The Wisconsin Decision On School Vouchers

by Fr. Charles Irvin

June 1998

The following are excerpted paragraphs from the recently decided case Jackson v. Benson in the


Case No.: 97-0270 June 10, 1988

Complete Title of Case:

Warner Jackson, Jennifer Evans, Wendell

Harris, The Reverend Andrew Kennedy, Rabbi

Isaac Serotta, Ceil Ann Libber, Father Thomas

J. Mueller, Reverend John N. Gregg, Diane

Brewer, Colleen Beaman, Mary Morris, Penny

Morse, Kathleen Jones and Philip Jones,



John T. Benson, Superintendent of Public

Instruction, Department of Public Instruction

and James E. Doyle,

¶20. The first issue we address is whether the amended MPCP violates the Establishment Clause of the First Amendment to the United States Constitution. Neither the circuit court nor the court of appeals reached this issue. Upon review we conclude that the amended MPCP does not violate the Establishment Clause because it has a secular purpose, it will not have the primary effect of advancing religion, and it will not lead to excessive entanglement between the State and participating sectarian private schools.4

¶21. The First Amendment to the United States Constitution provides in part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This mandate applies equally to state legislatures by virtue of the Due Process Clause of the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940); Holy Trinity Community Sch. v. Kahl, 82 Wis. 2d 139, 150, 262 N.W.2d 210 (1978). The Establishment Clause, therefore, prohibits state governments from passing laws which have either the purpose or effect of advancing or inhibiting religion. See Agostini v. Felton, __ U.S. __, 117 S. Ct. 1997, 2010 (1997).

¶22. When assessing any First Amendment challenge to a state statute, we are bound by the results and interpretations given that amendment by the decisions of the United States Supreme Court. See State ex rel. Holt v. Thompson, 66 Wis.2d 659, 663, 225 N.W.2d 678 (1975). “Ours [is] not to reason why; ours [is] but to review and apply.” State ex rel. Warren v. Nusbaum, (Nusbaum I), 55 Wis. 2d 316, 322, 198 N.W.2d 650 (1972). Our limited role is not aided by the Supreme Court’s candid admission that in applying the Establishment Clause, it has “sacrifice[d] clarity and predictability for flexibility.” Committee for Pub. Educ. and Religious Liberty v. Regan, 444 U.S. 646, 662 (1980).

¶23. The Supreme Court has repeatedly recognized that the Establishment Clause raises difficult issues of interpretation, and cases arising under it “have presented some of the most perplexing questions to come before [the] Court.” Committee for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973); see, e.g., Mueller v. Allen, 463 U.S. 388, 392 (1983); Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). We are therefore cognizant of the Court’s warnings that:

There are always risks in treating criteria discussed by the Court

from time to time as ‘tests’ in any limiting sense of that term.

Constitutional adjudication does not lend itself to the absolutes of

the physical sciences or mathematics . . . [C]andor compels the

acknowledgment that we can only dimly perceive the boundaries of

permissible government activity in this sensitive area of constitutional

adjudication Tilton v. Richardson, 403 U.S. 672, 678 (1971); see also

Mueller, 463 U.S. at 393; Lemon, 403 U.S. at 612.

¶24. In an attempt to focus on the three main evils from which the Establishment Clause was intended to afford protection: sponsorship, financial support, and active involvement of the sovereign in religious activity, see Walz v. Tax Commission, 397 U.S. 664, 668 (1970), the Court has promulgated a three-pronged test to determine whether a statute complies with the Establishment Clause. See Lemon, 403 U.S. at 612. Under this test, a statute does not violate the Establishment Clause if (1) it has a secular legislative purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not create excessive entanglement between government and religion. See id. at 612-13. We must apply this three-part test to determine the constitutionality of Wis. Stat. §119.23.5

a. First Prong – Secular Purpose

¶25. Under the first prong of the Lemon test, we examine whether the purpose of the state legislation is secular in nature. Our analysis of the amended MPCP under this prong of the Lemon test is straightforward. Courts have been “reluctan[t] to attribute unconstitutional motives to the states, particularly when a plausible secular purpose for the state’s program may be discerned from the face of the statute.” Mueller, 463 U.S. at 394-95.

¶26. As the court of appeals recognized, the secular purpose of the amended MPCP, as in many Establishment Clause cases, is virtually conceded. See Jackson, 213 Wis.2d at 29. The purpose of the program is to provide low-income parents with an opportunity to have their children educated outside of the embattled Milwaukee Public School system. The propriety of providing educational opportunities for children of poor families in the state goes without question:

A State’s decision to defray the cost of educational expenses

incurred by parents-regardless of the type of schools their children

attend-evidences a purpose that is both secular and understandable.

An educated populace is essential to the political and economic

health of any community, and a State’s efforts to assist parents in

meeting the rising cost of educational expenses plainly serves this

secular purpose of ensuring that the State’s citizenry is well-educated.

Mueller, 463 U.S. at 395.

The propriety of such legislative purpose, however, does not immunize the amended MPCP from further constitutional challenge. See Nyquist, 413 U.S. at 773-74. If the amended MPCP either has a primary effect that advances religion or if it fosters excessive entanglements between church and state, then the program is constitutionally infirm and must be struck down. See id. at 774.

b. Second Prong – Primary Effect of Advancing Religion

¶27. Analysis of the amended program under the second prong of the Lemon test is more difficult. While the first prong of Lemon examines the legislative purpose of the challenged statute, the second prong focuses on its likely effect. A law violates the Establishment Clause if its principal or primary effect either advances or inhibits religion. See Lemon, 403 U.S. at 612; see also Agostini, 117 S. Ct. at 2010; Mueller, 463 U.S. at 396.

¶28. This does not mean that the Establishment Clause is violated every time money previously in the possession of a state is conveyed to a religious institution. See Witters v. Washington Dep’t of Services for the Blind, 474 U.S. 481, 486 (1986). “The simplistic argument that every form of financial aid to church-sponsored activity violates the Religion Clauses was rejected long ago ….” Tilton, 403 U.S. at 679; see Nusbaum I, 55 Wis.2d at 321 n.4. The constitutional standard is the separation of church and state. See Zorach v. Clauson 343 U.S. 306, 314 (1952). “The problem, like many problems in constitutional law, is one of degree.” Id.

¶29. We begin our analysis under the second prong of the Lemon test by first considering the cumulative criteria developed over the years and applying to a wide range of educational assistance programs challenged as violative of the Establishment Clause. See Tilton, 403 U.S. at 677-78. Although the lines with which the Court has sketched the broad contours of this inquiry are fine and not absolutely straight, the Court’s decisions generally can be distilled to establish an underlying theory based on neutrality6 and indirection:7 state programs that are wholly neutral in offering educational assistance directly to citizens in a class defined without reference to religion do not have the primary effect of advancing religion. The Court has explained:

Given that a contrary rule would lead to such absurd results, we

have consistently held that government programs that neutrally

provide benefits to a broad class of citizens defined without

reference to religion are not readily subject to an Establishment

Clause challenge just because sectarian institutions may also

receive an attenuated financial benefit.Zobrest v. Catalina Foothills

Sch. Dist., 509 U.S. 1, 8 (1993).

¶30. The Court’s general principle under the Establishment Clause has, since its decision in Everson, been one of neutrality and indirection.8 Writing for the majority in Everson, Justice Black set out the view of the Establishment Clause that still guides the Court’s thinking today. The Everson Court explained that “the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.'” Everson, 330 U.S. at 16 (quoting Reynolds v. United States, 98 U.S. 145, 164 (1878)). The Court tempered its statement, however, by cautioning that in maintaining this wall of separation, courts must “be sure that [they] do not inadvertently prohibit [the government] from extending its general State law benefits to all its citizens without regard to their religious belief.” Id. at 16. Under this reasoning, the Court held that the Establishment Clause does not prohibit New Jersey from spending tax-raised funds to reimburse parents directly for the bus fares of parochial school pupils as a part of a general program under which the State pays the fares of pupils attending public and other schools. See id. at 17.

¶31. In Nyquist, the Court struck down on Establishment Clause grounds a New York program that, inter alia, provided tuition grants to parents of children attending private schools. Under the program, New York sought to assure that participating parents would continue to send their children to religion-oriented schools by relieving their financial burdens. See Nyquist, 413 U.S. at 783. Before striking the tuition grants, the Court distinguished on two grounds the New York statute from the New Jersey statute reviewed in Everson: (1) unlike the statute in Everson, the New York statute was non-neutral because it provided benefits solely to private schools and parents with children in private schools, see id. at 782 n.38; and (2) the New York statute provided financial assistance rather than bus rides, see id. at 781-82. The Court concluded that the fact that aid was distributed directly to parents rather than the schools, although a factor in its analysis, did not save the statute because the effect of New York’s program was “unmistakably to provide desired financial support for nonpublic, sectarian institutions.” Id. at 783.

¶32. Significant to the case now before us, however, the Court in Nyquist specifically reserved the issue whether an educational assistance program that was both neutral and indirect would survive an Establishment Clause challenge:

Because of the manner in which we have resolved the tuition grant

issue, we need not decide whether the significantly religious

character of the statute’s beneficiaries might differentiate the

present cases from a case involving some form of public assistance

(e.g., scholarships) made available generally without regard to the

sectarian-nonsectarian, or public-nonpublic nature of the institution

benefited. Id. at 782 n.38.

In cases following its decision in Nyquist, the Court has piecemeal answered this question as it has arisen in varying fact situations. See, e.g., Mueller, 463 U.S. 388; Witters, 474 U.S. 481; Zobrest, 509 U.S. 1; Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819; Agostini, 117 S. Ct. 1997.9

¶33. In Mueller, the Court rejected an Establishment Clause challenge to a Minnesota statute allowing taxpayers to deduct certain educational expenses in computing their state income tax, even though a majority of those deductions went to parents whose children attended sectarian schools. See Mueller, 463 U.S. at 401-02. “Two factors, aside from the States’ traditionally broad taxing authority, informed [the Mueller Court’s] decision.” Zobrest, 509 U.S. at 9. First, the Court noted that, unlike the statute in Nyquist, the Minnesota law “permits all parents-whether their children attend public school or private-to deduct their children’s educational expenses.” Mueller, 436 U.S. at 398. Second, the Court emphasized that under Minnesota’s tax deduction scheme, public funds become available to sectarian schools “only as a result of numerous private choices of individual parents of school-age children,” thus distinguishing Mueller from other cases involving “the direct transmission of assistance from the state to the schools themselves.” Id. at 399. The Court concluded:

The historic purposes of the clause simply do not encompass the sort

of attenuated financial benefit, ultimately controlled by the

private choices of individual parents, that eventually flows to

parochial schools from the neutrally available tax benefit at issue

in this case. Id. at 400.

Mueller makes clear that “state programs that are wholly neutral in offering educational assistance to a class defined without reference to religion do not violate the second part of the [Lemon] test, because any aid to religion results from the private choices of individual beneficiaries.” Witters, 474 U.S. at 490-91 (Powell, J. concurring)(footnote and citations omitted).10

¶34. The Court reaffirmed the dual importance of neutrality and indirect aid in Witters. See Witters, 474 U.S. 481. In Witters, the Court unanimously held that the Establishment Clause did not bar a state from issuing a vocational tuition grant to a blind person who intended to use the grant to attend a Christian college and become a pastor, missionary, or youth director.11 The Court focused first on the program’s indirect aid, finding that because the aid was paid to the student rather than the institution “[a]ny aid provided under Washington’s program that ultimately flows to religious institutions does so only as a result of genuinely independent and private choices of aid recipients.” Id. at 487.

¶35. As in Mueller, the Witters Court then emphasized the neutrality of the program, finding that “Washington’s program is ‘made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited,'” and therefore “creates no financial incentive for students to undertake sectarian education.” Id. at 487-88 (quoting Nyquist, 413 U.S. at 782-83 n.38). In light of these factors,12 the Court held that Washington’s program-even as applied to a student who sought state assistance so that he could become a pastor-would not advance religion in a manner inconsistent with the Establishment Clause.13 See id. at 489.

¶36. The Supreme Court applied the same logic in Zobrest, where it held that the Establishment Clause did not prohibit a school district from providing to a deaf student a sign-language interpreter under the Individuals with Disabilities Education Act (IDEA), even though the interpreter would be a mouthpiece for religious instruction. See Zobrest, 509 U.S. at 13-14. The Zobrest Court, basing its reasoning upon Mueller and Witters, again looked to neutrality and indirection as its guiding principles. Specifically focusing on the general availability of the statute, the Court found that the “service at issue in this case is part of a general government program that distributes benefits neutrally to any child . . . without regard to the . . . ‘nature’ of the school the child attends.” Id. at 10.

¶37. The Zobrest Court then looked to whether the aid was direct or indirect, explaining that “[b]y according parents freedom to select a school of their choice, the statute ensures that a government-paid interpreter will be present in a sectarian school only as result of the private decision of individual parents.” Id. Based on these two findings, the Court concluded: “When the government offers a neutral service on the premises of a sectarian school as part of a general program that ‘is in no way skewed towards religion,’ it follows under our prior decisions that provision of that service does not offend the Establishment Clause.” Id. (quoting Witters, 474 U.S. at 488).

¶38. In Rosenberger, the Supreme Court held that the Establishment Clause did not prohibit the university from funding a student organization, which otherwise would have been entitled to publication funds, merely because it published a newspaper with a Christian point of view. The Court clarified that the critical aspect of the analysis was whether the state conferred a benefit which neither inhibited nor promoted religion. See Rosenberger, 515 U.S. at 839. As long as the benefit was neutral with respect to religion, what the student did with that benefit, even if it was to spend all of it on religion-related expenditures, was irrelevant for purposes of analyzing whether the law or policy violated the Establishment Clause. Id. at 842-43.

¶39. Finally, in Agostini, the Supreme Court held that a federally funded program providing supplemental, remedial instruction on a neutral basis to disadvantaged children at sectarian schools is not invalid under the Establishment Clause when sufficient safeguards exist.14 See Agostini, 117 S. Ct. at 2016. The Court explained that while the general principles used to evaluate Establishment Clause cases have remained unchanged, the Court’s “understanding of the criteria used to assess” the inquiry has changed in recent years. Id. at 2010.15 The Court reiterated that the unchanged principle under the Establishment Clause remains neutrality, and that the Court will continue to ask whether the government acts with the purpose or effect of advancing or inhibiting religion. See id. Writing for the Court, Justice O’Connor set out three criteria the Court has in recent years used to evaluate whether an impermissible effect exists. The aid must “not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement.” Id. at 2016.

¶40. After considering these three criteria, the Court held that the program did not have the primary effect of advancing religion. The Court first concluded that placing full-time employees on parochial school campuses under this program did not result in advancing religion through indoctrination. See id. at 2014. The Court then considered whether the criteria by which the program identified beneficiaries created a financial incentive to undertake religious indoctrination. The Court, synthesizing the central establishment clause principle, concluded that no such incentive existed under the program: “[t]his incentive is not present, however, where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis.” Id. The Court also concluded that the federal program did not result in an excessive entanglement between church and state. See id. at 2015-16.

¶41. The Supreme Court, in cases culminating in Agostini, has established the general principle that state educational assistance programs do not have the primary effect of advancing religion if those programs provide public aid to both sectarian and nonsectarian institutions (1) on the basis of neutral, secular criteria that neither favor nor disfavor religion; and (2) only as a result of numerous private choices of the individual parents of school-age children. The amended MPCP is precisely such a program. Applying to the amended MPCP the criteria the Court has developed from Everson to Agostini, we conclude that the program does not have the primary effect of advancing religion.

¶42. First, eligibility for benefits under the amended MPCP is determined by “neutral, secular criteria that neither favor nor disfavor religion,” and aid “is made available to both religious and secular beneficiaries on a nondiscriminatory basis.” Agostini, 117 S. Ct. at 2014. Pupils are eligible under the amended MPCP if they reside in Milwaukee, attend public schools (or private schools in grades K-3) and meet certain income requirements. Beneficiaries are then selected on a random basis from all those pupils who apply and meet these religious-neutral criteria. Participating private schools are also selected on a religious-neutral basis and may be sectarian or nonsectarian. The participating private schools must select on a random basis the students attending their schools under the amended program, except that they may give preference to siblings already accepted in the school. In addition, under the new “opt-out” provision, the private schools cannot require the students participating in the program to participate in any religious activity provided at that school.

¶43. Under the amended MPCP, beneficiaries are eligible for an equal share of per pupil public aid regardless of the school they choose to attend. To those eligible pupils and parents who participate, the amended MPCP provides a religious-neutral benefit-the opportunity “to choose the educational opportunities that they deem best for their children.” Davis, 166 Wis.2d at 532. The amended MPCP, in conjunction with existing state educational programs, gives participating parents the choice to send their children to a neighborhood public school, a different public school within the district, a specialized public school, a private nonsectarian school, or a private sectarian school.16 As a result, the amended program is in no way “skewed towards religion.” Witters, 474 U.S. at 488.

¶44. The amended MPCP therefore satisfies the principle of neutrality required by the Establishment Clause. As Justice Jackson explained in Everson:

A policeman protects a Catholic, of course-but not because he is a

Catholic; it is because he . . . is a member of our society. The

fireman protects the Church school-but not because it is a Church

school; it is because it is property, part of the assets of our

society. Neither the fireman nor the policeman has to ask before he

renders aid ‘Is this man or building identified with the Catholic

Church.’ Everson, 330 U.S. at 25 (Jackson, J., dissenting).

The amended MPCP works in much the same way. A student qualifies for benefits under the amended MPCP 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. To qualify under the amended MPCP, the student is never asked his or her religious affiliation or beliefs; nor is he or she asked whether the aid will be used at a sectarian or nonsectarian private school. Because it provides a neutral benefit to beneficiaries selected on religious-neutral criteria, the amended MPCP neither leads to “religious indoctrination,” Agostini, 117 S. Ct. at 2014, nor “creates [a] financial incentive for students to undertake sectarian education.” Witters, 474 U.S. at 488; Zobrest, 509 U.S. at 10. As Judge Roggensack concluded, “[t]he benefit neither promotes religion nor is hostile to it. Rather, it promotes the opportunity for increased learning by those currently having the greatest difficulty with educational achievement.” Jackson, 213 Wis. 2d at 61.

¶45. Second, under the amended MPCP public aid flows to sectarian private schools only as a result of numerous private choices of the individual parents of school-age children. Under the original MPCP, the State paid grants directly to participating private schools. As explained above, the program was amended so that the State will now provide the aid by individual checks made payable to the parents of each pupil attending a private school under the program. Each check is sent to the parents’ choice of schools and can be cashed only for the cost of the student’s tuition. Any aid provided under the amended MPCP that ultimately flows to sectarian private schools, therefore, does so “only as a result of genuinely independent and private choices of aid recipients.” Witters, 474 U.S. at 487.

¶46. We recognize that under the amended MPCP the State sends the checks directly to the participating private school and the parents must restrictively endorse the checks to the private schools. Nevertheless, we do not view these precautionary provisions as amounting to some type of “sham” to funnel public funds to sectarian private schools. In our assessment, the importance of our inquiry here is not to ascertain the path upon which public funds travel under the amended program, but rather to determine who ultimately chooses that path. As with the programs in Mueller and Witters, not one cent flows from the State to a sectarian private school under the amended MPCP except as a result of the necessary and intervening choices of individual parents. As a result, “[n]o reasonable observer is likely to draw from [these facts] an inference that the State itself is endorsing a religious practice or belief.” Witters, 474 U.S. at 493 (O’Connor, J., concurring); see also Zobrest, 509 U.S. at 9-10.

¶47. The amended MPCP, therefore, places on equal footing options of public and private school choice, and vests power in the hands of parents to choose where to direct the funds allocated for their children’s benefit. We are satisfied that the implementation of the provisions of the amended MPCP will not have the primary effect of advancing religion.17

c. Third Prong – Excessive Government Entanglement

¶48. The final question for us to determine under the Lemon test is whether the amended MPCP would result in an excessive governmental entanglement with religion.18 Stated another way, it is necessary to determine whether “[a] comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions [against the inculcation of religious tenets] are obeyed and the First Amendment otherwise respected.” Lemon, 403 U.S. at 619.

¶49. Not all entanglements have the effect of advancing or inhibiting religion. The Court’s prior holdings illustrate that total separation between church and state is not possible in an absolute sense. “Judicial caveats against entanglement must recognize that the line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.” Lemon, 403 U.S. at 614. Some relationship between the State and religious organizations is inevitable. See id. (citing Zorach, 343 U.S. at 312). “Entanglement must be ‘excessive’ before it runs afoul of the Establishment Clause.” See Agostini, 117 S. Ct. at 2015.

¶50. The amended MPCP will not create an excessive entanglement between the State and religion. Under the amended program, the State need not, and in fact is not given the authority to impose a “comprehensive, discriminating, and continuing state surveillance” over the participating sectarian private schools. Lemon, 403 U.S. at 619. Participating private schools are subject to performance, reporting, and auditing requirements, as well as to applicable nondiscrimination, health, and safety obligations. Enforcement of these minimal standards will require the State Superintendent to monitor the quality of secular education at the sectarian schools participating in the plan. But this oversight already exists. In the course of his existing duties, the Superintendent currently monitors the quality of education at all sectarian private schools.

Part II of the article

About Charles Irvin

Fr. Charlie was ordained a priest June 3, 1967 and has served as pastor of St. Mary Student Chapel in Ann Arbor, founded Holy Spirit parish in Hamburg, MI, served as pastor of St. Francis of Assisi parish in Ann Arbor and was pastor of St. Mary parish in Manchester, MI when he entered Senior Priest status in 2001. In 1999 he was appointed Founding Editor of FAITH Magazine which has grown into Faith Catholic Publishing located in Lansing, MI. He is now very active in his “retirement.”