Jackson v. Benson
578 N.W.2d 602, 218 Wis. 2d 835, 1998 Wisc. LEXIS 70 (1998)
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Rule of Law:
A state program providing educational aid to a broad class of citizens defined by neutral, secular criteria does not violate the Establishment Clause even if sectarian institutions receive an attenuated financial benefit, so long as the aid reaches those institutions only through the genuine and independent private choices of the aid recipients.
Facts:
- In 1989, the Wisconsin legislature enacted the original Milwaukee Parental Choice Program (MPCP) for low-income students in Milwaukee.
- The original program was limited to allowing students to attend private nonsectarian schools only.
- In 1995, the legislature amended the program, removing the limitation that participating schools be 'nonsectarian,' thereby allowing religious schools to participate.
- The amendments increased the program's enrollment cap from 1.5 percent to 15 percent of the Milwaukee Public Schools student body.
- The payment method was changed so the State would issue checks payable to the students' parents or guardians.
- Parents or guardians were then required to restrictively endorse the checks for use by the private school of their choice.
- An 'opt-out' provision was added, prohibiting participating schools from requiring a student to participate in any religious activity if their parent or guardian submits a written request for an exemption.
Procedural Posture:
- Warner Jackson, et al. and the Milwaukee Teachers Education Association, et al. filed separate lawsuits in the Dane County Circuit Court, challenging the constitutionality of the amended MPCP.
- The NAACP filed a third lawsuit, and the three cases were consolidated in the circuit court.
- The State filed a petition with the Wisconsin Supreme Court to commence an original action, which the court accepted.
- The Wisconsin Supreme Court split three-to-three, dismissed the petition, and remanded the case to the circuit court for further proceedings.
- On remand, the circuit court granted summary judgment to the plaintiffs, holding that the amended MPCP was unconstitutional under the Wisconsin Constitution.
- The State (appellant) appealed the circuit court's decision to the Wisconsin Court of Appeals.
- The Wisconsin Court of Appeals affirmed the circuit court's judgment, finding the program violated the state constitution's prohibition on state funding for the benefit of religious institutions.
- The State (appellant) petitioned the Wisconsin Supreme Court for review of the court of appeals' decision.
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Issue:
Does the amended Milwaukee Parental Choice Program, which allows state funds to be used for tuition at private sectarian schools, violate the Establishment Clause of the First Amendment to the United States Constitution?
Opinions:
Majority - Steinmetz, J.
No, the amended Milwaukee Parental Choice Program does not violate the Establishment Clause. A statute survives an Establishment Clause challenge if it meets the three-pronged test from Lemon v. Kurtzman. First, the amended MPCP has a clear secular purpose: providing educational opportunities for children from low-income families. Second, its principal or primary effect does not advance religion because it provides a neutral benefit to a class of citizens defined by secular criteria (income and residency), not religion. Any aid that flows to sectarian schools does so only as a result of the 'genuinely independent and private choices of aid recipients,' as parents, not the state, choose the school. Third, the program does not create excessive government entanglement with religion, as the state's oversight functions are limited to ensuring compliance with secular educational standards, health and safety codes, and financial audits, which does not involve intrusion into religious matters.
Dissenting - Bablitch, J.
Yes, the amended Milwaukee Parental Choice Program violates the Wisconsin Constitution. The dissent agrees with the court of appeals' conclusion that the amended program violates the prohibition in the Wisconsin Constitution against state expenditures for the benefit of religious societies or seminaries.
Analysis:
This decision was a significant victory for school choice advocates, establishing a key state-level precedent for the constitutionality of voucher programs that include religious schools. It solidified the 'private choice' doctrine, whereby state aid channeled through the independent decisions of parents can withstand Establishment Clause scrutiny. The court's reasoning, emphasizing neutrality and indirection, aligned Wisconsin law with a developing trend in U.S. Supreme Court jurisprudence that would later be affirmed in Zelman v. Simmons-Harris (2002). This case provided a blueprint for how other states could structure similar programs to pass constitutional muster.
