The Wisconsin Decision On School Vouchers – Part II

by Fr. Charles Irvin

June 1998

¶51. These oversight activities relating to conformity with existing law do not create excessive entanglement merely because they are part of the amended MPCP’s requirements. See, e.g., Mueller, 463 U.S. at 403. As the Court held in Hernandez v. Commissioner, 490 U.S. 680, 696-97 (1989):

[R]outine regulatory interaction which involves no inquiries into

religious doctrine, no delegation of state power to a religious

body, and no ‘detailed monitoring and close administrative contact’

between secular and religious bodies, does not of itself violate the

nonentanglement command (citations omitted); accord, Agostini,

117 S.Ct. at 2014-16; Board of Educ. of the Westside Community

Sch. v. Mergens, 496 U.S. 226, 253 (1990); Hartmann v. Stone,

68 F.3d 973 (6th Cir. 1995).

The program does not involve the State in any way with the schools’ governance, curriculum, or day-to-day affairs. The State’s regulation of participating private schools, while designed to ensure that the program’s educational purposes are fulfilled, does not approach the level of constitutionally impermissible involvement.

¶52. In short, we hold that the amended MPCP, which provides a neutral benefit directly to children of economically disadvantaged families on a religious-neutral basis, does not run afoul of any of the three primary criteria the Court has traditionally used to evaluate whether a state educational assistance program has the purpose or effect of advancing religion. Since the amended MPCP has a secular purpose, does not have the primary effect of advancing religion, and does not create an excessive entanglement, it is not invalid under the Establishment Clause.19

II. State Establishment Clause

¶53. The next question presented in this case is whether the amended MPCP violates art. I, § 18 of the Wisconsin Constitution.20 The Respondents argue, and the court of appeals concluded, that the amended MPCP violates both the “benefits clause” and the “compelled support clause” of art. I, § 18. Upon review, we conclude that the amended MPCP violates neither provision.

¶54. The “benefits clause” of art. I, § 18 provides: “nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.” This is Wisconsin’s equivalent of the Establishment Clause of the First Amendment. See King v. Village of Waunakee, 185 Wis.2d 25, 52, 517 N.W.2d 671 (1994); Holt, 66 Wis.2d at 676. This court has remarked that the language of art. I, § 18, while “more specific than the terser” clauses of the First Amendment, carries the same import, Holt, 66 Wis.2d at 676; both provisions “are intended and operate to serve the same dual purpose of prohibiting the ‘establishment’ of religion and protecting the ‘free exercise’ of religion.” See State ex rel. Warren v. Nusbaum (Nusbaum II), 64 Wis.2d 314, 327-28, 219 N.W.2d 577 (1974)(quoting Nusbaum I, 55 Wis.2d at 332). Although art. I, § 18 is not subsumed by the First Amendment, see State v. Miller, 202 Wis.2d 56, 63, 549 N.W.2d 235 (1996), we interpret and apply the benefits clause of art. I, § 18 in light of the United States Supreme Court cases interpreting the Establishment Clause of the First Amendment. See King, 185 Wis.2d at 55; American Motors Corp. v. DILHR, 93 Wis.2d 14, 29, 286 N.W.2d 847 (1979); State ex rel. Wisconsin Health Facilities Auth. v. Lindner, 91 Wis.2d 145, 163-64, 280 N.W.2d 773 (1979).21

¶55. Unlike the court of appeals, which focused on whether sectarian private schools were “religious seminaries” under art. I, § 18, we focus our inquiry on whether the aid provided by the amended MPCP is “for the benefit of” such religious institutions.22 We have explained that the language “for the benefit of” in art. I, § 18 “is not to be read as requiring that some shadow of incidental benefit to a church-related institution brings a state grant or contract to purchase within the prohibition of the section.” Nusbaum I, 55 Wis.2d at 333. Furthermore, we have stated that the language of art. I, § 18 cannot be read as being “so prohibitive as not to encompass the primary-effect test.” State ex rel. Warren v. Reuter, 44 Wis.2d 201, 227, 170 N.W.2d 790 (1969). The crucial question, under art. I, §18, as under the Establishment Clause, is “not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.” Nusbaum I, 55 Wis.2d at 333 (quoting Tilton, 403 U.S. at 679).

¶56. Applying the primary effect test developed by the Supreme Court, we have concluded above that the primary effect of the amended MPCP is not the advancement of a religion. We find the Supreme Court’s primary effect test, focusing on the neutrality and indirection of state aid, is well reasoned and provides the appropriate line of demarcation for considering the constitutionality of neutral educational assistance programs such as the amended MPCP. Since the amended MPCP does not transgress the primary effect test employed in Establishment Clause jurisprudence, we also conclude that the statute is constitutionally inviolate under the benefits clause of art. I, § 18.

¶57. This conclusion is not inconsistent with Wisconsin tradition or with past precedent of this court. Wisconsin has traditionally accorded parents the primary role in decisions regarding the education and upbringing of their children. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972); Wisconsin Indus. Sch. for Girls v. Clark County, 103 Wis.651, 79 N.W.2d 422 (1899); accord Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). This court has embraced this principle for nearly a century, recognizing that: “parents as the natural guardians of their children [are] the persons under natural conditions having the most effective motives and inclinations and being in the best position and under the strongest obligations to give to such children proper nurture, education, and training.” Wisconsin Indus. Sch. for Girls, 103 668-69.

¶58. In this context, this court has held that public funds may be placed at the disposal of third parties so long as the program on its face is neutral between sectarian and nonsectarian alternatives and the transmission of funds is guided by the independent decisions of third parties, see, e.g., State ex rel. Atwood v. Johnson, 170 Wis.218, 175 N.W.2d 589 (1919), and that public funds generally may be provided to sectarian educational institutions so long as steps are taken not to subsidize religious functions, see, e.g., Nusbaum II, 64 Wis.2d 314.

¶59. In Nusbaum II, this court upheld a state program that provided educational benefits without charge to students with exceptional educational needs. Where public resources were inadequate to attend to a student’s exceptional needs, the State could under the program directly contract with private sectarian institutions to provide the necessary services. See Nusbaum II, 64 Wis.2d at 320-21. Reviewing the program, the Nusbaum II court emphasized the neutral process by which students were chosen to participate in the program, see id. at 320, and the great lengths to which the legislature had gone to make sure that the inculcation of religious tenets did not take place, see id. at 325. Applying the primary effect test of Lemon, the court concluded that the program violated neither the Establishment Clause nor art. I, § 18. See id. at 322, 329.

¶60. In Atwood, 170 Wis. 218, this court upheld a program, much like the amended MPCP, that provided neutral educational assistance. The Atwood court considered the constitutionality of educational benefits for returning veterans that encompassed paying the cost of schooling, at any high school or college, including religious schools. Under that program, a student could choose a school, and the State directly paid to the schools the actual increased cost of operation attributed to the additional students. Upholding the program under art. I, § 18, the court concluded:

The contention that financial benefit accrues to religious schools

from [this program] is equally untenable. Only actual increased cost

to such schools occasioned by the attendance of beneficiaries is to

be reimbursed. They are not enriched by the service they render.

Mere reimbursement is not aid. Id. at 263-64.

¶61. In concluding that the amended MPCP violated art. I, § 18, the court of appeals relied heavily on this court’s decisions in State ex rel. Weiss v. District Board, 76 Wis. 177, 44 N.W. 967 (1890) and State ex rel. Reynolds v. Nusbaum, 17 Wis.2d 148, 156, 115 N.W.2d 761 (1962). We find the court’s reliance was misplaced.

¶62. In Weiss, the court held that reading of the King James version of the Bible by students attending public school violated the religious benefits clause of art. I, § 18. Although the court’s reasoning in Weiss may have differed from ours, its holding is entirely consistent with the primary effects test the Supreme Court has developed and we apply today. Requiring public school students to read from the Bible is neither neutral nor indirect. The Edgerton schools reviewed in Weiss were directly supported by public funds, and the reading of the Bible was anything but religious-neutral. The program considered in Weiss is far different from the neutral and indirect aid provided under the amended MPCP. The holding in Weiss, therefore, does not control our inquiry in this case.

¶63. In Reynolds, 17 Wis.2d 148, the court struck down a publicly supported transportation program it perceived was designed to benefit parochial schools. In reaching its conclusion, the Reynolds court applied a stricter standard under art. I, § 18 than that used by the Supreme Court under the Establishment Clause. See id. at 165. This court has since rejected applying this stricter standard in cases arising under the benefits clause of art. I, § 18. See, e.g., Lindner, 91 Wis.2d at 163-64; Nusbaum II, 64 Wis.2d at 328; Reuter, 44 Wis.2d at 227. The court’s analysis and conclusion in Reynolds are therefore not dispositive in our inquiry here.

¶64. The Respondents additionally argue that the amended MPCP violates the “compelled support clause” of art. I, § 18. The compelled support clause provides “nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry without consent ….” The Respondents assert that since public funds eventually flow to religious institutions under the amended MPCP, taxpayers are compelled to support places of worship against their consent. This argument is identical to the Respondents’ argument under the benefits clause. We will not interpret the compelled support clause as prohibiting the same acts as those prohibited by the benefits clause. Rather we look for an interpretation of these two related provisions that avoids such redundancy. See Kungys v. United States, 485 U.S. 759, 778 (1988).

¶65. In Holt, 66 Wis.2d 659, this court interpreted the compelled support provision and applied it to a state program under which public school children were released from school so that they could attend religious centers for religious instruction. See id. at 676-77. In the context provided in Holt, the court interpreted the compelled support clause to prohibit the state from forcing or requiring students to attend or participate in religious instruction. See id. at 676. Under this interpretation, the court upheld the program, finding that the children participating in the program did so only by choice and that, although proof of attendance at the religious instruction was required, the program’s requirements were directed at preventing deception rather than compelling attendance. See id. “Compulsion to attend is not, initially or subsequently, a part of the program.” Id. at 677. The court therefore rejected the compelled support challenge.

¶66. Applying in this case the interpretation of the compelled support clause provided in Holt, we conclude that the amended MPCP does not violate that constitutional provision. Like the program in Holt, the amended MPCP does not require a single student to attend class at a sectarian private school. A qualifying student only attends a sectarian private school under the program if the student’s parent so chooses. Nor does the amended MPCP force participation in religious activities. On the contrary, the program prohibits a sectarian private school from requiring students attending under the program to participate in religious activities offered at such school. The choice to participate in religious activities is also left to the students’ parents. Since the amended MPCP neither compels students to attend sectarian private schools nor requires them to participate in religious activities, the program does not violate the compelled support clause of art. I, § 18.

¶67. In assessing whether the amended MPCP violates Wis. Const. art. IV, § 18, art. X, §3, or the Wisconsin public purpose doctrine, we rely heavily on our analyses and conclusions in Davis, 166 Wis.2d 501. In Davis, the school choice opponents attacked the original MPCP under a barrage of arguments similar to those raised by the Respondents in this case. Specifically, we concluded in Davis that the original MPCP did not violate art. IV, § 18, art. X, § 3, or the public purpose doctrine. In this case, we limit our analysis to determining whether the amendments made to the original MPCP change either the analyses we relied upon or the conclusions we reached in Davis. Upon review we conclude that they do not.