*1 Evans, Warner Harris, Jennifer Wendell Jackson, Kennedy, Reverend Andrew Serotta, Rabbi Isaac Ceil Libber, Ann Father Mueller, Thomas J. Reverend Gregg, Mary Brewer, John N. Diane Beaman, Colleen Penny Philip Morris, Morse, Kathleen Jones and Plaintiffs-Respondents,
Jones,
v. Superintendent John T. Instruction, Public Benson, Department Doyle, of Public Instruction and James E.
Defendants-Appellants-Petitioners, Marquelle Cynthia Angela Gray, Miller, Miller, Zachery Gray, George Richardson, Shon Richardson, Henry, Faye Henry, Reigne Barrett, Latrisha Valerie Barrett, Williams, Williams, Candice Senton Clintrai
Giles, Giles, Sharon Intervenors-Defendants-
Appellants, Gonzalez, Pilar Dinah Choice, Parents For School Cooley, Vogel, Helsper, Yang, Blong Julie Kate Gail Crockett, Knox, Yolanda Lassiter Jeanine Intervenors-Defendants-Appellants-Petitioners. by its Milwaukee Association, Teachers' Education Lengyel, President, Howard, M. Charles Michael Tracy Lucier, Adams, Donald Milwaukee Public Supervisors Council, Schools Administrators and Inc., People its Director, Gobel, Executive Carl A. for the Way, by American its Executive Vice President and Legal Mincberg, Director, Drew, Elliott M. John Riley, Endress, Robertson, Susan Richard Jeanette Knox, Vincent Zamudio, Johnson, Bertha James Sally Mills, Plaintiffs- Ullman and F. Robert *2 Respondents, v. Superintendent Instruction, of Public John T. Benson, Doyle, Department Instruction James E. of Public Defendants-Appellants-Petitioners, Gray, Angela Cynthia Marquelle Miller, Miller, George Gray, Zachery Richardson, Richardson, Shon Henry, Henry, Faye Reigne Barrett, Valerie Latrisha Williams, Williams, Senton Clintrai Barrett, Candice Giles, Intervenors-Defendants- Giles, Sharon
Appellants, Gonzalez, Dinah Pilar Choice, For School Parents Blong Yang, Vogel, Helsper, Cooley, Gail Kate Julie Knox, Crockett, Lassiter and Jeanine Yolanda Intervenors-Defendants-Appellants-Petitioners. for the Advancement Association National Chaney, Parker, Lois on O. Felmers People, Colored Hobbs, child, minor Rashaan herself and her behalf of of himself and Scott, his minor Derrick D. on behalf Scott, Scott and Desmond L.J. children, Deresia C.A. Cherry, herself and her J. on behalf of Constance Monique Branch, children, Branch, J. Monica S. minor Plaintiffs-Respondents, Branch, A. and William
v. Superintendent of Public Instruction John T. Benson, capacity, Wisconsin, Defendant- in his official
Appellant. Supreme Court argument 4, 1998. No. 97-0270. Oral March June —Decided 10, (Also 602.) reported in 578 N.W.2d *6 For the defendants-appellants-petitioners, John T. Benson, al., there were briefs by Edward S. Marion et Murphy Desmond, & S.C., Madison and Kenneth and Jay Ullyot Starr, W. P. Theodore Lefkowitz, W. and Ellis, Kirkland & D.C., Washington, and oral argu- Jay P. Leflzowitz. ment by intervenors-defendants-appellants-peti-
For the parents choice, al., et were tioners, there for school Hurley Hurley, by Burish & Milli- Steve P. and briefs William, Mellor, Bolick, III, Clint ken, C., H. Madison; S. Washington, Justice, S. Garnett and Institute Nicole argu- oral Dean, D. Waukesha and D,C, and Michael by ment Clint Bolick. intervenors-defendants-appellants, Mar-
For the quelle Potter al., there briefs Kevin Miller, et were Steil, P. Hutchison Brennan Madison and Richard City, Legal Foundation, Kansas MO Landmark argument by Richard P. Hutchison. and oral plaintiffs-respondents, Jackson, Warner et For by Jeffrey Kassel, J. Melanie E. al., there was a brief *7 Sinykin, Peter Madison; and & M. Cohen LaFollette Koneazny American Civil Liberties Union Wis- and Shapiro Foundation, Inc., Milwaukee; StevenR. consin Foundation, Union American Civil Liberties New and York, K. and Americans United NY and Steven Green Washington, Separation State, D.C., Church & argument by Jeffrey Kassel. and oral J. by plaintiffs-respondents, a brief
For the there was Chanin, H. John and Kai- Robert M. West Bredhoff& Washington, Perry, ser, P.L.L.C., D.C.; Richard Perry, Quindel, and Lerner & Milwau- Richard Saks Meredith, Wisconsin kee; Bruce Chris Galinat and Mincberg, Association, Madison; Elliot M. Education Washington, Timothy D.C. and Judith Schaeffer, Myers, Dowling Schneidman, & Hawks and argument by oral Robert Milwaukee and Blumenfield, H. Chanin. plaintiffs-respondents, NAACP, et al.,
For Lynch by Law a brief William H. and there was Offices Lynch, Hall, and H. James William H. Milwaukee Jr., Hall, and Patterson & Charne, Milwaukee and oral argument by Hall, James H. Jr. Wagner
Amicus curiae was filed K. Scott and Lein, Geoly, S.C., Hale & Milwaukee and James C. MacKay Kevin R. Burke, Warren, & Ser- Gustafson Chicago, ritella, P.C., IL for the Center for Education Legislative Exchange, Reform, American CEO America, CEO Florida, Central CEO Connecticut, Put- ting First, Children James Madison Institute for Public Policy Policy Studies, Jewish Center, "I Have a Dream" (Washington, Chapter), Foundation D.C. Institute for Liberty Affairs, Public Counsel, Maine School Choice Pennsylvania Coalition, Manufacturers Association, Policy Reach Alliance, Arkansas Foundation, North Carolina Education Foundation, Reform Texas Justice Partnership, Foundation, Minnesota Business Min- nesotans for Choice, School Toussaint Institute, South Policy Carolina Counsel, and United New Yorkers for Choice in Education. by Ralph
Amicus curiae was filed Thomas, I. Colby Madison; McFarland, Steven T. Kimberlee W. Legal Society, and Christian Annandale, VA and of Berg counsel, Thomas C. School, Cumberland Law Birmingham, Legal Society, AL for The Christian Eth- Religious Liberty ics and Commission of the Southern Baptist Synod Convention, Lutheran Church-Missouri Evangelicals. and the National Association of *8 by Amicus curiae was filed David Riemer, R. Mil- Norquist, waukee for Howard L. Fuller, John O. Steven Darling, Margaret Foti, Joseph M. Alberta Farrow, A. Leean, Gardner, John S. Warren D. Braun, Bruce R. Thompson, Lucey. Jeanette Mitchell and David by Kelly
Amicus curiae was filed Daniel and Bertling, McLario, Helm & S.C., Menomonee Falls for Family Institute, Research Christian Defense Family Justice, Research Fund, Center for Public Liberty and Focus Council, Tradition, Counsel Toward Family. on by Bradden Backer and was filed C.
Amicus curiae Godfrey Kahn, S.C., Robert L. & Milwaukee and Brady Weiss, Berzowski, Donahue, & Mil- and Gordon for The Milwaukee Jewish Council waukee Community Jewish and The Wisconsin Relations Conference. by Stern, Marc D. Lois C.
Amicus was filed curiae Congress, York, American Jewish New and Waldmani Congress. for the American Jewish NY STEINMETZ, This case W. J. DONALD issues for review: raises number of (1) the amended Milwaukee Parental Does MPCP) (amended Program violate the Estab- Choice Amendment the United Clause of First lishment appeals the court of nor States Constitution? Neither We conclude that it the circuit court reached this issue. not. does
(2) religious Does the amended MPCP violate the provisions of Wisconsin Constitution establishment appeals opinion, § I, 18? In a divided court of art. it conclude that it does not. held that does. We (3) bill Is the amended MPCP a or local procedural requirements of the enacted violation Const, § IV, The court mandated Wis. art. 18? appeals question, did reach not this circuit held it conclude that it is not. court is. We (4) MPCP violate the uniform- Does the amended Const, ity provision X, The court of Wis. art. 3? appeals issue, this circuit court did not reach *9 concluded that the amended MPCP does not violate the uniformity clause. We also conclude that it does not.
(5) Does the amended MPCP violate Wisconsin's public purpose requires doctrine, which spent only public purposes? funds be for The court of appeals did not issue, reach this and the circuit court concluded that the amended MPCP does violate the public purpose doctrine. We conclude that it does not.
(6) eligible Should children who were for the injunction amended MPCP when this court's issued on August subsequently 25, 1995, and who enrolled in eligible schools, be for the if the injunction is lifted? Neither court below addressed this they issue. We conclude that should. petition 2. This case is before the court on for published
review of a
appeals,
decision of the court of
(Ct.
Jackson Benson,
v.
1,
213 Wis. 2d
now reverse MPCP does not violate also conclude that the amended or Clause Wisconsin the Establishment Constitution. again
¶ con- asked to review the 3. are once We stitutionality Choice Parental Milwaukee (1995-96).1 Program provided § in 119.23 Wis. Stat. original legislature Mil- The enacted Wisconsin MPCP) (original Program in Parental Choice waukee Act amended in See 336. As 1989 Wis. percent original permitted up 1.5 of the stu- MPCP to membership Schools dent of the Milwaukee Public (MPS) any private no the student to attend at cost to City Milwaukee, in the nonsectarian school located eligibility requirements. subject to certain original legislature ¶4. MPCP, Under the eligible participation in the limited the for students original original eligible program. MPCP, To be (1) kindergarten in a student had to be a student (2) family through grade; to be a had from twelfth not 1.75 times the federal income did exceed whose poverty (3) either in a level; and had to be enrolled attending private public Milwaukee, in a school school during program, under this or not enrolled school 119.23(2)(a)l-2 year. previous § Stat. Wis. (1993-94). variety quali- legislature placed a 5. The also requirements reporting on schools
fication and choosing original participate To be in the MPCP. to original eligible participate MPCP, to pro- comply had anti-discrimination school to with the Stats, stated, are Unless all references to otherwise of the statutes. to 1995-96 version imposed by § health 2000d2 and all U.S.C. visions safety apply to Wisconsin and laws codes 119.23(2)(a)4-5. § The school addi- at See id. schools. tionally an annual basis defined had to meet on performance to the State criteria and had submit performance at audits. See id. financial and certain (9). 119.23(7), original Super- MPCP, the State 6. Under the required to Instruction was intendent of Public reporting supervisory perform tasks. a number of Superintendent legislature required the State report regarding achieve- student an annual submit parental discipline, ment, attendance, program compared to in the for students *11 involvement general. at in See id. enrolled in MPS students 119.23(5)(d). required original the § MPCP further performance Superintendent the to monitor State empow- program, participating it in the students financial and one or more him or her to conduct ered program. performance See id. at the audits of (9)(a). 119.23(7)(b), § pro- original MPCP, the State Under the 7. private directly participating to funds
vided attending private school a For each student schools. paid participating program, to each the the State under per equal private the aid to state school an amount under entitled MPS would have been student to which 119.23(4). § See id. at formulas. state aid distribution approxi- year, this amount was In 1994-95 school the mately per participating amount student. The $2,500 United person in the provides: "No 42 U.S.C. §2000d race, color, origin, shall, or national be ground States on the of, in, or be be denied benefits participating from excluded activity any program discrimination under or subjected to receiving Federal financial assistance." year by
of state aid MPS received each
reduced
was
paid
private
participating
amount the State
schools
119.23(5)(a).
original program.
§
in the
at
id.
original
¶ 8. The
MPCP
withstood
number of
challenges
Grover,
state constitutional
in
v.
Davis
(1992).
501,
Davis,
Wis. 2d
nal MPCP. See 1995 Act First, 4002-4009. *12 119.23(2)(a) legislature § the removed from Wis. Stat. participating private the that schools be limitation §27, "nonsectarian." See 1995 Act Second, 4002. legislature percent the increased to 15 in the 1996-97 year percentage membership school the total of MPS participate program. § allowed to in the See id. at 4003. legislature requirement Third, the deleted the that the Superintendent performance State conduct annual legislature, report and it elimi- to the evaluations authority Superintendent's to conduct the nated pro- performance audits of the or evaluation financial gram. §§ 4007m and 4008m. See id. at origi- legislature amended the Fourth, the paying State, the rather than nal MPCP so that participating pay directly, required the aid schools is parent guardian. participating student's or to each MPCP, the amended the State shall "send Under parent guardian private school," and the or check to the "restrictively of the endorse the check for use shall private § Fifth, at 4006m. the amended school." Id. places limitation on the amount MPCP an additional pay parent guardian. Under to each or pay the State will MPCP, the lesser of the the amended the State will per § or aid under Wis. Stat. 121.08 MPS student state per private "operating and debt service cost school's programming" pupil as that related to educational is MPCP id. The amended determined the State. See private schools does not restrict the uses to which legislature repealed put Sixth, the can the state aid. percent private no more than 65 of a the limitation that participants. program school's enrollment consist Finally, legislature "opt- § added an See id. at 4003. private requir- provision prohibiting a school from out" attending private ing school under this "a student any religious activity participate if section to pupil's parent guardian to the teacher or submits request principal school's written exempt pupil Id. at 4008e.3 from such activities." be commence in the expansion of the was set to injunction, more than year. By the time of the 1995-96 school Schools 4,000 in Milwaukee Public previously children enrolled (MPS) 3,400 admitted to applied had and over had been program. choice schools -under the amended *13 Respondents, ¶ Jackson, 12. The Warner et al- and Milwaukee Teachers Education Association (MTEA), original August
et al. filed two actions Together challenged the 1995. the lawsuits amended MPCP under the Establishment Clause of First Const, § § I, X, IV, art. art. Amendment; 18; 3; Wis. art. public purpose § 18; and the Wisconsin doctrine. On August 15, 1996, the Association for National (NAACP) People sepa- Advancement of Colored filed a alleging rate lawsuit, the same claims as the first two adding that, face, lawsuits and a claim on its Equal amended MPCP violated Protection Clause Const, I, of the Fourteenth Amendment and Wis. art. § 1. The NAACP then filed a motion to consolidate the cases, The circuit lawsuits. court consolidated the but proceedings equal protection bifurcated the so that the only claims heard if would be the amended MPCP was upheld. (Rule) filed, 13. The State under Wis. Stat. petition original
809.70, a for leave to commence an seeking action, from this court a declaration that the amended MPCP was constitutional. This court accepted original jurisdiction prelimi-
and entered a
nary injunction staying
implementation
of the
program, specifying
pre-1995 provi-
amended
that the
original program
sions of the
were unaffected.
Following
argument,
split
oral
this court
three-to-three
petition,
issues,
on the constitutional
dismissed the
effectively
remanded the case to the circuit court
proceedings.
Thompson
for further
See State ex rel.
v.
Jackson,
714,
2d
tially preliminary injunction, thereby lifted the allowing implement the State to all of the 1995 amend- *14 allowing participation except the amendment ments January the circuit schools. sectarian summary judg- granted motions for the Plaintiffs' court summary motion for ment, denied the State's judgment, to the invalidated the amendments and held that the amended MPCP MCPC. The circuit court compelled support religious the benefits violates Const, public § or local I, 18, art. bill clauses of Wis. Const, public § prohibitions IV, 18, art. and the of Wis. applied program purpose to sectarian doctrine as the that the amended The circuit court also found schools. uniformity did not violate the clause Wis. Const, public purpose § as it X, 3 or the doctrine art. applied schools. Because to the nonsectarian the amended MPCP on the circuit court invalidated grounds, the court did not address constitutional state question program violates the Estab- whether appealed from the circuit Clause. The State lishment Rog- appeals, Judge of with order, and the court court's dissenting, gensack affirmed. appeals majority of held that A of the court 15. against prohibition amended MPCP violates religious expenditures of societies for benefit
state Const, §I, 18. The art. contained Wis. or seminaries appeals, MPCP therefore, the amended struck court unnecessary entirety to reach the it in its and found constitutional issues. and the federal other state granted appealed State's court, to this and we State petition for review. Respondents chal- court, In the circuit
lenged under the Establishment the amended MPCP Const, §I, 18; art. Amendment; the First Clause of pur- § IV, the Wisconsin X, 3; 18; art. art. pose in turn. each issue doctrine. We address begin analysis
¶ 17. Before we our of the clarify pause MPCP, amended we the issues not argument, before this court. In their briefs and at oral parties presented testimony information and expressing positions pro bearing and con on the merits type program. of this of school choice This debate largely MPCP, concerns the wisdom of the amended its efficiency point view, from an educational and the political adoption. considerations which motivated its stop arguments, We do not to summarize these nor to opinion analysis they them, burden this with an germane involve considerations not to the con- narrow presented stitutional issues in this case. In the absence *15 desirability a violation, of cacy constitutional and effi- through of school choice are matters to be resolved political process. program may This be wise or provident improvident unwise, or from an educational public policy viewpoint. preferences, Our individual however, are not the constitutional standard. of
Standard
Review
Procedurally,
¶ 18.
this case is before the court
pursuant
grant
summary judg-
to the circuit court's
of
Plaintiffs-Respondents.
independently
ment to the
We
grant
summary judgment,
a
review
of
see Burkes v.
(1994),
Klauser, 185
308, 327,
Wis. 2d
517
503
N.W.2d
applying
methodology
the same
as that used
e.g.,
Pope,
See,
circuit court.
234,
v.
194
2dWis.
Kafka
(1995);
City
240,
852 constitutionality MPCP. The con- of the amended stitutionality question of law which we of a statute is a giving independently, deference to the without review appeals. circuit court and the court decisions of the 301, 115 Post, 279, 197 2d 541 N.W.2d See State v. Wis. (1995); Migliorino, 513, 524, 442 150 Wis. 2d State v. (1989). 36 N.W.2d duly any statute, 19. Like other enacted strong presumption enjoys consti- a
amended MPCP
tutionality.
legislative
presumed
All
acts
are
every presumption must be
constitutional,
indulged
Randall,
v.
192
to sustain the law. See State
(1995);
ex rel.
800, 824, 532
94
State
Wis. 2d
N.W.2d
Paper
Plante,
32, 47,
2d
Co. v. La
58 Wis.
Hammermill
(1973).
enough
"[it]
Accordingly,
is not
I.
Clause
Establishment
is whether the
The first issue we address
Clause
MPCP violates the Establishment
amended
States Constitu-
to the United
the First Amendment
appeals
circuit court nor the court
tion. Neither the
Upon
conclude that
this issue.
review we
reached
the Establishment
MPCP does not violate
amended
purpose,
not
it will
it has a secular
Clause because
it
advancing religion,
have the
effect of
primary
will not lead to excessive
between the
entanglement
State and
sectarian
schools.4
participating
21. The First Amendment
to the United States
in
that
part
"Congress
Constitution
shall
provides
an
respecting
religion,
make no law
establishment of
the free exercise thereof." This mandate
prohibiting
to state
virtue of the
applies equally
legislatures
Due Process Clause of the Fourteenth Amendment. Connecticut,
Cantwell v.
Holy
296,
(1940);
310 U.S.
4Citing
Supreme
the United
decision in
States
Court's
(1987),
Salerno,
United States v.
Trinity Community
Kahl,
Sch. v.
82
139,
Wis. 2d
150,
(1978).
¶ 22. When First Amendment challenge by to a statute, state we are bound interpretations given by results and that amendment Supreme the decisions of the United States Court. See Thompson, ex State rel. Holt v. 659, 66 2d 663, 225 (1975). [is] why; N.W.2d 678 "Ours not to reason ours [is] apply." but to review and State ex rel. Warren v. (Nusbaum I), Nusbaum, 316, 55 Wis. 2d 322, 198 (1972). by N.W.2d 650 Our limited role is not aided Supreme applying Court's candid admission that in "sacrifice[d] clarity Establishment Clause, it has and predictability flexibility." for Committee Pub. Educ. for Religious Liberty Regan, v. 444 646, U.S. 662 (1980). Supreme repeatedly recog
¶ 23. The Court has nized that the Establishment Clause raises difficult interpretation, arising issues of and cases under it presented perplexing questions "have some of the most [the] to come before Court." Committee Pub. Educ. Religious Liberty Nyquist, v. 756, 413 U.S. (1973); e.g., see, Allen, 388, Mueller v. 463 U.S. (1971). (1983); Lemon v. Kurtzman, 403 U.S. cognizant warnings We are therefore of the Court's that: always
There are in treating risks criteria dis- cussed the Court from time to time as 'tests' any limiting sense of that term. Constitutional adjudication does not lend itself to the absolutes of *18 .[C]andor . or mathematics. sciences physical only that we can acknowledgment
compels gov- permissible of the boundaries dimly perceive area this sensitive activity in ernment adjudication. constitutional (1971); see also 672, U.S. 678 Richardson, 403 v. Tilton Lemon, U.S. at 612. 393; 403 Mueller, 463 U.S. at attempt main the three to focus on In an Clause was Establishment evils from which sponsorship, protection: financial to afford intended sovereign support, of the involvement and active activity, Commission, religious 397 v. Tax see Walz (1970), promulgated a the Court has 664, 668 U.S. three-pronged a statute whether
test
to determine
Lemon,
complies
Clause.
with
Establishment
not
test, a statute does
this
Lemon v. recognize that five apply it in this case. We no choice but to questioned Justices have Supreme States Court current United Chapel Lamb's v. Lemon test. See continued use of the (1993) 384, 398 Dist., 508 U.S. Union Free Sch. Center Moriches Supreme Court (Scalia, J., concurring). majority of the Until otherwise, however, apply we continue to directly holds — Felton, —, U.S. 117 S. Ct. Agostini v. Lemon test. See (1997) should leave to the (stating that other courts overruling its deci- own Supreme prerogative Court "the - Prong Purpose a. First Secular prong ¶ 25. Under the first test, of the Lemon we purpose legislation examine whether the of the state is analysis secular in nature. Our of the amended MPCP prong straightforward. under this of the Lemon test is "reluctan[t] Courts have been to attribute unconstitu- particularly tional states, motives to the when a plausible purpose program may secular for the state's be discerned from the face Mueller, of the statute." U.S. at 394-95. *19 appeals recognized,
¶ 26. As the court of
the sec-
purpose
many
ular
MPCP,
of the amended
as in
virtually
cases,
Establishment Clause
is
See
conceded.
purpose
program
Jackson,
sions."). Court, Supreme Unlike the we cannot command this "ghoul" to return to its tomb when we wish it to do so. See (Scalia, J., Chapel, concurring). Lamb's 508 at U.S. 398-99 legisla- propriety of such at 395. Mueller, 463 U.S. the amended purpose, immunize however, does not tive challenge. See constitutional from further MPCP MPCP Nyquist, If the amended U.S. at 773-74. religion primary or if advances effect that has a either entanglements church between excessive it fosters constitutionally program infirm and is state, then See id. at 774. down. must be struck - Advancing Primary Prong b. Second of Effect Religion Analysis under ¶ 27. the amended prong more difficult. Lemon test is of the the second legislative prong Lemon examines the first oí While prong challenged purpose statute, the second of the likely Establish violates the effect. A law focuses on its principal primary effect either if its ment Clause religion. at Lemon, 403 U.S. or inhibits advances Agostini, Mueller, 463 2010; at 117 S. Ct. 612; see also U.S. at 396. mean that the Establishment This does not money every previously in the time is violated
Clause conveyed religious possession to a institu- is state Dep't Washington Services v. tion. See Witters (1986). argu- simplistic "The U.S. Blind, *20 every to church- of financial aid form ment that Religion activity sponsored was Clauses violates rejected long ago. 679; see Tilton, ." 403 U.S. at . . The 2d at 321 n.4. constitutional I, 55 Wis. Nusbaum separation church and state. See of standard is (1952). prob- 306, 314 "The Clauson 343 U.S. Zorach v. many problems law, of in constitutional is one lem, like degree." Id. begin analysis the second our under 29. We considering
prong the cumu- the Lemon test first of
858
lative criteria
over the
and
developed
years
to
applying
a wide
of educational
range
assistance programs chal-
as violative of the
lenged
Establishment Clause. See
Tilton,
class The Court has religion. advancing of effect primary explained: to such rule would lead contrary that a
Given gov- that consistently held results, have we absurd neutrally provide benefits that programs ernment reference of citizens defined without class to broad readily subject to an Establish- not religion are sectarian just because challenge ment Clause attenuated finan- may receive an also institutions cial benefit. Dist., Sch. 1, U.S. 8 Foothills
Zobrest v. Catalina (1993). under principle general The Court's decision in Ever- has, since its Clause
Establishment
Writing
and indirection.8
son,
neutrality
one of
been
Everson,
out the
Black set
Justice
the majority
for
guides
that still
Clause
of the Establishment
view
Everson,
243-44;
Allen,
388,
(1983);
Id. at 669.
*22
thinking today.
explained
Court's
The Everson Court
against
religion by
that "the clause
establishment of
separation
law was intended to erect 'a wall of
between
(quoting
Church and State.'" Everson,
¶ 31.
the Court struck down on
grounds
program
Establishment Clause
a New York
provided
grants
parents
that,
alia,
inter
tuition
to
attending private
program,
children
schools. Under the
sought
participating parents
New York
to assure that
religion-ori-
would continue to send their children to
by relieving
ented schools
their financial burdens. See
Nyquist,
striking
factor in "unmistakably to program effect of New York's was desired financial secta- support nonpublic, provide Id. at 783. rian institutions." us, to the case now before how- Significant reserved the in Nyquist ever, specifically the Court assistance whether an educational issue an neutral and indirect would survive Estab- was both Clause challenge: lishment resolved
Because of the manner which we have issue, grant we need not decide whether the tuition *23 the significantly religious character of statute's might present differentiate the cases beneficiaries form involving public from a case some of assistance generally made available with- (e.g., scholarships) sectarian-nonsectarian, public- or regard out nonpublic nature of institution benefited.
Id.
at 782
In cases
its decision in
following
n.38.
this
Nyquist,
the Court has
answered
piecemeal
ques-
See,
e.g.,
in varying
tion as it has arisen
fact situations.
Witters,
Mueller,
481; Zobrest,
463
U.S.
388;
U.S.
474
v. Rector
Visitors Univ.
1; Rosenberger
509 U.S.
of
819; Agostini,
117 S. Ct.
Virginia,
U.S.
1997.9
of
reject
argument
Respondents'
that this
is
We
case
by
Religious Liberty
Pub. Educ.
controlled Committee
v.
(1973). Although
Nyquist, 413 U.S.
the tuition reimburse
MPCP,
closely parallels
in
amended
program Nyquist
ment
significant
each of the
Nyquist,
there are
distinctions.
facets
challenged
exclusively
private
program
directed aid
MPCP,
contrast,
by
provides
and their
a
schools
students.
parents
school-age
to qualifying
neutral benefit
children in
Nyquist,
Milwaukee Public Schools. Unlike the
in
financially-qualified
excluded
only
Milwaukee students
from
MPCP
in the
participation
the amended
are those
fourth
already
grade
higher
attending private
schools. The
who are
rejected
33.
In Mueller, the Court
an Establish-
challenge
ment
allowing
Clause
to a Minnesota statute
taxpayers
expenses
to deduct certain educational
computing
though major-
their
tax,
state income
even
ity
parents
of those deductions went to
whose children
attended sectarian schools. See Mueller,
The historic purposes of the simply clause do not encompass the sort of benefit, attenuated financial ultimately controlled the private choices of indi- *24 parents, vidual that eventually parochial flows to from neutrally schools the available tax benefit at issue in this case. MPCP,
amended surrounding context, viewed in its merely religious adds range pre-existing schools to a of educational choices available to MPS children. This seminal fact takes the amended MPCP Nyquist out of the places construct and it within the framework of neutral education assistance programs.
863 clear that "state programs Id. Mueller at 400. makes assis- offering are neutral in educational wholly that do religion to a defined without reference to tance class [Lemoii] test, the because part violate the second of not to from the choices of aid results any religion Witters, 474 at 490-91 individual beneficiaries." U.S. (footnote (Powell, concurring) J. and citations omitted).10 34. The Court reaffirmed the dual importance Witters, and indirect aid Witters. in
of
neutrality
Witters,
unanimously
held
rather than the institution "[a]ny aid provided under that Washington's program ultimately flows to relig- ious institutions does so only as a result of genuinely independent and private choices of aid recipients." Id. at 487. in Mueller, Witters Court As then
emphasized neutrality of the program, that finding "Washington's is program 'made available generally without regard to the sectarian-nonsectarian, or pub- nature of lic-nonpublic the institution benefited,'" therefore "creates no financial incentive for to students sectarian education." Id. at 487-88 (quoting undertake n.38). Nyquist, U.S. at 782-83 In light of these factors,12 the Court held that Washington's pro- gram as applied to a student who state sought —even assistance so that he could become a pastor not —would
12The Court in
distinguished
Witters further
Washing
program
ton
from the
grants Nyquist by
tuition
in
noting that in
application
"significant
no
portion
expended
of the aid
under
the Washington program as a whole
up flowing
will end
religious
Witters,
education."
service does not offend the Establishment Clause." Id.
488).
(quoting Witters, 474 U.S. at
Rosenberger,
Supreme
¶ 38.
Court held
prohibit
that the Establishment Clause did not
the uni-
versity
funding
organization,
from
a student
which
publication
otherwise would have been entitled to
merely
published newspaper
funds,
because it
with a
point
Christian
of view. The Court clarified that the
aspect
analysis
critical
of the
was whether the state
conferred a
pro-
benefit which neither inhibited nor
religion.
Rosenberger,
moted
held that supple- funded mental, remedial instruction on a neutral basis to disadvantaged children at sectarian schools is not invalid under the Establishment Clause when suffi- safeguards Agostini, cient exist.14 See 117 S. Ct. at explained general prin- 2016. The Court that while the ciples used to Establishment evaluate Clause cases MPCP, Unlike the amended the education assistance program Agostini reviewed in federally was funded under Title I Elementary of the Secondary Education Act of U.S.C. 6301 et seq. Agostini, 117 S. Ct. at pro 2003. The gram, however, designed was implemented by a local agency, educational the Board City of Education of of New York. See id. at Although 2003—05. City's New York Title I program funded, federally was Agostini we find the Court's analysis program of that relevant to our review of the State funded amended MPCP. "understanding unchanged, the Court's
have remained
changed
inquiry
to
has
the criteria used
assess"
years.
that
Id. at 2010.15The Court reiterated
in recent
principle
unchanged
under
Establishment
neutrality, and that the Court will con-
remains
Clause
government acts with the
to ask whether the
tinue
religion.
advancing
inhibiting
purpose
or effect of
Writing
Court,
O'Connor set out
for the
Justice
See id.
years
Court
in recent
used to
three criteria the
has
impermissible
an
effect exists. The
evaluate whether
governmental
indoctrination;
must
result
aid
"not
by
religion;
recipients
or create
its
reference
define
entanglement." Id. at 2016.
an excessive
considering
criteria,
40.
these three
After
program
primary
held
did not have the
Court
religion.
advancing
The Court first concluded
effect
parochial
placing
employees on
school
that
campuses
full-time
program
this
did not result
advanc-
under
religion through
ing
at
See id.
indoctrination.
criteria
considered whether the
The Court then
identified beneficiaries created a
which
religious
indoctrina-
financial incentive
undertake
synthesizing
Court,
tion. The
central
principle,
clause
concluded that no such
establishment
*28
"[t]his
program:
incentive
under the
incentive
existed
present, however,
the aid is allocated on
is not
where
neutral,
of
secular criteria that neither favor
the basis
religion,
disfavor
and is made available
both
nor
religious
on a
and secular beneficiaries
nondiscrimina-
tory
that
Id. The Court also concluded
basis."
City's
upholding
program,
New
Title I
York
directly
Supreme
Agostini
Court in
overruled its decision in
Felton,
(1985),
portion
v.
U.S. 402
as well as a
Aguilar
its
Ball,
v.
Rapids
in
Dist.
are
for an
eligible
to attend. To those
school
choose
they
of the
regardless
who
parents
participate,
and
eligible pupils
a
bene-
provides
religious-neutral
amended MPCP
educational
"to choose
fit —the opportunity
children."
they
deem best
their
opportunities
MPCP,
Davis, 166
2d at 532. The amended
existing state educational
conjunction
programs,
with
their
the choice to send
parents
gives participating
school,
a different
neighborhood
children
a
public
district,
a specialized public
school within
public
school, or
sec-
school, a
nonsectarian
private
private
is in
result,
tarian
As a
the amended program
school.16
Witters, 474 U.S.
at
religion."
no
towards
way "skewed
constitutionality
into the
of the amended
inquiry
Our
encompass
consequences
"the
and
of the
MPCP must
nature
J.,
Witters,
(Powell,
U.S. at
as a whole."
program viewed
case,
concurring). According
facts
stipulated
in this
system
financing,
public
per-pupil school
in which
State's
child,
range
encompasses
follow
now
a wide
of school
funds
each
mainly
religious.
but
or
Numer
public,
some
choices—
ous
type of
programs
amended the number and
have
public school
options
educational
available to
students.
Qualify
may
among the
ing public
students
choose from
school
schools,
schools,
magnet
charter
public
Milwaukee
district
schools,
schools,
schools,
trade
schools devel
suburban
needs,
exceptional
oped for students with
now sectarian
in the amended
participating
nonsectarian
schools
case,
programs
let state funds follow stu
MPCP.
each
parents
to the
their
have chosen.
dents
districts
schools
*30
¶ 44. The amended MPCP therefore satisfies the
principle
neutrality required by
of
the Establishment
explained
Clause. As Justice Jackson
in Everson:
A policeman protects
Catholic,
a
of course —but not
because
Catholic;
he is a
it is because he.
. .is a
of
society.
member
our
The
protects
fireman
Church school —but not because it
is a Church
school; it is
it
property, part
because
is
of the assets
of our society. Neither
the fireman nor
police-
man has
ask
to
before he renders aid 'Is this man or
building identified with the Catholic Church.'
(Jackson,
dissenting).
Everson,
under the amended
private schools, therefore, does so
flows to sectarian
*31
independent
private
"only
genuinely
as a
and
result
recipients." Witters, 474
at 487.
choices of aid
U.S.
recognize
¶ 46.
that under
the amended
We
directly
partic-
the
the
MPCP the State sends
ipating
checks
to
private
parents
the
must
school and
restrictively
private
the
to the
schools.
endorse
checks
precautionary pro-
Nevertheless, we do not
these
view
amounting
type of
to funnel
as
to some
"sham"
visions
private
public
sectarian
schools. In our assess-
funds to
inquiry
importance
ment, the
here is not to
our
path upon
public
travel
ascertain the
which
funds
program,
but rather to determine
under
amended
pro-
ultimately
path. As
who
chooses that
with
grams in
from
Witters,
and
not one cent flows
Mueller
private
the State to a sectarian
school under
necessary
except as
of the
and
amended MPCP
a result
intervening
parents.
result,
choices of individual
As a
likely
[these
"[n]o
to
reasonable observer is
draw from
endorsing
facts] an
that
itself is
inference
the State
religious practice
Witters,
or belief."
equal options of school power parents choice, and vests in the hands of choose where to direct the funds allocated for their implemen- children's benefit. We are satisfied that the provisions tation of the of the amended MPCP will not primary advancing religion.17 have the effect of - Prong c. Third Excessive Government Entanglement question
¶ 48. The final
for us to determine
under the Lemon test is whether the amended MPCP
governmental entangle-
would result in an excessive
religion.18
way,
ment. with
necessary
Stated another
it
is
"[a] comprehensive,
to determine whether
discriminating,
continuing
state surveillance will
Respondents
The
argue
also
that the amended MPCP has
primary
advancing
effect of
religion because a substantial
percent of
program's
aid will flow to sectarian
They
schools.
point out that
of the 122
eligible
schools
to participate in
amended
89 are sectarian.
argument
We find this
unpersuasive.
Supreme
against
Court has warned
"focus
ing on
money
undoubtedly
expended
is
by the
government rather than on the nature of the
benefit received
recipient."
Rosenberger,
inevitably
restrictions
to ensure that these
be
obeyed
tenets]
religious
[against
are
of
the inculcation
respected."
the First Amendment otherwise
and
Lemon,
advancing
inhibiting
Court's
holdings
separation
total
between
illustrate
possible
state
in an absolute sense.
church and
is not
recognize
entanglement
against
must
caveats
"Judicial
being
separation,
'wall,'
far from
is a
that the line
depending on
blurred, indistinct, and variable barrier
particular
relationship."
of a
all the circumstances
relationship
Lemon,
U.S.
Some
between the
at 614.
religious organizations is inevitable. See id.
State and
312). "Entanglement
(citing Zorach,
at
must
343 U.S.
afoul
'excessive' before it runs
of the Establishment
be
Agostini,
formity existing with law do not create excessive entanglement merely they part because are of the requirements. e.g., amended See, MPCP's Mueller, 463 U.S. at 403. As the Court held Hernandez v. Com (1989): missioner, 680, 490 U.S. 696-97 [RJoutine regulatory interaction which involves no inquiries religious doctrine, into no delegation of state power religious to a body, and no 'detailed administrative monitoring and close contact' bodies, between secular and religious does not of itself nonentanglement violate the command.
(citations omitted);
Agostini,
accord,
117 S.Ct. at
Community
16; Board
Educ.
the Westside
2014 —
of
Mergens,
(1990);
Sch. v.
496 U.S.
Hartmann v.
(6th
1995).
Stone,
which a neutral benefit to children of economically disadvantaged religious- families on a any basis, neutral does not run afoul of of the three primary traditionally criteria the Court has used to pro- evaluate whether a state educational assistance gram purpose advancing religion. has the or effect purpose, Since the amended MPCP has a secular does primary advancing religion, not have the effect of *34 entanglement, it is not not an excessive does create Clause.19 under Establishment invalid Clause II. State Establishment question presented case next in this is 53. The §I, 18 of the MPCP violates art. whether amended argue, Respondents The and Constitution.20 Wisconsin appeals concluded, that the amended court of "com- the "benefits clause" and the MPCP violates both Upon support § pelled review, I, of we clause" art. MPCP violates neither that the amended conclude provision. provides: I, § of art. 18 54. The "benefits clause" treasury money any be from the
"nor shall drawn religious theolog- religious societies, of or or the benefit equivalent of This is Wisconsin's ical seminaries." of See Clause the First Amendment. Establishment King Village 52, 517 Waunakee, 25, 185 Wis. 2d v. of (1994); Holt, at 671 2d 676. This court N.W.2d 66 Wis. language §I, 18, art. while has remarked that the of specific the First "more than terser" clauses of 19 we amended MPCP does not vio Since conclude issue, Clause, not the Establishment we need address late al., Miller, Marquelle et exclud raised Petitioners whether ing the Free sectarian schools from violates Exercise the First Amendment. Clause of 20 Const, I, provides 18 art. as follows: § according right every person worship Almighty of God to the infringed; any person of shall nor shall dictates conscience never be attend, compelled any place worship, support or or to erect be of, any consent; ministry, any maintain nor shall control or without any with, rights permitted, be or interference conscience preference given by any religious law to establishments or be treasury any money worship; drawn modes of nor shall be from the religious societies, religious theological
for the benefit of or seminaries. Holt,
Amendment,
carries the same import,
2dWis.
676;
at
both
"are
provisions
intended and operate to
serve the same dual
purpose
prohibiting the 'estab
lishment' of
religion
the 'free
protecting
exercise' of
(Nus
State ex rel.
v.
Warren Nusbaum
religion."
II),
baum
64 Wis. 2d
327-28,
Wisconsin
traditionally
parents the
accorded
court. Wisconsin has
regarding
primary
and
the education
role
decisions
e.g.,
upbringing
See,
v.
of their children.
Wisconsin
(1972);
Sch.
Yoder,
parties
on its face is neutral
as the
so
alternatives and
and nonsectarian
between sectarian
independent
guided
of funds is
the transmission
e.g.,
parties, see,
ex rel. Atwood
third
State
decisions of
(1919), and
Johnson,
175 N.W.2d
v.
*37
may
public
generally
provided to
that
funds
be
secta-
long
steps
rian educational institutions so
as
are taken
e.g.,
religious functions, see,
not to
Nusbaum
subsidize
II,
program
provided
that
educational benefits without
charge
exceptional educational needs.
to students with
inadequate
to
to a
Where
resources were
attend
exceptional needs, the State could under the
student's
directly
program
insti-
contract with
sectarian
provide
necessary
tutions to
services. See Nusbaum
Reviewing
program,
II,
Id. at 263-64. concluding
¶
MPCP
In
that the amended
vio
61.
appeals
heavily
§
relied
on
I, 18,
lated art.
the court
v. District
court's decisions in State ex rel. Weiss
this
(1890)
177, 44
and State ex rel.
Board, 76 Wis.
N.W.
Reynolds
148, 156, 115
Nusbaum,
v.
17 Wis. 2d
N.W.2d
(1962).
misplaced.
reliance was
We find the court's
reading
of the
Weiss,
In
the court held that
62.
by
attending
King
students
James version of
Bible
religious
public
clause of
school violated the
benefits
Although
reasoning
§
in
I,
the court's
Weiss
art.
18.
holding
entirely
may
ours, its
is
have differed from
Supreme
primary
effects test
consistent with
today.
apply
Requiring
developed and
Court has
we
from the Bible is neither
school students to read
Edgerton
in
indirect. The
schools reviewed
neutral nor
directly supported by public funds, and the
Weiss were
religious-neu-
reading
anything
but
Bible was
far
considered in Weiss is
different
tral. The
provided
indirect aid
under
from the neutral and
holding Weiss, therefore,
in
does
amended MPCP. The
inquiry in this case.
not control our
Reynolds,
court
17 Wis. 2d
63.
In
transportation pro-
publicly supported
struck down
designed
parochial
gram perceived
it
was
benefit
Reynolds
reaching
conclusion, court
its
schools.
applied
§I, 18 than that
under art.
a stricter standard
Supreme Court under the Establishment
used
rejected
This court has since
Clause. See id. at 165.
applying
arising
under
standard
cases
this stricter
e.g.,
See,
Lindner, 91
I,
clause of art.
the benefits
II,
328;
¶ 64. The "compelled support the amended MPCP violates the compelled support §I, of art. 18. The clause clause" any person compelled provides attend, "nor shall be any worship, support place or to maintain erect or *39 any ministry Respondents consent. ..." The without public eventually relig- assert that since funds flow to taxpayers MPCP, ious under the amended institutions compelled support places worship against are to argument identical to the their consent. This Respondents' is argument under the clause. benefits We compelled interpret support the will not clause as prohibited by prohibiting the acts as those the same interpretation clause. Rather we look for an benefits provisions these two related that such redun- avoids dancy. Kungys States, 759, United 485 U.S. v. (1988). Holt, 65. 66 Wis. 2d this court inter-
preted compelled support provision applied the it program to a state under which school children they were released from school so that religious could attend religious centers for instruction. See id. at provided Holt, 676-77. In the context in the court inter- preted compelled support prohibit the the clause forcing requiring state from students to attend or participate religious in instruction. See id. at 676. interpretation, upheld pro- Under this the court gram, finding participating that the children in the program only by although proof that, so did choice religious required, of attendance at the instruction was program's prevent- requirements at were directed compelling ing deception rather than attendance. See initially "Compulsion not, to attend is or subse- id. part program." quently, a of the Id. at 677. The court rejected compelled support challenge. therefore interpretation Applying in case the this provided compelled support Holt, clause in we con- not clude that the amended MPCP does violate provision. program Holt, Like the in constitutional single require a student to amended MPCP does not qualifying private A attend class at a sectarian school. only under student attends a sectarian school parent program if so chooses. Nor the student's relig- participation in does the amended MPCP force contrary, program prohibits ious activities. On the requiring a attending school from students sectarian religious participate program in under partici- The choice to activities offered at such school. pate religious to the students' activities is also left compels parents. Since the amended MPCP neither private schools nor students to attend sectarian participate religious requires activities, them to compelled support clause does not violate the *40 § I, of art. 18. assessing
¶ the amended MPCP 67. In whether Const, § § X, 3, or the IV, 18, art. art. violates Wis. rely heavily public purpose on doctrine, we Wisconsin analyses Davis, in 166 2d 501. and conclusions Wis. our orig- opponents choice attacked Davis, In the school barrage arguments similar to inal MPCP under a Specifi- by Respondents in this case. those raised original cally, MPCP in Davis that the we concluded public § § 3, IV, 18, X, art. art. or did not violate purpose analysis to case, limit our doctrine. this we determining made to the the amendments whether analyses
original
change
MPCP
either the
we relied
Upon
upon
or the conclusions we reached
Davis.
they
do not.
review we conclude
III. Private or Local Bill
presented
The third
in this case is
68.
issue
private
local
whether the amended MPCP is a
bill
procedural
which
enacted in violation of the
was
by
requirements
§IV,
mandated Wis. Const. art.
§
IV,
69. Article
18 of the Wisconsin Constitu-
private
may
tion states in full: "No
or local bill which
be
legislature
passed
than
shall embrace more
one
subject,
expressed
and that shall
in the title." This
be
provision
constitutional
addresses the form in which
legislation
or local
is enacted and not the sub-
legislation.
Davis,
stance of that
1) encourage legislature to devote its time to 2) large, primary the state at responsibility; its discrimination, specter avoid the of favoritism and potential is inherent appli- which laws of limited 3) cability; public through to alert its representatives elected to the real nature and sub- ject legislation matter of under consideration. DHSS, 79, 107-08,
Milwaukee
v.
2d
Brewers
(1986).
requirements
IV,
884 purview of art. the amended MPCP comes within §IV, 18. analysis a Davis, 70. we set forth two-fold Const,
assessing whether a bill or statute violates Wis. §IV, art. 18: process must address in which
We first whether presumption a of the bill was enacted deserves con- stitutionality. Second, we must address whether If the bill is or local. the bill is found to be requirements local, IV, then the of art. namely, legislation apply; § single subject that the must be a 18 and the title of the must
bill bill clearly subject. reflectthe
Id. at 520. the amended MPCP under this We review analysis. two-fold inquiry pro- Thus, our first is whether the by which the amended MPCP was enacted
cess constitutionality. presumption of Where deserves the legislature alleged to have violated a constitu- is mandating procedure provision tional which pass, indulge presumption of must we will not bills constitutionality, mockery "for to do so make a of would procedural requirement." City constitutional Sewerage Comm'n, 144 v. Milwaukee Wis. Brookfield (1988); City n.5, see 2d 912-13 N.W.2d DNR, 424, 437, 2d 518 N.W.2d Oak Creek v. 185 Wis. (Ct. 1994). may App. "Nonetheless, this court 276 indulge constitutionality presumption where it is legislature adequately did consider or evident that the legislation question, even where such discuss legislation passed part as of a voluminous bill." was Davis, 2d at Creek, 437; 2d at see 166 Wis. Oak 521-23.
¶ find no evidence in this case that the 72. We logrolled through smuggled or MPCP was amended contrary, legislature. the record establishes On the legislature "intelligently participate^] in con- that the sidering" Davis, 166 2d at the amended MPCP. n.5). (quoting 144 at 912 Wis. 2d Brookfield, Agreed Upon According in Statement of Facts original to the MPCP were case, this proposed the amendments portion a ofthe 1995-1997 the Governor as budget bill, was referred to the Joint biennial which During spring 1995, on Finance. the original Committee along proposed MPCP, amendments to the budget, aspects of the were dis- with other biennial hearings throughout public the state.23 The cussed at proposed specifically debated, then amendments were adopted by 1995, in June the Joint Com- amended, and Assembly debated, Finance. The then mittee on hearing specifically public on, and amended, held a proposed part passed amendments as of the bien- budget budget bill was then nial bill. biennial public hearings referred to the Senate. The Senate held proposed debated, in the amend- on, and concurred original July 26, 1995, MPCP. On ments to the portion amended MPCP was enacted as a Budget, Biennial 1995-97 State of Wisconsin Wis. Act stipulated case, 73. Under the facts of this we smug-
find it evident that the amended MPCP was not gled through legislature, forged in but rather was origi hearings proposed on the amendments to Public aspects budget of the bill were nal MPCP and other biennial 3,1995, City April Cedarburg in on held in the of Milwaukee on 27, 1995, 21, 1995, Portage March in on March Madison on 23, 1995, Falls on March 1995. See March River 211A Record Document at 7. legislature
the deliberative kiln of debate. The adequately considered and discussed the amended though proposed MPCP, even amendments were ultimately part multi-subject enacted as of a bill. We proper apply presumption therefore find it of con- stitutionality process to the in which the amended MPCP was enacted into law. inquiry 74. Our next line of is whether the *43 program "private legislation.
amended
is
or local"
See
"private
Davis,
¶ 75. To assess whether the amended MPCP is
private
legislation,
apply
or local
we
the test this court
created in
Davis,
First, the classification which distinctions on substantial must be based from another. really different make one class germane must be Second, adopted the classification law. of the purpose to the on must not be based
Third, classification Instead, only. the classifica- existing circumstances that other being open, such subject to tion must be class. join could cities class, apply it must
Fourth, applies to a a law when of the class. to all members equally class should [F]ifth, of each the characteristics . . . so the other classes from those of so far different be hav- propriety, at least the reasonably suggest as to substantially good, of regard to the ing legislation. different 144 Wis. (quoting Brookfield, 2d at 526
Davis, 166 Wis. 907-09). 2d at MPCP original held that Davis, we test elements of the all five
satisfied Brookfield subject local legislation not therefore was *44 Davis, IV, 18. See in art. requirements the procedural origi- to the The 1995 amendments 2d at 537. 166 Wis. any way the program not change nal MPCP did in Davis as to or conclusions analyses alter our would the Brook- fourth, fifth elements of first, third, the only assert case, Respondents In this the test.25 field third, fourth, first, and fifth aspects relevant to In all test, identical the amended MPCP is elements of Brookfield First, original in Davis. like the original upheld MPCP to the recog a classification amended MPCP involves program, Second, by cities ofthe first class. accepted this court: nized and subject class, is join the classification cities can this since other MPCP, terms, Third, applies the amended its being open. changes that, as a result of the made to the imposed by Davis, since the classification the amended satisfy MPCP does not the second element ofthe Brook- test. We therefore limit our discussion to the field second element of the test. Brookfield ¶ 77. The second element of the test Brookfield requires adopted ger- that "the classification must be purpose mane to the of the law." Brookfield, Wis. 907, 2d at Davis, 917-20. In we concluded that original MPCP satisfied this element because it was experiment perceived prob- "an intended to address a inadequate opportunities lem of educational disadvantaged Davis, children." 166 Wis. 2d at explained: 535. We there
[T]he classification of first germane class cities is purpose Clearly, the law. improving qual- ity of opportunities education and educational Wisconsin is a importance. matter of statewide experiment best location to aimed legislation with improving quality at of education is in a first city, large class urban area where the socio-eco- nomic and disparities greatest educational are educational choices are most abundant. Id. at 535. Respondents holding
¶ 78. The
contend that our
in Davis does not control the determination in this case
longer experimental
because the amended MPCP is no
in nature and therefore the classification of cities of the
longer germane
purpose
first class is no
to the
of that
equally
qualifying
Finally,
to all
cities.
the characteristics of
cities of the
sufficiently
first class are
different from those of
suggest
other classes of cities
propriety
so to
at least
substantially
Davis,
legislation.
different
law. We experimental character. gram its retained has experimental original concluding MPCP was that the characteris- legislation, on two participation court focused the Davis (one program: limited its the tics of compilation membership) percent and its data MPS of The provisions. at 533-34. reporting See id. two these retained MPCP has amended characteristics. original program, First, like 79. of an abandonment MPCP is not
amended legisla- system. amendments, the the 1995 With school increasing percent by program expanded to ture financially membership of the number of MPS total eligible disadvantaged to attend students though this MPCP. Even the amended schools under represents the total number increase in a substantial eligible participate, still of students membership. only portion No of MPS affects small membership percent will be MPS of the than 85 less Although pro- it amended MPCP. unaffected larger MPCP still view, the amended vides a somewhat opportunity the effec- provides to test but a "window Id. at 533.26 to the MPS." an alternative tiveness of original program, Second, like the mea- the State to to allow MPCP continues amended competition on education. effects of choice sure the the 1995 amend- 2d at 533. With Davis, 166 Wis. See experimental destroying program's Rather than larger sample of nature, program to a expansion of the measure the researchers may make it easier for students Greene, Jay P. in education. experiment of this effectiveness Peterson, Du, School Jiangtao The E. & Paul Effectiveness Secondary Analysis Data From A in Milwaukee: Choice Evaluation, at 26-27. Program's *46 legislature merits, monitoring deleted some of the requirements original plan. Specifically, from the legislature requirement deleted the the State Superintendent performance conduct annual evalua- report legislature, tions and to the and it eliminated Superintendent's authority the performance to conduct financial or program.
evaluation audits of the §§ 1995 Wis. Act 27 at 4007m and 4008m. The requires Legislative MPCP, amended however, performance Audit Bureau to conduct a financial and evaluation of the and to submit it to each legislature by January house of the 15, 2000. See id. at § 4008s. legislature 81. The mere fact that the has cho- year
sen to conduct one evaluation in the
2000 rather
destroy
experi-
than on an annual basis does not
explained
mental nature of the amended MPCP. As we
"[t]his experiment
theory
Davis,
tests a
of educa-
experiment
tion." Id. at 534. The effects of this
will be
only by
graduation
measured not
the test scores or
preservers"
rates of those students to whom "life
have
thrown,27
been
but also
the education those stu-
dents who remain in MPS receive. Nor will the success
experiment
by focusing
or failure of this
be measured
solely
participating
program,
on those students
in the
by considering
parental
spurs
but also
whether
choice
competitiveness
and innovation within the
edu-
system.
legislature
provided
cation
has
a
process by
reasonable
which to review the
effects
IV,
amended MPCP. Article
18 does not dictate a
("The
Davis,
(Ceci, J.,
27See
concurring)
particular for such review. We therefore timetable opinion yearly express or one no whether evaluations years provide a at the end of four will more evaluation measure of the cost-effective accurate more MPCP's effects. amended short, conclude that amended we legis- program, experimental original
MPCP, like the is perceived problem in the lation intended to address *47 opportunities quality of and educational education experiment with such a The location to Wisconsin. program best city class, is in a of the first where "socio- disparities.. .are most and educational abun- economic at 535. amended MPCP's classification of dant." Id. The germane pur- first therefore to the cities of the class is pose of the of the law. The second element Brookfield Accordingly, we that the test is satisfied. hold amended private meaning not a or local bill MPCP is within Const, subject § 18, IV, art. and thus not to its of Wis. requirements. procedural Uniformity
IV. Clause presented The issue in this case is fourth uniformity MPCP whether amended violates Const, appeals provision §X, ofWis. art. 3. The court issue, court not reach this circuit concluded did violate the uni- that the amended does not formity clause. § X, 84. Wisconsin Constitution art. states: legislature provide by shall for the law schools, district which shall be as
establishment nearly practicable; uniform as and such schools charge shall be free and without for tuition all ages years; of 4 and no children between the and 20 therein;.... sectarian instruction shall be allowed Respondents argue ¶ 85. The first that program, primarily amendments to the the removal of funding prevented private limits that school from operating solely public effectively on funds, transforms private participating schools in the amended MPCP subject into district schools to the nonsectarian clause key § argument X, of art. Davis, 3. As in to this is private by participating whether schools, in the pur- MPCP, amended become "district schools" for the poses uniformity they clause. We conclude that do not. Relying ¶ 86. on the classification in Stat. 115.01(1) private and on the fact that a school could percent
receive 100 Respondents of its tuition funds, from participat-
contend that
schools
ing
"public
in the amended MPCP will become
schools"
they
"elementary
high
sup-
because
will be
schools
ported by public
squarely
taxation." In Davis this court
rejected
argument
receiving
schools
original
state funds under the
MPCP were "district
uniformity requirement applies.
schools" to which the
Davis,
¶ reasoning 87. We the same in this case. original Like the MPCP, the amended expressly participating "private refers to schools as "private by schools." The term school"is defined statute private satisfying to include those institutions the requirements § of Wis. Stat. 118.165 or determined to by Superintendent be a school the State under 115.001(3r). § § Wis. Stat. 118.167. See Wis. Stat. "We 893 statutory legislature was of this that the aware assume 'private meaning . a to use school'. .as and intended statutory Davis, 2d at 538. As in 166 Wis. term of art." pub- appropriation mere of Davis, that the we conclude not transform that to a school does lic monies § This X, under 3. con- into a district school art. school by public of funds a is not affected amount clusion private school receives. argue Respondents § X, art. The also that 3 88. diverting
prohibits
students
funds
State from
system.
public
§
away
X, 3, the
school
Article
from
Respondents
requires
contend,
the district schools
that
system state-supported
only
education. This
of
be the
specifically rejected
argument
too
raised and
was
Davis,
2d at
166 Wis.
538-40.
Davis. See
argued
opponents
Davis,
choice
requirement
explicit
§
X,
in art.
3 that
State
prohibits
public
implicitly
district schools
establish
support any
legislature
spending
from
funds to
dissenting
district schools. As
schools other than
system public
argued:
opinion
of
"the constitutional
only general
to be
school
education was intended
supported
Davis,
taxation."
166
instruction
be
(Abrahamson,
dissenting).
J.,
court,
558
Wis. 2d at
rejected
relying
precedent
court,
this
that conten
on
of
(citing
id. at
State ex rel. Comstock v.
tion. See
537-38
1, 65
631, 636-37, 27
Sch. Dist.
Wis.
N.W. 829
Joint
No.
(1886)
Grover,
469, 496-97,
148
2d
and Kukor v.
Wis.
(1989));
Smith, 74
568
accord Buse v.
Wis.
436 N.W.2d
(1976); Reuter,
2d
550, 565, 2d
N.W.2d
City
v. Town Manitowoc
221;
at
Manitowoc
(1939). Applying
Rapids,
98,
assure certain minimal educational opportunities for the It children Wisconsin. does require not legislature ensure that all of the in children Wis- consin receive a free uniform basic education.
Rather, uniformity requires legisla- clause ture to provide opportunity for all children in Wisconsin to receive a free uniform basic education. Davis, 166 2d at original upheld
¶ 90. Similar to the MPCP in way any deprives Davis, the amended no MPCP in opportunity public student of the to attend a school By enacting awith uniform character of education. merely MPCP, amended the State has certain allowed disadvantaged advantage children to take alterna- opportunities tive educational provided by in addition those §X, State under art. 3. The students participating in MPCP amended do so choice may any at withdraw time and return to a legislature "[W]hen provided [ ] school. has for each privileges child the of a school, district he which or she may freely enjoy, requirement the constitutional complied behalf Comstock, that is with." 65 Wis. at legislature Davis, 636-37. As in we conclude that the merely has done so here. The MPCP amended reflects a legislative desire to do more than that which is consti- tutionally mandated. pri-
¶ 91. We therefore hold the sectarian participating vate schools the MPCP do not purposes constitute "district schools" for the uni- formity position clause. We also reaffirm the that the *50 pro- duty
legislature to its has fulfilled constitutional The State's education of our children. vide for the basic upon experimental attempts improve to that founda- way deny any opportunity to student tion in no system. public in the school receive the basic education 539. Davis, See 166 Wis. 2d at Purpose V. Doctrine Public presented ¶ case is The fifth issue this 92. pub- the amended MPCP violates Wisconsin's whether appeals purpose did not reach lic doctrine. court of issue, court concluded that it does. this circuit public although purpose
¶ doctrine, not 93. The any specific constitution, the state recited in clause in Hop doctrine. See is a well-established constitutional per City 120, 128, 256 Madison, v. 79 2d N.W.2d of (1977). in State rel. Warren 139 As this court stated ex 414, 2d 208 780 Nusbaum, 391, v. 59 Wis. N.W.2d (1973), may expended only public "[p]ublic be for funds expenditure purposes. of funds other than An public purpose to the constitution a would be abhorrent of Wisconsin." "[w]e public purpose doctrine, Under the 94. practica- 'wisdom,
are
merits or
not concerned with
bility
legislature's
are
enactment.' Rather we
to
'public purpose
determine
can be conceived
whether
might reasonably
justify
be
or serve
which
deemed
expenditure.'"
Millers
Ins.
as a basis for
City
Nat'l
v.
155, 175-76,
Milwaukee, 184 Wis. 2d
516
(1994)
129)
(quoting Hopper, 79 Wis. 2d at
N.W.2d 376
omitted).
(internal citation
"A court can conclude that
only
public purpose
palpable'
no
exists
if it is 'clear and
public."
Plante,
that there can be no benefit
La
(citation omitted).
Wis. 2d at 56
party disputes
No
that education consti-
public purpose,
tutes a valid
or that
schools
may
employed
purpose.
be
to further that
Education
apex
Yoder,
ranks at the
of a state's
function.
213;
U.S. at
Brown v.
Education,
483,
Board
347 U.S.
(1954).
long recognized
equal
This court has
opportunities
right, see,
educational
are a fundamental
e.g., Buse,
74 Wis. 2d
and that the State
broad
has
*51
oppor-
discretion to determine how
ensure
best to
such
Davis,
tunities.
541-44; Kukor,
See
¶ 96. The
in this case
private
participating
whether
schools
in the
governmental
proper
amended
are under
con-
supervision,
by
required
trol and
as
Wisconsin
Girls,
Davis,
Industrial School
at 668.
Wis.
See
for
Reuter,
Wis. 2d at 541-42;
To test to public monies private public a purposes, institution for this court must private determine whether is institutioh regulations under reasonable for control accountability public to secure 'Only interests. such accountability reasonably control as is neces- sary public under circumstances to attain the purpose required.' is (quoting Reuter, 44 at Wis. 2d
Davis, 166 2d at omitted). 216)(internal therefore must citation We only amended MPCP includes whether the determine reasonably accountability requirements control and necessary public purpose it is to to which secure directed. accountability arguments
¶ 98. The control and largely by Respondents in this case were raised Davis. See id. at 541-45. handled this court in original public upheld under a Davis, we MPCP challenge. purpose case, in the choice doctrine As this orig- argued opponents that the Davis controls woefully inadequate. there MPCP We inal were statutory applicable pri- concluded that the controls coupled parental choice sufficed to schools with vate public purpose was met. See id. at 546. that the ensure Similarly, in Reuter this court held that private appropriations did to a medical school public purpose cir- doctrine where the not violate the presented pretext giving cumstances "no frivolous using money of a school but *52 public purpose." at Reuter, Wis. 2d school to attain a private not The noted that the school was 214. court regulated schools, it to same extent as but the concluded that: and not be con- private agency
A cannot should two-fistedly government agency... as .A trolled as aid agency government is to the private selected it or perform can the service as well better because government. bog pri- the should not down than We agencies unnecessary government vate with necessary it . .We do not think is control. . the state must required by the constitution that in legally agency corporation be to control the able regulations for control and order to find sufficient accountability. The state is in not interested con- trolling the day-to-day operation of the medical product. school but in its end
Id. at 217. light applied
¶ 100. of the standard in Davis Reuter, and we conclude that control and accountabil- ity safeguards the in amended MPCP are sufficient to purpose promot- ensure that the fulfills its ing private participating First, education. the schools subject in the amended MPCP continue to be to the regulations instruction, curriculum, and attendance govern that all schools. See Wis. Stat. 118.165(1) §§ 118.167; and Davis, 166 at Wis. 2d require Second, the amended MPCP continues to an by Superintendent annual audit financial the State provides Legisla- and an additional review the covering tive Audit Bureau both and financial performance plan. evaluations See Wis. Stat. (9). 119.23(7)(am), Finally, Davis, as in the schools participating subject in the amended MPCP are also the additional checks inherent notion school [plan] choice. is also "Control fashioned with parental form of .If choice... school does not parents' expectations, parents may meet go remove child from the and school elsewhere." Davis, 2d at 544. These combined elements of the amended MPCP more are than sufficient control accountability pro- measures to ensure that gram public purpose serves the it which is directed. Respondents argue additionally
¶ 101. The public purpose the amended MPCP violates the doc- religious trine because it funds education other religious public purposes. activities that not are Respondents argue, *53 held, and the court circuit that public religious private schools, because funds flow to public purpose. findWe does not serve a the interpreted argument have never unfounded. We this incorporate public purpose an anti- doctrine to principle. has to That the State chosen establishment in the amended schools include sectarian public purpose program's not render the MPCP does may adopt such an the State Whether invalid. provisions of approach under the issue resolve is an we §I, 18. art. the amended hold that 102. We therefore public purpose doctrine not violate
MPCP does public purpose, it it and contains fulfills valid because to its controls attain and reasonable sufficient purpose. Equal Protection Claim
VI. NAACP's
challenges
raised
In addition
alleges
Respondents,
the amended
the NAACP
equal protection
clauses of
MPCP violates the
Amendment to the United States Constitu-
Fourteenth
§
Constitution.28
I,
and art.
1 of the Wisconsin
tion
to the United States Consti
The Fourteenth Amendment
life,
any
deprive any person of
provides "nor shall
State
tution
law;
any
deny
nor
liberty,
property,
process
without due
jurisdiction
equal protection
of the laws."
person within its
Const,
is
equivalent of this clause
found Wis.
The functional
I,
people
equally
independent,
1:
bom
free and
art.
"All
are
§
life, liberty
among
rights;
these are
and have certain inherent
rights, govern
pursuit
these
happiness;
to secure
instituted,
deriving
just
powers from
are
their
ments
governed."
ex rel. Sonneborn
of the
As we noted
State
consent
(1965)
43, 49-50,
¶ 104.
It is
often
rule in this state
that issues not considered
court
circuit
will not
appeal.
be considered for the first time on
See Binder v.
City Madison,
613,
72 Wis. 2d
618,
In this
all the issues raised are
disposed
upon
tions
can be
of "based
a
Conway,
consideration of the record." State v.
34 Wis.
(1967);
76, 83, 148
2d
N.W.2d 721
see
Katz,
Smith v.
No.
(S.
op.
1998);
96-1998,
at 9
Ct.
Wirth,
June
93 Wis.
judicial economy
2d at 443-44. In the
interests
finality
decision,
of this
our
we exercise
discretion
decide
entire case while it is
us.
before
See Carl
Lampert
son &
Yards,
Erickson Builders v.
190 Wis. 2d
(1995); Burger Burger,
650, 656,
¶ 105. The Fourteenth Amendment equal right protection provides "a to be from free invidi- statutory ous discrimination classifications and governmental activity." other McRae, Harris v. process provisions and due and that of the Fourteenth Amend- Thus, analysis equal protection ment. our of the NAACP's argument, provisions two constitutional are as treated equivalent. See id. at 50. (1980). Equal purpose 297, 322 The central
U.S. prevent dis "official conduct Clause is to Protection criminating Washington Davis, v. on the basis of race." (1976). To discrimination 229, 239 show racial 426 U.S. plaintiff guarantee, show must of this in violation purpose or intent with a that a statute was enacted Arlington Heights 242; see also See id. at discriminate. *55 Corp., Housing Development Metropolitan 429 U.S. v. (1977). Supreme Court has adhered 252, 264-265 desegregation principle cases: "that in to this school predominately predominately black and there are both community of a is not violative schools in alone white Equal Davis, U.S. 240 426 at Protection Clause." the (1973)). (citing Keyes 1, 413 v. School Dist. No. U.S.189 allegations accepting the as true and NAACP's Even construing liberally, Scarpaci v. Milwaukee them see (1980), County, we 663, 669, 292 96 2d N.W.2d 816 support allegations not the NAACP's do conclude that equal protection. of a violation of claim challenge, has not In its facial NAACP reasonably alleged, infer, that the State and we cannot on the basis of race with an intent to discriminate acted Although MPCP. the State enacted amended when purposes generally that the concludes the NAACP expanded segregation to of the MPCP were include allege MPS, not that the in the the NAACP does races to the amended MPCP with intent State enacted allege race. does the NAACP based on Nor discriminate participating the amended schools program of race or excluded students on the basis have way any intentionally other discriminated have against on students based race.29 argument, relied heav In its and at the NAACP brief oral (1973). Harrison, 413 The claims ily v. U.S. on Norwood distinguishable from made in Norwood are those made that, 107. We note on face, its the amended explained, MPCP is race-neutral. As we have group amended MPCP students, allows a chosen regard race, without to attend schools of their choice. requires participat- Furthermore, ing the amended MPCP comply schools to with anti-discrimination provisions § U.S.C. 2000d. See Wis. Stat. 119.23(2)(a)4. § participating In addition, the schools required program are to select students on a random 119.23(3)(a). basis. See id. at presented by
¶ 108. None of the facts
the NAACP
support a claim that the State enacted the amended
purpose
MPCP
an
with
intent or
to discriminate based
Relying solely
makeup
on race.
on the racial
ofthe MPS
likely
participate
and of the
schools
in the
alleges
MPCP,
amended
the NAACP
that the
equal protection
likely
violates
because its
effect
bewill
segregate
recognize
to further
the MPS. We
that an
discriminatory purpose may
invidious
be inferred from
totality
including
facts,
of the relevant
the fact that
*56
challenged
may,
heavily
effect,
law
in
bear more
on
one race than another.
Davis,
We,
See
903
case. In its
inference in this
no such
however, can make
challenge,
facts suf-
cannot establish
the NAACP
facial
had a
MPCP has
that
the amended
ficient to show
provi-
impact
disproportionate
or that its
on one race
invidiously
applied
so as
been
sions have
current
race. The NAACP's
on the basis of
discriminate
challenge
case is limited to
review this
and our
facial
stipulated
From
facts.
face and to the
the statute on its
has
that the NAACP
us, we conclude
the record before
sufficiently alleged
State enacted
that
not
discriminatory intent neces-
MPCP with
amended
sary
protection
equal
Davis,
claim. See
to establish an
are not pled Co., Tel. See State v. Wisconsin the NAACP. (1979). find that We 702, 720, 284 N.W.2d Wis. 2d the NAACP under which there are no circumstances challenge equal protection prevail facial can its conclude that MPCP. We therefore the amended of law dismissed as a matter claim must be NAACP's upon relief can be state a claim which for failure to granted. v. Cam 748; 2d at Evans Voss, 162 Wis. (1985). 421, 426, 360 N.W.2d eron, 2dWis. Severability VII. MPCP the amended 110. Since we find scrutiny passes in all the issues constitutional presented consider court, we need not before this provisions from Wis. are severable whether individual Stat. 119.23. Injunction
VIII. *57 granted August 25,1995, court an On this portions injunction enjoining implementation of all proceedings, the amended MPCP. After further the cir- injunction portions cuit court this dissolved for all program except respect partic- the amended ipation with to the private of sectarian Since we now schools.. conclude that the amended is constitutional entirety, in its injunction we order the circuit court to dissolve portions
for all of the amended MPCP. injunction against ¶ 112. When first issued implementation MPCP, of the amended thousands of eligible children who were for full tuition under the program already begun attending had enrolled in or private having their new schools. Faced with to remove many parents their children from their schools, chosen accepted private keep assistance to their children in injunction many those schools. lifted, When is longer eligible participate these no students will be they already in the amended MPCP because are attending schools. See Wis. Stat. 119.23(2)(a)2. ineligibility Their is no fault of their solely consequence litiga- own, but instead is of this certainly among tion. Those children are the intended program. require of this beneficiaries. To them to year eligibility return to MPS for a to reestablish would manifestly inequitáble disruptive be to the importantly, schools, schools, and most to the children themselves. dissolving injunction,
¶ 113. we therefore disability injunction placed remove the that the on the respect children, school so that with to educational sta- eligibility tus, under the amended MPCP is determined injunction on the date the was issued.
IX. Conclusion upon ¶ conclusion, our review based 114. stipulated facts, and the now us the statute before both MPCP does not violate amended conclude that the we Amendment; the First Clause of the Establishment Const, § § § X, 3; or the I, IV, 18; art. art. 18; art. Wis. purpose therefore doctrine. We Wisconsin appeals remand court of the decision of the reverse grant court with directions the matter to the circuit summary judgment, to dismiss motion for the State's equal protection claim, dis- and to facial the NAACP's barring implementation injunction of the solve MPCP. amended appeals
By of the court of the Court.—The decision circuit is remanded to the reversed, and the cause is proceedings consistent with this for further court opinion. ¶ BRADLEY, J. did not 115. ANN WALSH participate. {dissenting). BABLITCH, J. A. 116. WILLIAM majority appeals, of the court of see conclude,
I as did a (Ct. 2d 570 N.W.2d Jackson v. Benson Wis. App. 1997), Parental the amended Milwaukee Program prohibition contained Choice violates Const, expenditures against I, 18, state art. religious For the societies or seminaries. the benefit respectfully I dissent. therein, recited reasons Chief Justice I am authorized to state that Shirley joins S. this dissent. Abrahamson