterday's brief court order denying review of the Milwaukee case, there will be no interruption of the program, in which 5,825 pupils from poor families use a tuition subsidy to attend 87 private schools. About 4,000 students in the program are attending 57 schools run by churches and synagogues; the 30 other schools are nonreligious.

In the current school year, the Milwaukee program could cost up to $70 million in state aid.

The program is gaining imitators around the country, and Congress has sought to create a similar program in the District of Columbia. But President Clinton vetoed that effort earlier this year.

Although the Supreme Court did not address the constitutionality of the program, the Wisconsin case had appeared -- to both sides -- to be nearly an ideal case for putting that question before the court. And both sides, along with the National School Boards Association, had urged the justices to step in and settle the question.

The issue could return to the court, because the issue is being tested in courts in Arizona, Maine, Ohio, Pennsylvania and Vermont. If one or more of those cases leads to a lower court decision against the parochial tuition subsidy, the Supreme Court would probably be more inclined to take on the issue in the future.

Without a final ruling by the Supreme Court, schools are free in the meantime to continue or to start parochial voucher programs, taking a chance that the funding will survive future court tests.

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.

Opponents cautioned against reading anything into the Supreme Court action yesterday.

"The legislatures in other states should not rely on the Supreme Court action as a green light for voucher," said Anne L. Bryant, executive director of the National School Boards Association. The court's action, she said, "is not a win, or loss; it is a legal draw."

But Clint Bolick, litigation director for the Institute for Justice, which has defended what it calls "school choice" programs in Wisconsin and in the five other states, said the Supreme Court order "leaves intact the most definitive court decision to date" -- xTC a Wisconsin Supreme Court ruling in June that "solidly supports the constitutionality of school choice."

The Wisconsin program, its opponents contend, runs afoul of a 1973 Supreme Court ruling that struck down New York state's tuition reimbursement for parents of children attending parochial schools.

Though some justices of the current Supreme Court are likely to share that view, they probably lack the five votes needed for the court to reaffirm the 1973 ruling, and thus did not vote to take the risk.

Other justices more favorable toward public support of religious activity may want to reconsider the earlier decision. But they could achieve something of the same result -- at least for Milwaukee -- by simply voting to deny a review of that case.

The court did not disclose how the justices voted. It takes the votes of four to hear a case, and only Breyer announced his vote in favor of hearing the school voucher case.

The Wisconsin court, in upholding the Milwaukee program, said that the tuition reimbursement struck down by the Supreme Court 25 years ago was significantly different from the school voucher program at issue now.

The Milwaukee program, begun in 1993 as a tuition aid program for private schools in general but not for parochial schools, was changed in 1995 to include parochial schools.

The tuition aid is equal to state aid for each student in the Milwaukee public schools. That figure is now about $3,600 per pupil -- in many cases, more than enough to pay the full tuition at parochial schools.

Upholding the benefits, the state supreme court said the program does not involve unconstitutional support of religion. "A student qualifies for benefits not because he or she is a Catholic, a Jew, a Muslim or an atheist," that court said. "It is because he or she is from a poor family and is a student in the embattled Milwaukee public schools."

Under Wisconsin state law, public school officials in Milwaukee have authority to increase property taxes to recoup the money that would go to public schools but that is diverted to private schools when students opt for the voucher program.

The city school board is considering a proposed voucher tax to cover the program's cost, according to the Wisconsin affiliate of the National Education Association.

Pub Date: 11/10/98

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