Jackson v. Benson

Evans, Harris, Warner Jennifer Wendell Jackson, Kennedy, Serotta, Reverend Andrew Rabbi Isaac Ceil Mueller, Libber, Ann Father Thomas J. Reverend Mary Gregg, Brewer, Beaman, John Diane Colleen N. Penny Philip Morris, Morse, Kathleen Jones and Plaintiffs-Respondents,

Jones,

v. Superintendent Instruction, John T. of Public Benson, Doyle, Department of Instruction and James E. Public Defendants-Appellants,† Gray, Cynthia Angela Marquelle Miller, Miller, Zachery Gray, George Richardson, Richardson, Shon Henry, Faye Henry, Reigne Barrett, Valerie Latrisha Williams, Barrett, Williams, Senton Clintrai Candice Choice, Giles, Giles, Parents For School Pilar Sharon Cooley, Vogel, Helsper, Kate Gonzalez, Dinah Julie Blong Yang, Crockett, Yolanda Lassiter Gail Intervenors-Defendants-Appellants. Knox, Jeanine † its Association, Teachers' Education Milwaukee Lengyel, President, Howard, Charles Michael M. Tracy Adams, Public Lucier, Donald Milwaukee Supervisors Council, Inc., Administrators and Schools granted. review †Petition People Director, Gobel, its Executive Carl A. for the Way, by

American its Executive Vice President and Legal Minceberg, Director, Drew, Elliott M. John Riley, Endress, Susan Robertson, Richard Jeanette Knox, Zamudio, Johnson, Vincent Bertha James Sally Mills, Robert Ullman and F. Plaintiffs- Respondents, v. Superintendent John T. Department Instruction, of Public Benson, Doyle, of Public Instruction and James E. Defendants-Appellants,† Marquelle Cynthia Angela Gray, Miller, Miller, Zachery Gray, George Richardson, Shon Richardson, Henry, Faye Henry, Reigne Latrisha Barrett, Valerie Barrett, Williams, Candice Williams, Senton Clintrai Giles, Giles, Sharon Choice, Parents For School Pilar Cooley, Vogel, Helsper, Gonzalez, Dinah Julie Kate Blong Yang, Crockett, Gail Yolanda Lassiter and Intervenors-Defendants-Appellants. Knox, Jeanine National Association the Advancement Chaney, Parker, Felmers O. Lois on People, Colored behalf of child, herself and her minor Hobbs, Rashaan Scott,

Derrick D. on behalf of himself and his minor children, Deresia C.A. Scott and Desmond Scott, L.J. Cherry,

Constance J. on behalf of herself and her granted. to review †Petition Monique Branch, Branch, Monica S. children, J. minor Plaintiffs-Respondents, Branch, A. and William

v. Superintendent of Public Instruction John T. Benson, capacity, Defendant- Wisconsin, in his official

Appellant.† Appeals Court of 22, 1997. August argument July 97-0270. Oral No. Decided 22, 1997. 407.) (Also reported in 570 N.W.2d granted. to review †Petition defendants-appellants,

On behalf of the John T. Benson, al., et the cause was submitted on the briefs of Jay Ullyot P. Lefkowitz, Theodore W. and Paul D. Washington, Clement of & Kirkland Ellis of Murphy D.C. and Edward S. Desmond, Marion of & S.C. of argument by Madison. Oral Edward S. Marion. intervenors-defendants-appel- On behalf of the Marquelle lants, Miller, al., et the cause was submitted Brown-Perry on the briefs ofLauren ofHicks & Brown- Perry Law Office, S.C. of Madison and Richard P. Legal Hutchison of Landmark Foundation of Kansas City, argument by Mo. Oral Richard P. Hutchison. intervenors-defendants-appel-

On behalf of the lants, Choice, Parents for School al., et the cause was Bolick, submitted on the briefs of Clint William H. Mel- III lor and Nicole S. Garnett of the Institute Justice Washington, Stephen Hurley Hurley, D.C.; P. oí Bur- Milliken, & Madison; ish S.C. of and Michael D. Dean argument of Waukesha. Oral Clint Bolick. plaintiffs-respondents, On behalf of the Warner Jackson, al., et the cause was submitted on the brief of Shapiro of York, N.Y., on behalf of New R.

Steven Foundation; K. Steven Union American Civil Liberties Washington, Americans D.C., behalf of on of Green Separation State; M. and Peter of Church for United Koneazny of American Civil Milwaukee, on behalf of and Foundation, Inc.; Liberties Union ofWisconsin Jef- frey & E. Cohen of LaFollette and Melanie J. Kassel argument by Jeffrey Sinykin J. Oral of Madison. Kassel. plaintiffs-respondents, Milwau-

On behalf Association, al., et the cause kee Teachers' Education Mincherg and of Elliot M. on the brief was submitted Washington, D.C., on behalf of Peo- of Judith Schaeffer Way; ple and John Robert H. Chanin the American for Washington, Kaiser, P.L.L.C. of of & M. West Bredhoff Myers, Timothy Shneidman, Dow- E. Hawks of D.C.; ling Milwaukee, of of on behalf & Blumenfield Bruce Meredith and Teachers; of Federation Wisconsin Edu- Madison, of Wisconsin of on behalf Chris Galinat Perry Richard P. Council; and cation Association Perry, Quindel & ofMilwaukee. Saks of Lerner Richard by argument H. Chanin. Robert Oral plaintiffs-respondents, National On behalf of the People, Colored et the Advancement of Association for by Hall, James H. al., cause submitted on brief was Hall, & Charne of Milwaukee Wil- Jr. of Patterson Lynch Lynch H. Law William liam H. Offices argument by Hall, Jr. James H. Milwaukee. Oral submitted Bradden Brief of amicus curiae was Godfrey Kahn, Robert L. & S.C. and C. Backer of Brady Donahue, Weiss, Berzowski, & both of Gordon the Milwaukee Jewish Council Milwaukee, on behalf of Community Jewish Relations and Wisconsin Conference.

Brief of amicus curiae was submitted Marc D. Stern and Lois C. Waldman of York, NY., New on Congress behalf of the American Jewish and Anti-Def- League. amation

Brief of amicus curiae was submitted K. Scott Wagner Lein, oí Hale & S.C. of Milwaukee; and James Geoly, Ryan C. D. Meade and Kevin R. Gustafson Chicago, II., on behalf of the Center for Education Legislative Exchange Reform, American Council, CEO America, CEO Central Florida, CEO Connecticut, Change, CEOS for Educational Citizens for Educa- Reform, tional Educational Freedom Foundation, Policy James Madison Institute, the Jewish Center, (Washington, the "I Have a Dream" Foundation D.C. Chapter), Liberty Institute for Affairs, Public Counsel, Pennsylvania Maine Coalition, School Choice Manu- facturers Association, Alliance, Reach South Carolina Policy Council, Texans for School Choice, and United New Yorkers for Choice. Dykman, Roggensack Deininger,

Before P.J., JJ.

DEININGER, J. The Milwaukee Parental Program, Choice 119.23, as amended Stats., permits up §§ 4002-4009, Wis. Act to 15% of the membership student of the Milwaukee Public School (MPS) system schools, attend both sectarian expense. brought and nonsectarian, at state Plaintiffs claiming program these actions that the amended vio- lates the First Amendment of the U.S. Constitution provisions and various of the Wisconsin Constitution. appeal Defendants the trial court's order which granted plaintiffs' summary judgment motions for declared the amended unconstitutional. program vio- amended that the we conclude Because I, Article section clause of benefit lates Constitution,1 we affirm. of the Wisconsin

BACKGROUND stipulated parties The facts. to certain have The summary following background from the is taken including thereto, agreed upon exhibits attached facts, respect matters, from the trial certain and with and order. decision court's Original Choice Milwaukee Parental The a. Program legislature Parental the Milwaukee enacted part Program, § as a of 1989 Wis. 119.23,

Choice Stats., permitted program in amended Act 336. As "membership"2 pupil up attend ofMPS to to 1.5%of charge, any private school located" nonsectarian "at no eligibility subject City to certain Milwaukee, in the requirements. of membership pupil MPS was of The total year. Approxi- 98,000 for the 1995-96 school more than participate mately pupils permitted to were original program, below, as discuss and we under the eligible pupils approximately for 15,000 would be Eligibility subsequently program in 1995. amended as pupils program participation to in the limited times income does not exceed 1.75 whose from families poverty federal level. I, provides 18 of the Wisconsin Constitution Article section treasury for any money drawn from the part: "[N]or in shall be societies, theological religious or or the benefit seminaries." 121.004(5), "membership" is defined School district Stats. private accepting pro-

A school students under the gram notify Superintendent must the State of Public participate by May its Instruction of previous intent to year. Additionally, 1st of the private school a school accepting program comply students under the must with state and federal laws, anti-discrimination safety provisions public apply with health and that 49%) (originally pri- schools. Not more than of a 65% may pupils vate school’s enrollment consist attending private original pro- school under the gram. participation program In order to continue in the years, subsequent private satisfy a school must cer- performance assuring tain criteria, at least a percentage pupils participating certain in the grade year, one level advance each maintain a average signifi- rate, certain attendance demonstrate progress, parent cant academic meet involvement by criteria established the school. accepting original

In return for under students program, directly private payments school receives equal per from the State to the amount of aid state student MPS would be entitled under state which school aid distribution formulas. The aid amount was approximately per year in the

$2500 student initial program. The amount of state aid MPS received payments is reduced the amount made program. schools under the original program called for monitor- extensive

ing, reporting regarding program evaluation, and the Superinten- participants. Specifically, and its the State required dent of Instruction submit an Public was to report legislature regarding annual to the student discipline, parental achievement, attendance, and compared program the involvement for students in as original pupils to in MPS district schools. The enrolled 9 Superintendent to further directed the State statute pupils program performance the and of monitor empowered more financial him or her to conduct one or program. performance the The evaluation audits of and perform legislative also to a audit bureau was directed report performance audit financial legislature by January 15,1995.

During year, approximately school 1994-95 approximately pupils attended twelve nonsec- 800 original program. private under the For tarian schools pupils approximately 1995-96, there were attending approximately pri- nonsectarian seventeen program. under the vate schools original program The withstood a state constitu- challenge 2d Grover, v. 166 Wis. tional Davis (1992). supreme court determined 480 N.W.2d original program experiment "was an intended that the perceived problem inadequate a educa- to address disadvantaged opportunities children." at Id. tional (citation omitted). It concluded 530, 480 N.W.2d at original program did not that the enactment of the "private meaning or local bill" within the constitute IV, Constitution; Article section 18 of Wisconsin participating in the schools purposes did not constitute "district schools" for uniformity clause," X, school Article section 3 "district Constitution; and that sufficient safe- Wisconsin guards providing governmental existed, control and "public program, supervision that the insure purpose doctrine" not violated. was

b. The Amended Milwaukee Parental Choice Program budget bill, Act 27,

In the biennial 1995 Wis. legislature significantly §§ 4002-4009, amended original program. program the Amendments to the following: include the

(1) participating private The limitation that § schools be "nonsectarian" id. was removed. See 4002. (2) pupil participation Allowable was increased eventually pupil 7%, to 15%, of the MPS member- ship. § See id. 4003.

(3) requirement Superinten- The the for State performance report dent's annual evaluation and to the legislature superintendent's deleted, was was as authority perform- to conduct "one or more financial or program. ance evaluation audits" See id. §§ 4007m and 4008m.

(4) change way pay- A was in the made state aid participating private ments to schools is administered. making participating Instead of aid state stu- payable directly private dents school payable attendance, the aid is made to be the stu- "parent guardian." Department dent's or of Public (DPI) directed, however, Instruction to "send the "[t]he private parent guard- check to school," or restrictively ian shall endorse the check for the use of private § school." See 4006m. id. (5) placed A limitation was on the amount of the per payment. participating student aid A school will per receive the lesser the MPS student state aid or private "operating per the pupil school's and debt cost service programming"

that is related to educational as § determined DPI. See id. 4006m.

(6) The limitation that no more than 65% of a private may school's enrollment consist of participants repealed. was See id. 4003.

(7) religious activity "opt-out" provision A was "may private require pupil A added. school not attending par- under school this section activity parent any pupil's

ticipate if the private guardian pupil’s or the submits to the teacher pupil request principal that the be a written school's exempt See 4008e. from such activities." id. program greatly expand the The amendments to only the of students are allowed to not participate, number who private number in

but also the of schools may accept City of Milwaukee which now students the private approximately program. are in the There city, approximately thirty-three in the which schools of eighty-nine approximately are are nonsectarian and Approximately pupils 84% of the who sectarian. City private in the of dur- attended schools Milwaukee year ing attended sectarian the 1994-95 school schools. agreed parties upon

Attached to the statement of consisting pages an of of facts is exhibit some excerpts statements, handbooks, from mission and prepared by many of the secta- other written materials participate that indicated an in rian schools intent year. amended for the 1995-96 school materials, statements extracted from these Numerous quoted decision and and the trial court's written eligible order, indicate some of sectarian that overtly religious mission, an and schools have aspects programs their are sectarian of educational teaching subjects. with the secular intertwined representative: following statements are (cid:127) carry out "We believe our school exists to 'go disciples' make

Savior's command 28:19). (Matthew Consequently, our school's for existence to be a tool for primary reason is bringing to faith young souls in Jesus...." (cid:127) "First and foremost Garden Homes Lutheran

Church conducts and maintains a Christian elementary school parents to assist Christian training nurturing in the of their children in the Word of God."

(cid:127) school, "In with keeping purpose of our our taught setting

curriculum is God's Religion only subject, Word. is taught not as a but teachers integrate our have been trained to Word God's across the curriculum.. .. Our cur- offerings riculum Christ place point as the focal study." for all

(cid:127) message taught "The of Jesus in religion is clas- other

ses and curricular areas. . . . Because school, nature a Catholic religion taught daily as part of the curriculum. Catholic are also incorporated values into all other aspects of the curriculum." (cid:127) and "The Bible forms the core center which upon

all . . . All subjects instruction is based. are by taught light a Christian teacher in the of Word, emphasizing God's God's love for men all through Jesus."

(cid:127) all subjects, "We teach the traditional we but differently them

teach a Christian —from perspective." of pupil provided amount state aid to MPS per for the school year approximately 1995-96 was $3667. For the 1996-97 school the MPS aid year, per student amount These sums approximately $4400. was the represent upper payments an limit on amount of per private student schools each the pupil materials record the program. The from secta- many rian indicate that is charge schools tuition hundreds of dollars less than what the schools deem to The par- each student. educating their actual cost

be that: stipulated ties by majority at least a charged

The tuition Superin- that notified private schools sectarian intent Instruction of their of Public tendent during the [program] [a]mended in the participate per- than the school's year is less 1995-96 school less service cost and is and debt pupil operating to MPS. provided state aid per-pupil than the educating incurred for the costs The difference between tui- schools and the sectarian private at the students made generally up parents charged tion affiliated parishes from subsidies congregations. the. that under stipulated further

The parties program: amended sec- participating prohibit State does not

[T]he using funds received schools from tarian appro- the school deems any purpose school for payment including, among things, other priate, affiliated employees expenses of salaries and mission, the religious purchase with the school's with the materials identified literature and other mission, and the maintenance school's religious purposes. used for construction offacilities suspended implementa- which injunction Prior to the 4000 MPS pupils amended some program, tion of the the schools under private to attend had applied program. amended Litigation

c. The

1. The Parties. Jackson, al., Plaintiffs Warner et are citizens and taxpayers plaintiffs of the State of Wisconsin. These parents clergy include of members the from backgrounds, many diverse and ethnic of They whom have children enrolled the MPS. com- challenging program menced an action the amended respect with inclusion of sectarian plaintiffs schools. These will be referred as the Jack- plaintiffs. son

Plaintiffs Milwaukee Teachers' Education Associ- employees ation, al., et consist of teachers and other parents pupils MPS, enrolled in orMPS another public system Wisconsin, school a member of the clergy, organizations represent and various that plaintiffs. plaintiffs individual These commenced a separate challenging provisions action of the program, amended and their action was consolidated plaintiffs' plaintiffs with Jackson action. These will plaintiffs. be identified as the MTEA Plaintiffs National Association for the Advance- People, separate al., later, ment of filed Colored et challenging program. action the amended The NAACP plaintiffs challenges raised some of the same as the plaintiff groups, brought first two an additional but claim equal protection provisions the amended also violates the United States and Wisconsin Constitutions. Their action consoli- was although actions, first dated with the proceedings two further equal protection stayed on claim were plaintiffs the trial court. These will be identified as plaintiffs. NAACP Superintendent John Defendant is the Benson Public Instruction for the State of Wisconsin. Defen- (DPI) Department of dant Public Instruction is the agency through administrative State which funding Program is Parental Choice for the Milwaukee supervi- delegated to which are various directed, and sory responsibilities respect to with and administrative program. as the These defendants be identified the will State defendants.

Intervening Marquelle al., Miller, et defendants par- pupils, parents pupils, are and the who seek to They granted ticipate program. in the amended were participate in the leave to intervene and as defendants defending program action. In addition to the amended against challenges the the raised in consolidated rights actions, Miller to defendants claim their freely religions their under the United States exercise abridged if the and Constitutions would be Wisconsin program These amendments to the are invalidated. as defendants will be identified the Miller defendants. Polly representative is a to the Annette Williams Assembly District, for Tenth Wisconsin State participants program numerous in the and which potential participants reside. amended Representative original pro- Williams authored gram and certain of the 1995 amendments at issue organization here. Choice cre- Parents School is an public expansion support ated to mobilize for an group program. with Also included as intervenors this parents pupils participate are seek in the who program. parties granted These leave to amended were as the intervene as defendants will be referred to PSC defendants. necessary identify argu-

Except where issues or particular unique party, plaintiffs in the ments all collectively, to, referred as consolidated actions will be challengers, and all defendants as State. History. 2. Procedural plaintiffs The Jackson MTEA filed the two original August supreme actions in 1995. The court granted original then leave to commence an action in preliminary injunction stay- court that and entered ing implementation program, the of the amended specifying pre-1995 provisions original that the program argument, Following were unaffected. oral supreme the court announced that was it deadlocked issues, three three on the constitutional and it dis- petition, effectively remanding missed the the case to County proceedings. the Dane Circuit Court for further Following partially remand, the trial court lifted the preliminary injunction, thereby allowing all ofthe 1995 implemented except participation by amendments to be sectarian schools. parties summary judg-

The filed cross-motions for ment. The trial court denied the State's motions for summary judgment; granted challengers' motions summary judgment; and "the ordered State of Wis- consin ... to terminate the amended Milwaukee Program," stayed Parental Choice but its order until year. Specifically, the close of the school 1996-97 program trial court that concluded the amended vio- I, lates Article 18 of the section Wisconsin Constitution primary religious because its effect "is to benefit elementary secondary missions of the taxpayers compels it schools because Wisconsin places support worship without their consent." The program trial court also ruled that the amended was a private or local had bill that been enacted violation IV, restrictions of Article 18 of the section Wis- consin Constitution.3 The court concluded further private may "No bill- passed legis or local which be subject, lature shall embrace more than one and that shall be IV, expressed in the 18. title." Wis. art. Const. program, as it included sectarian insofar

the amended purpose public the Wisconsin schools, violates rejected Finally, claim that the trial court doctrine. expanded program X, Article section violates The trial court did not Constitution.4 the Wisconsin it invali- claim because reach the First Amendment state constitutional the amended on dated grounds. appeals the terminat- trial court's order State

ing program. the amended

ANALYSIS correcting are court. State v. Schu We an error 672, macher, 388, 407, 144 2d 424 N.W.2d 679 Wis. (1988). pass judgment the wisdom Our is not on role public the as an instrument of amended opportunities policy improving aimed at educational City children low families in the from income primarily develop role Milwaukee. is it our Nor regarding constitutional law declare Wisconsin argued by parties in this Cook matters case. See v. Cook, 166, 189-90, 246, 208 2d N.W.2d Wis. 560 (1997). responsibility Rather, our is to deter 255-56 that mine whether the trial court reached a result Constitution, text of consistent with the the Wisconsin necessary, Constitution, if and with and existing precedents U.S.

interpreting provisions at court such issue. We conclude the trial reached a result. legislature provide "The shall law for the establishment schools, nearly practica

of district which shall be as uniform as ble, and no shall be allowed ... sectarian instruction therein X, 3. ...." Wis. Const. art. parties requested expedite

The that we considera- appeal, agreed parties tion of this and we do so. The argued shortly briefing completed, the case after was and this was issued decision within month follow- ing parties argument. oral The which submitted briefs pages, appen- including cumulate to more than 365 not dices and the briefs of amici In curiae. order to honor timely dispose appeal, our commitment to of this we specifically argument cannot address each raised in challengers the various briefs. To the extent that the arguments have raised issues not this addressed opinion, they necessary we have concluded that are not any disposition. arguments to our To the extent that unaddressed, raised the State remain we have con- arguments persuade cluded that those do not us that a disposition different is warranted.

a. Standard Review grants summary judgment

The order under review stipulated constitutionality on facts. The issue is the appeal, ques- a therefore, state statute. This involves Post, tions of law which we decide de State novo. v. (1995). 279, 301, Wis. 2d 541 N.W.2d legislative enjoys presump- enactment under review constitutionality, although tion of is one issue challengers of law, the are deemed to bear burden prove" "beyond "to statute a rea- unconstitutional omitted.) (Citation sonable doubt." Id. argues present

The mount a State that actions challenge program "facial" to the amended because challengers seek have the 1995 amendments just enjoined § 119.23, Stats., toto, in rather than in citing applications. Thus, State, certain United (1987), argues Salerno, 739, States v. 481 U.S. 745 unconstitutionality challengers' is to burden show program applications, amended in all otherwise the place" it to the extent that has constitu- "must be left except applications. However, for a footnote tional constitutionally might suggesting attend that students payment private for a where the state sectarian schools program not exceed the the amended does student in non-program charged State student, for tuition a us to not rationale that would allow has articulated a declare, record, that the amended on this place" applications. "must be left as some language ex The certain in State State's reliance on (Nusbaum II), 314, 2d v. Nusbaum Wis. rel. Warren (1974), support of its 322-23, 577, 219 N.W.2d validity" argument supreme misplaced. "partial is The under commented that constitutional infirmities court "may there valid arise" and would the statute held Id. But have "to be determined on ... individual facts." the court's conclusion that this statement follows required posture it to it, one, case like before this analyze challenge to the the claims made as facial statute: plead-

Since action this court on the this is before facts, ings stipulation our is decision can necessarily limited thereto. Under the facts we only [the statute] is determine whether unconstitu- face. tional on its

Id. at 219 N.W.2d at 582. specific program quite is to the The amended as may participate, fund- students and schools that how ing paid, and what restrictions and determined apply. agreed upon facts, attach- limitations ments, with have describe the sectarian schools that participate. an intent to The essential contours stated program of the amended are well in established constitutionality program record, and it is the as described in this record that we must determine. Had legislature program wished to limit the amended applications certain it so, could have done but did not. supreme only Like the II, court in Nusbaum we can program evaluate the as enacted and as described stipulated record before us. I, b. Article section 18 the Wisconsin Constitution begin by analyzing pro-

We whether the amended gram prohibition against violates state expenditures religious for the benefit of societies or I, seminaries contained Article section 18 of the Wis- begin consin Constitution. We issue, first, with this major part because the trial court devoted a of its anal- ysis to this issue in its order, decision and and the parties argu- have done likewise in their briefs and oral beginning analysis ments Second, to this court. our with the state constitutional issue enhances the econ- omy of our effort. The Establishment Clause of the flexibility interpre- First Amendment allows "more Reynolds tation" than I, does Article 18. State ex rel. (Reynolds), v. Nusbaum 148, 165, 17 Wis. 2d (1962). 761, Thus, N.W.2d a conclusion that the sepa- §I, fails under Article 18 will obviate a analysis. Miller, rate First Amendment See State v. (1996). By 56, 62-66, 2d Wis. 549 N.W.2d 238-39 program passes token, the same a conclusion that the muster under the state benefit clause would compel respect the same conclusion with to the Estab- lishment Amendment, little, Clause of the First with if any, analysis being required. additional provisions

Notwithstanding of the fact that by supreme § our court I, 18 have been deemed Article counterparts in the than their federal to be less flexible argues Amendment, the State that we must First juris- apply import Clause federal Establishment and analysis provisions. prudence If to our of the Wisconsin that we must arrive at the so, do the State claims we amended violates neither conclusion that the primary effect is to enhance constitution because its disadvantaged opportunities students, for educational any religion indirect and incidental. to is benefit may proposition quarrel that we háve no with the We analyses by guidance employed the United for to look Supreme cases, in Establishment Clause States Court however: by fully cannot be illuminated questions

Some alone, may light jurisprudence of federal but the dictates of the require according examination expansive protections more envisioned our state constitution.

Miller, 2d at at 239. Wis. N.W.2d begin by reviewing I, thus the text of Article

We supreme interpre- proceed court's 18, next to our authority provisions. tations of its Even before other is apparent consulted, that the authors of the Wis- it specifically consin Constitution intended to much more may curtail what the State do in its interactions with religion Rights. than did the drafters of the Bill of In respecting "make no law an lieu of the curt directive to religion, prohibiting or the free exer- establishment Amendment, cise thereof' contained in the First provides state as follows: text The right every person worship Almighty God according to the dictates of conscience shall never infringed; any be nor shall person compelled be attend, support any erect or place worship, or to any ministry, consent; maintain without nor shall any of, with, control or interference rights permitted, any conscience be or preference given be any religious law to establishments or modes of any. money worship; nor shall be drawn from treasury relig- societies, benefitof theological ious or seminaries. (emphasis supplied). §I, Wis. Const. art. language goes significantly

That this further than prohibition support the First Amendment in its state of religion or benefit for has been settled law since State ex rel. v.Weiss District Board School District No. of Eight Edgerton, (1890), 177, 76 Wis. 44 N.W. 967 of forty years adoption decided some after the of the Wis- consin Constitution:

Wisconsin, as one of the later states admitted Union, into the having experience before it the others, probably in view of its heterogeneous has, law, population, organic . . . in her probably complete furnished a more any preference bar to for, sect, against, any religious or discrimination organization society any than in other state the Union. (The quotation 207-08,

Id. at 44 N.W. at 977. is taken concurring opinion Cassoday, J., from a to whom the opinion delegated addressing court's the task of Article represents opinion §I, 18. It "thus the of the court." 769.) Reynolds, n.3, 17 Wis. 2d at 165 115 N.W.2d at principle passage The enunciated in this from Weiss is today century ago, having as valid as it was a been Reynolds only quoted approval court in not with again year Miller, 65, 2d at last 202 Wis. 1962, but 549 N.W.2d at 239. King reading that

The Weiss court concluded City attending students a James version of the Bible to "religious Edgerton public bene- school violated interpreted §I, Article 18. The court fit" clause of "seminary" a in the state constitution to mean as used that: school, and it concluded further drawing any is the thing prohibited any money treasury relig- from the for the benefit of reading If the stated of the Bible ious school. sense, only, a is not in a limited school as text-book instruction, is, manifestly as it worship, but also that it is escape then there is no from the conclusion instruction; money so religious and hence treasury state was for the benefit of drawn from the school, of this clause within meaning of the constitution. (The court also

Weiss, 215, 76 Wis. at N.W. at 980. readings "compelled violated the held that Bible support" § I, we discuss clause of Article which against prohibition secta- below, X, and the Article schools.) in the district See id. at rian instruction 203-16, 44 N.W. at 976-80. reading Edgerton

If to students in the Pub- Bible "religious seminary," it into a lic School converted money improperly the benefit of which had been drawn treasury, fail to see how a different from the state we may respect pay- conclusion be reached with to state under ments received sectarian schools religious many program. of amended The missions of expressed, purposeful schools, and infusion of these religion curricula, into their make them semi- 24 meaning naries within the I, of Article 18. See Reynolds, (pri- 17 156, Wis. 2d at 115 N.W.2d at 765 mary secondary operated by religious schools organizations groups, relig- or sectarian where some seminaries"). given, "religious ious instruction is are holding Unless the Weiss has been narrowed or aban- doned, or unless the fact that state checks sent to program sectarian schools under the amended are payable parents participating made to the students compelled by mandates a different result, we are Weiss program. to invalidate the amended As we discuss analysis below, §I, we conclude that the Article 18 good law, Weiss is still and that the amended convincingly distinguished. cannot be Reynolds Our conclusion is fortified State ex rel. (1962). Nusbaum, v. 148, Wis. 2d 115 N.W.2d 761 supreme constitutionality The court there reviewed the require public of a state law "to certain school boards to transportation nonpublic pupils furnish school require payment ... of state aids to these school transportation." districts on account of such 150, Id. at Supreme previ 115 N.W.2d at 762. The U.S. Court had ously Jersey provision against sustained a similar New challenge. a First Amendment See v. Bd. Everson (1947). Ewing, supreme Educ. court, 330 U.S. expressly rejected "adopt however, an invitation to [Article 18] §I, construction of of our constitution [Everson placed upon" court] which the the Establish Reynolds, ment Clause of the First Amendment. Wis. 2d at Instead, court, 115 N.W.2d at 769. relying part provision Weiss, on concluded that the public transportation funds for the of students attend ing private, §I, sectarian schools violated Article 18. 165-66, 115 Id. at 770. N.W.2d at Reynolds

Although referred the law reviewed stipu only pupils attending "nonpublic schools," to allowed it to conclude that lated facts before the court private from the act schools which stand to benefit "the parochial schools" and that "the benefit con are the reality is in one confined to those ferred operate parochial groups 158, 115 schools."Id. at which can be said of the amended N.W.2d at 766. The same pri program Act 27. Over under 1995 Wis. 70% program eligible are schools for the amended vate thirty-three eligi The nonsectarian schools sectarian. participate would have ble to in the amended eligible original program prior under the been Act 27. Whatever benefit to enactment of 1995 Wis. the amendments in the schools is conferred reality religious groups "in to those Act, is one confined eighty-nine operate" which sectarian schools eligible participate passage as a result of the became program. of the amended Id. public Reynolds funds involved in were not to directly paid schools, sectarian or even to these

be by way payments parents of restricted to the schools attending simply pupils Rather, the directed them. law pri public provide transportation school districts to "regular approved students, routes vate school via public public bus," for the they school to "the school which n.1, are entitled to attend." Id. at 153 115 N.W.2d 40.53(1), (quoting at 763 as amended Laws Stats., 648). Reynolds Nonetheless, court ch. only found a benefit to not those sectarian schools that paying transportation then for the of their stu were generally, dents, schools, but also to sectarian which "gain through stating enrollment," stood to increased that "an increase of enrollment is a benefit to these parochial 156-57, schools." Id. at at N.W.2d (citations omitted). partici-

It seems clear that the sectarian schools pating program experience in the amended will Except grade increased enrollment. for students below may only participate pro- 4, students in the amended gram they previously attending private if were not program. schools other than under Section 119.23(2)(a)2, 27, as amended 1995 Wis. Act Stats., § 15,000 4002. The increase from 1500 to in the number pupils participate, having allowed to with some 4000 already applied participation prior suspen- for to the implementation program, sion of of the amended virtually guarantees many eighty-nine that sec- eligible participate tarian schools the amended program experience will enrollment increases. significant

More than increases, enrollment how- ever, is the benefit sectarian schools derive from the they receipt may expend any of state funds which for purpose. sectarian or nonsectarian educational These payments Reynolds, cannot, unrestricted under be anything deemed other than a benefit to the sectarian participating program. schools in the amended See also (Nusbaum I), State ex rel. Warren v. Nusbaum 55 Wis. (1972) (to 316, 650, valid, 2d 198 N.W.2d be provide payments statute must that state to sectarian education). university only used for secular The be ben- efit accrues whether the amount a sectarian school pro- receives for each student enrolled via the amended gram charged is less than or more than the tuition non-program case, course, In students. the latter an greater religious organiza- even benefit accrues to the operating tion the school since the amount of provide subsidization it must to the school is less for a program non-program student than for students. argues if it is ines- however, that even State, "religious

capable are benefited seminaries" treasury money expenditure drawn from the state upheld program, it must still be under the amended subsequent precedents, federal state and because Reynolds, is unconstitu- it clear that the make "primary only effect" if a benefit is the tional following program. cites the The State of the amended support argument: passage in of its [Article read has held that"... we cannot This court encompass I, being prohibitive so as not 18] as applicability test. ..." The of the primary-effect question crucial "[t]he test is to make primary-effect benefit accrues to a . . . not whether some legislative pro- of the consequence institution as a primary or effect gram, principal but whether its religion." advances at I, 333, 2d at 198 N.W.2d 659

Nusbaum 55 Wis. (quoting Reuter, 201, 44 Wis. 2d State ex rel. Warren v. (1969) 790, 802 and Tilton v. Richard 227, 170 N.W.2d (1971) (footnotes omitted)). The son, 672, 679 403 U.S. argument undermined at the out State's is somewhat applying "primary effect" that, set in even after I invalidated the enactment test, the Nusbaum court pur acknowledged The court the secular under review. pose legislative make dental education of a act to held the residents. The court available to Wisconsin under the U.S. and Wis Act was unconstitutional both Constitutions, however, the law did not consin because per-student paid application of the aid restrict the University purposes. Marquette Id. at to secular at 658-61. 332-33, 336-37, 198 N.W.2d premise accept that, in Nonetheless, we the State's reviewing program §I, 18, Article the amended under may, perhaps must, even consult United States we Supreme applying "primary Court cases effect" parts is the three test. This test second of of the "Lemon test":

First, legislative the statute must have a secular second, purpose; principal primary its effect must be one that neither nor inhibits religion, advances finally, the statute must not foster "an excessive government entanglement religion." with (1971) (cita- Kurtzman, 602, Lemon v. 403 U.S. 612-13 omitted); quoted II, source tion see Nusbaum 322, Wis. 2d at 219 N.W.2d at 582. many relig

Here, as Establishment Clause and purpose cases, ious benefit clause the secular program virtually purpose amended conceded. expand opportunities is to educational for City from income families in the of Mil students low Davis, 530, See 166 Wis. 2d at 480 N.W.2d at waukee. argues party appeal legisla 470. No on this that the money "primary purpose" ture's was to funnel from the treasury Milwaukee; to sectarian schools in state but being prevent this does not such a result from deemed program. "primary effect" of amended Committee Religious Liberty Nyquist, v. Pub. Educ. and (1973) legislative purpose (proper does U.S. scrutiny if it has "a not immunize act from further religion). primary effect" to advance Supreme Nyquist Court in invalidated three The (1) provisions that: made direct of a New York law secondary money private elementary grants to (2) par- repair facilities; for maintenance and schools parents tially for tuition costs reimbursed low income (3) attending private schools; and for their children parents provided tax deductions or credits to other attending private schools. Id. at 796-98. The children program for intended New York tuition reimbursement closely parallels pro- families the amended low income gram The concluded that this here under review. Court part "primary of the New York law failed effect" though parents test, state funds were sent to even directly "great major- private schools, instead of ity" (85%) of which were sectarian. Id. at 783. parents aid Transmittal of state via was only many among deemed "one factors to be consid- immunity" provide "per ered" and did not se to the program. at Id. 781. Nyquist Court declined to make what it judgment[ ]" "metaphysical

labeled a as to whether "the 'primary' program effect" of the tuition reimbursement religion" promote "legitimate was to "subsidize or to objectives." supplied). (emphasis at secular Id. 783 n.39 "primary Rather, the Court concluded that the effect" required only reviewing test that a court "ascertain pro [a 'primary' found have a effect to whether law end] legitimate mote some also has the direct and advancing religion." immediate effect of Id. The Court concluded that the tuition reimbursement failed test:

Indeed, precisely it is the function of New York's schools, provide law to assistance to great majority By are sectarian. which reimburs- bill, ing parents portion for a of their tuition State financial seeks relieve their burdens suffi- ciently they to assure that continue to have the option religion-oriented to send their children to purposes schools. And while the other for that perpetuate aid—to a pluralistic educational envi- protect integrity ronment and to the fiscal certainly schools —are unex- public overburdened unmistakably the effect of the aid is ceptionable, support nonpublic, financial for sec- provide desired tarian institutions. omitted). (footnote completing its After

Id. at 783 law, three facets of the New York review of each of the the Court concluded that: has written,

[E]ach, "primary effect as the constitutional religion" advances and offends an establish- prohibition against "respecting laws religion." ment of (emphasis supplied).

Id. at 798 flexibility provides §I, less for Since Article interpretation Clause, than does the Establishment Reynolds, 770, at we 2d at 115 N.W.2d Wis. applied "primary test, as in that the effect" conclude Nyquist, that the not undermine our conclusion does program on state constitu- must be set aside amended program grounds. Participation in the amended tional pupils, private permitted 15,000 to rise to is program participating stand to receive payments. in the schools per upwards Total student state of $4000 program payments could thus under state approach pupil at sectarian million. If attendance $60 percentage program follows the schools under the eligible participate which are secta- schools (over 70%), percentage if it mirrors rian among private school attendance at sectarian schools (84%), City well over $40 in the of Milwaukee students payments secta- could be received million state primary that a effect thus conclude rian schools. We money drawing from the the amended treasury schools. the benefit of state argues, however, The State that federal cases after Nyquist away Nyquist's have moved from broad inter- pretation "primary urges test, of the effect" and it us to follow these later cases. We decline to do so for three present Supreme First, reasons. a member of the Court juris- has described the Court's "Establishment Clause prudence" being "hopeless disarray," as and we do disagree. Rosenberger not v. Rector and Visitors of (1995) (Thomas, Va., Univ. 819, 515 U.S. J., concurring). Second, the cases the State would have us encompass nearly consult do not facts so close to those Nyquist. before us as did See Mueller Allen, v. 463 U.S. (1983) (Minnesota tax deduction for educational by attending public costs incurred students both and non-public schools); Washington Dep't Witters v. (1986) (state Blind, Servs. 474 U.S. 481 voca- for by pursue tional rehabilitation aid used a student to college); vocation at a Christian Zobrest v. (1993) (sign Catalina Foothills School Dist., 509 U.S. 1 language interpreter provided under Individuals with attending Disabilities Education Act to deaf student high school); Rosenberger, sectarian 515 U.S. 819 (1995) (student public university pay fees at used to printing religiously newspaper). oriented student precedents

Third, if we are to look at federal as an interpreting aid in our state constitution, we must con- sult those which consider facts close at hand to the controversy Nyquist before us. is such a case. Even if speculate majority we were to that a current of the U.S. Supreme Nyquist's Court would not endorse treatment primary precedent effect test, the case remains Agostini unless or until it is overruled the Court. See (1997) (if Felton, Supreme v. 117 S. Ct. U.S. precedent application 'appears Court has in a case but" rejected to rest on reasons in some other line of deci- case) controlling sions,'" (quoted court should follow lower omitted). (In Agostini, decided while source Supreme briefing appeal, parties Court this were prior striking decisions down laws New overruled its public Michigan permitted school teach York and provide go schools to ers to into sectarian disadvantaged "supplemental, remedial instruction Agostini at children on a neutral basis." Id. 2016. ruling majority, place prior that a however, left in Michigan program, under which the State utilized employed compensated teachers sectarian schools provide supplemental schools, classes in those certain 2016-17; Clause. Id. at see violated the Establishment (Souter, dissenting); J., and see School also 2019 n.1 Rapids Ball, 373, U.S. 386-87 Dist. Grand v. 473 of (1985) overtly (finding that, risk or sub "a substantial employed by [teachers tly, religious message the convey during expected schools] are sectarian supposedly regular schoolday secular will infuse the school.").) they classes teach after Finally, concluded that note that the trial court we only religious program not violated the amended sup- "compelled §I, 18, but the clause of Article benefit port" critical of the trial The State is clause5 as well. analysis according State, "it because, court's every clause of the benefits turns violation compelled support and clause a violation of the into principle thereby of constitu- violates the fundamental provisions interpretation in a that related tional redundancy." interpreted to avoid document should be provision disagree. interpreting a in a stat- We When 5 attend, any compelled to erect person be "[N]or shall ministry, any with any worship, or to maintain support place of art. 18. consent...." Wis. Const. I, out

33 proper, perhaps constitution, ute or it is even mandatory, language that a court consider the at issue, entire section and even that related sec- of Barnes, 34, 37, tions. See State v. 2dWis. (1985). N.W.2d though "only small of

Even fraction the school [were] reading Edgerton hours devoted" to Bible in the prac- School, Public the Weiss court that the concluded place worship" tice rendered the "a of schoolroom meaning §I, Weiss, within the of Article 18. 76 Wis. at "tax-payers 213, 44 at district, N.W. 979. Since of compelled support were to aid in . .. school," "very the court place worship that was certain" use of the school as a "expressly was forbidden the consti- tution 213-14, of the state." Id. at at N.W. 279. We describing conclude that the materials in the record many missions and methods of eligible of the sectarian schools participate program, in the amended show worthy being of them some are at least as "places worship" Edgerton deemed as was the Public (E.g., School in 1890. "The Bible the core forms upon day center which all instruction is Each based. opened a with devotion followed instruction in study.") Christian And, doctrine and Bible as we have potential noted, the amended creates the generated some million or more in $40 revenues from taxpayers Wisconsin to to flow these sectarian schools. necessary compelled

We not find do it to find in support separate ground clause a and distinct for the reading result reach. clause, we Our of that however, interpretation Weiss, consistent with its lends addi- support tional program to our conclusion that amended I,

violates Article section 18 of the Wisconsin payment money Constitution because it directs the 34 treasury for the benefit of from the state seminaries. program that the amended must be

Our conclusion chiefly from the deletion invalidated derives §27, 4002, of the word "nonsectarian" from Wis. Act 119.23(2)(a), conclude, however, that all Stats. We aspects program, 27, Act of the amended 1995 Wis. Except §§ for a footnote 4002-4009, must be set aside. party reply brief, no has asked in the State defendants' program any part parts amended us to sever or remaining provisions. not, therefore, have from its We pursued separate the various amend treatment of program Act. See Waushara ments to the made County 442, 451, 480 16, 19 N.W.2d v. 166 Wis. 2d Graf, (1992) ordinarily (appellate will not consider or court appeal). specifically raised on Had the decide issues not legislature that the inclusion of sectarian been aware review, it constitutional schools would not withstand may may a ten-fold not have elected to authorize change program, pupil participation in the increase in payments computation and administration percentage participating schools, or eliminate the monitoring caps and certain of enrollment Burlington requirements. Northern, See evaluation City Superior, 564, 580-81, 2d 131 Wis. Inc. v. (1986) (invalid may provisions not be provi- 916, N.W.2d legislature appears intended it severed when entirety not have an and would effective as sions be itself). legislature part Should the valid enacted pupils program allow additional amend the desire to private schools, or to amend the to attend nonsectarian regards, program to do so it should be allowed in other being original beginning slate, clean with a upheld Grover, 2d v. 166 Wis. as in Davis (1992). 480 N.W.2d 460 (Miller Defendants)

c. The Free Exercise Claim The Miller defendants claim that the amended "religious cannot be invalidated because the provided by [amended program] school access by" mandated the Free Exercise Clause of the First They argue original program Amendment. that the vio right freely religion lated their exercise their government public funding because benefit, a created private for attendance at schools, was conferred a "discriminatory by excluding manner" attendance at disagree. sectarian schools. We failWe to see why original program represents any more of a by curtailment the State of the Miller defendants' free rights original exercise than would be the case had the program not been enacted. See Brusca v. Missouri ex (E.D. Supp. rel. State Bd. of Educ., 332 F. Mo. (1972) (state 1971), provisions 'd, 405 U.S. 1050 aff public deny funding fund schools and for sectarian Clause). schools do not violate Free Exercise plaintiffs many As the Jackson brief, note in their programs subject prohibitions state and federal are public religious purposes. on the use of funds for These types of restrictions serve the same function as the original program. "nonsectarian" limitation in the may sympathy, the Nyquist While we have as did court, experienced pay "for the burdens those who must public they support school taxes at the same time that other schools because of the constraints of 'con " Nyquist, science,' 788-89, U.S. at we cannot conclude that the Free Exercise Clause is violated a designed compliance limitation to ensure with the con provide stitutional constraint the State not benefit to institutions. Disposition Remaining

d. Claims We have concluded that the trial court did not err declaring program in that the amended violates Article I, section 18 of the Wisconsin Constitution. Accord- ingly, unnecessary we, court, like the trial find it to challengers' pro- address the claim that the amended gram also violates the Establishment Clause of the By First Amendment. token, the same we decline to plaintiffs' separate address the NAACP claim that the program equal protection amended violates the clauses of the U.S. and Wisconsin Constitutions. The trial stayed equal protection court claim after it ordered the consolidation ofthe NAACP action with those ofthe plaintiffs. plaintiffs Jackson and MTEA The NAACP argued appeal have the claim on this as an alternative ground upon program might which the amended be disposition unnecessary invalidated. Our makes it equal protection arguments. presume address the We plaintiffs permitted carry that the NAACP will be arguments engender forward their should this case further review. (pri-

We also decline to address the IV, Article bill) vate or local claim or the claim that the amended program public purpose violates doctrine, Wisconsin's though even the trial court based its invalidation of the program part amended on these claims. Neither do necessary we find it to review the trial court's conclu- program sion that the amended X, survives an Article ("district challenge § 3 schools" to be uniform and free instruction). of secular Each of these claims was made regarding original program rejected and all were Grover, Davis v. 2d Wis. 480 N.W.2d 460 (1992). challengers argue significant here that the expansion pupils private in the numbers of schools participate program; allowed to in the amended concomitant increase in state dollars committed to the

program; per- and the elimination of the school centage caps monitoring and of certain enrollment requirements, question combine to call into whether program the amended can continue to withstand the challenges brought in Davis.

We defer consideration of whether amend- ments to the magnitude are of such a nature and supreme court's conclusions in longer applicable program. Davis are no to the Such a necessary, review, should it become is best conducted by the same court that reviewed and sustained the original program. given dispo- here, For us do so our §I, 18, sition under Article to little more would amount rendering advisory opinion. than the of an e. The Dissent history procedural of this case demonstrates good

that there can well be fundamental and faith dis- agreements among judges upon when called to assess constitutionality program. Many, of the amended if precedents upon rely, most, not of the which we parties, others to which we have been referred split supreme are Supreme decisions of our court and of the U.S. Rehnquist

Court. Chief Justice has noted the difficulty Religion jurisprudence which infuses Clause as follows: opinion undoubtedly

Differences of are to be expected when the Court turns to the task of inter- preting meaning Religion of the Clauses of the Amendment, First since previous arising our cases clauses, notes, under these as the Court "have presented perplexing some of the most questions come this before Court."

38 Nyquist, (Rehnquist, dissenting) J., U.S. at 805 760). (quoting majority opinion Justice Powell's at principal why There are three reasons we cannot accept analysis. the dissent's result and First, the dis- analysis largely premise sent's based on the if payments state received a sectarian school under program the amended are limited to a school's incre- relating only program mental costs to the students (and hence, enrolled at the school view, the dissent's being the school is not subsidized for costs it would incurred), otherwise have then the amended violates neither the federal or state constitutions. We agree premise cannot with either the itself or the read- ing provisions of the of 1995 precedent. Act Wis. 27 which it requires as a condition support premise

The dissent finds for its in State ex Johnson, rel. Atwood v. 251, 263-64, Wis. (1919), principally N.W. public purpose which dealt with a challenge

doctrine to the Educational provided Law, Bonus an act which educational assis- returning tance to World IWar veterans. The dissent acknowledges religious that Atwood's treatment of the "lengthy." benefit issue fact, is not Dissent at 70. In entire treatment benefit issue in the conclusory quoted case is confined to the four sentences passage any dissent, in the devoid of citation to or analysis language agree § of the I, of Article 18. We plaintiff groups, with counsel for one of the who at oral argument labeling commented that Atwood as prominence I, "obscure" would overstate its in Article jurisprudence. § 18 proposition prohibitions

Moreover, the that the religious § I, Article 18 are satisfied if a institution is simply reimbursed for costs it would not otherwise purposes incur, with no restrictions as the to applied, is con the reimbursement to which costs precedents trary more which to more recent Wisconsin religious analyze rigorously The benefit issue. the Reynolds enrollment at that increased concluded court public it found to flow from schools, an effect sectarian by transportation funding schools, itself, con to the being had subsidized even if the costs a benefit stituted Reynolds, by previously 17 Wis. them. borne not been I, And, in Nusbaum at 765. 156-57, 115 N.W.2d 2d at supreme I, 18 would that Article court concluded the providing proper state statute" "a not be violated University Marquette edu payments to offset dental I, 55 Wis. 2d residents, Nusbaum for state cation costs 659, but that such statute 333-34, 198 at at N.W.2d simply payments and not to that end restrict must "operating payments costs" of the to offset allow university. 326, 198 N.W.2d at 655. Id. at expressed supreme sentiments similar court 584, 326, 219 N.W.2d at II, 64 Wis. 2d at in Nusbaum special upheld purchase ser- education where it providers religiously because affiliated from vices religious provide question as did not "aid to act opposed institu- activities of the to the secular Specifically, the court noted: tions." insure great lengths legislature gone has [T]he tenets shall not inculcation of that, provides act] in the place. provision [A take pri- superintendent, the state upon approval must be one: special educational service vate board, body and faculty, student governing "Whose by any not or determined teachings are chosen any purpose." or for sectarian religious organization only By contrast, are at 583. not Id. at 219 N.W.2d any provisions Act 27 devoid of similar of 1995 Wis. stipulated limitations, that, but the State has under program: the amended

[T]he prohibit State does not the participating sec- tarian private using schools by from funds received any the school the purpose for school deems appro- priate, including, among things, payment other of and expenses employees salaries affiliated with the religious mission, school's purchase literature and other materials identified with the mission, school's religious and the maintenance and construction of for religious purposes. facilities used disagree Thus, we with dissent's conclusion provisions that if the amended are construed to limit payments state to sectarian schools to the incremental admitting program costs incurred in schools stu- program dents, the amended therefore satisfies Article § 18. I, construction, Even under such a the state dol- lars received sectarian school would underwrite programming" participating entire "educational limiting application students, without restrictions accept funds to secular We services. also cannot religious activity "opt-out" the dissent's view that the 119.23(7)(c), provision cures the constitu- Stats., program. tional infirmities of the amended Dissent at parents participating That 80. some of students in the may exempted amended their children have from activities at sectarian schools does not money treasury the fact that from alter drawn the state precisely would underwrite those activities for other program students.

Equally estimation, untenable, is the our dis- adoption narrowing sent's of a construction of the provisions preserve of 1995 Wis. Act 27 order its constitutionality. The dissent would have us read the provisions payments program to to limit state

amended only programming related "the cost for educational solely Dissent at to Parental Choice students." the provides statutory language question in 62-64. The funding per "an must not exceed that the state student operating equal and debt school’s amount to pro- per pupil that related to educational service cost is 119.23(4), gramming, by [DPI]." determined Section as Act 27, as Wis. 4006m amended 1995 Stats., (emphasis supplied). language Act cannot proposed limita- A sustain the dissent's construction. per-pupil reimbursement cost those costs tion on to solely program stu- admission of associated with the any § 4006m, is found nor in other dents not to be in provision program. of the amended appeal proposed parties

None of the to this have they urged by dissent, nor have the construction provision applicable argued that the reimbursable cost ambiguous, as the dissent to the amended parties fact, concludes. In demonstrated a shared provision understanding cost when of the reimbursable they stipulated program, that under the amended "tui charged by majority at least of the sectarian tion Superinten [State private schools that notified the dent] participate to amended of their intent during year MPCP is less than the the 1995-96 school per-pupil operating schools' and debt service cost." may duty no consider so, While this court do we have to any presented us, than and we issues other those " [by] addressing problems unmade create claims 'real arguments dispute.'" developing side for one to a County n.1, v. 2d 531 Dane, 47, Swatek 192 Wis. 52 omitted). (1995) (quoted source 45, N.W.2d judicially Moreover, we are not free re-write a plainly preserve worded statute in effort an its con- stitutionality. Hall, State v. 207 Wis. 54, 82-84, 2d (1997). N.W.2d 778, 789-90 The dissent does not ana- lyze per-pupil provision cost reimbursement program light scope, legislative amended of its his- tory, subject purpose, context, matter is our which customary approach when we deem a statute to be ambiguous. Brewing See Pabst Co. DOR, v. 130 Wis. 2d (Ct. 1986). App. 291, 294-95, 387 N.W.2d simply provision Rather, the dissent declares that the only participating the "describes costs schools incur educating due to the Parental Choice students." Dis- adopt sent at 64. We conclude that we cannot the urged by construction of the Act the dissent, because to require "go beyond province do so would that we the legitimate it, construction to and the save where mean- ing plain, is purpose read words cannot be into it out of it saving" program. Hall, the amended 207 (citations omitted). 82, Wis. 2d at 557 N.W.2d at 789 major Our second difference with the dissent's approach by beginning analysis that, with an of fed jurisprudence resting eral Establishment Clause and regarding analy § its I, conclusions Article 18 that on separate identity sis, the dissent obliterates the and vitality religion clauses of the Wisconsin Consti approach repeats tution. We fear that the dissent's this Miller, 238, court's error in State v. 196 2dWis. 538 (Ct. App. 1995), "overreading" King N.W.2d 573 v. Village 185 2d N.W.2d of Waunakee, Wis. (1994). Miller, 62-66, See 2d at Wis. 549 N.W.2d at recognize 238-39. We that Miller involved "freedom supreme claim, of conscience" but the court did not limit its disavowal of this that Arti- court's conclusion § as the in the same manner I,

cle 18 must be construed § 18. Amendment, clauses of to the conscience First express princi supreme The ples court's endorsement of Reynolds, moreover, demonstrates in Weiss and supreme provisions deems the more that our court once including clause, benefit I, 18, Article separate than, from, less and distinct flexible to be counterparts. Miller, 2d at 202 Wis. their federal See dissent, Thus, at 65-66, 239. unlike 549 N.W.2d supreme court as we were instructed but language of Arti Miller, we rest our conclusions on I, 18 of the Wisconsin Constitution. cle section misinterprets

Finally, the dissent we believe that analysis. aspects The dissent that certain of our asserts finding, based on certain have made a factual we stipulated religiously excerpts record, that from intending participate pro- in the affiliated schools religion throughout gram purposefully their will infuse goes programs. at 77. The dissent educational Dissent tending excerpts that to cite from the record to show on necessarily eligible schools do not some of the sectarian they provide so, education to their do excellent subjects. students in secular responses First, to these assertions. We have two overtly relig- imply, the state, did or even that we not purposes espoused of the ious and methods certain incompatible eligible excel- sectarian schools with were aspects programs. Second, their lence the secular of importantly, is more the constitutional concern and program nothing language the amended that in the using participating from funds to restricts schools state religious aspects support of the curricula at secta- regardless aspects those are a schools, rian major of whether part programming. or educational minor presented, On record it is clear that within the array intending participate of schools to in the program, emphasize amended there are those which may their mission methods. While it be approach difficult conceive of a non-secular to teach- ing mathematics, it not so difficult to that envision history, social or studies, even certain of the natural taught perspective. sciences could be from a sectarian may presume partici- Just as we pating not that all students program in the amended will receive pervasively religious instruction in all areas, neither may participation we conclude that will be limited to approach religious." those schools whose is "less problem nothing language is that in the ofthe amended program funding only ensures that state will flow statutory latter former, and not the even if lan- guage could be that devised would not run afoul of "entanglement" concerns.6

Finally, disagree we with the dissent's characteri- application compelled support zation of our of the rely separate clause. We do not on that as a clause ground holding. Rather, stated, distinct for our as we third, "entanglement," prong We did not reach the or guidance the Lemon test because our conclusion that Nyquist provided analysis under Establishment Clause second, "primary the amended shows fails the or religion" benefit" test. If this case turns on "how much infuses programming participating educational at sectarian schools, implies, as the dissent then the third Lemon tests (Nus ex See State rel. Warren v. Nusbaum implicated. be would I), (1972) baum 316, 329, 2d 55 Wis. 198 N.W.2d (" accounting '[Elntanglement' ... reports is not a matter of... budgetary controls, but rather surveillance sure that make aid.") religion purpose is not intermixed with the served state omitted). (footnote perhaps only appropriate, it is not but conclude that

we language mandatory ofArticle that review all of we religious interpretation 18 to aid us in our of I, compelled support clause, as it was clause. benefit supports interpreted Weiss, our conclusion that the in prohibition § 18, violates the amended money treasury from the to benefit a not be drawn (We not, the dissent did as institution. pro- compulsory implies, that the attendance conclude compelled violated, rather was but hibition taxpayer support clause.) aspect of the

CONCLUSION above, affirm the For the reasons discussed we declaring Act 27, 1995 Wis. trial court's order §§ I, section 18 4002-4009, to be violation Article the Wisconsin Constitution.

By the affirmed. Court. — Order major- (dissenting). ROGGENSACK, J. While obviously thought ity opinion effort, much entailed questions analysis its of the constitutional I believe appeal presented an this led to erroneous conclu- analysis part did sion, in it not undertake an because (Parental Program Milwaukee Parental Choice Choice) under the Establishment Clause First examining Parental Choice under Amendment before majority If the had done the Wisconsin Constitution. I it would not have concluded that so, am confident "hopeless jurisprudence Clause was Establishment recognized pro- disarray." that it Rather, it would have guide, directing where the a well articulated vides policies that the Establishment Clause are underlie challenge. presented by each To related to the issues begin analysis §I, the Article 18 in this case with an permits of examination Clause, Establishment a thorough comparison of the constitutional issues presented Parental Choice with standards of necessary jurisprudence to an effective review. Respondents Because I conclude that have failed to prove meet their burden to Parental Choice unconstitu- beyond respectfully tional I doubt, reasonable must dissent.

DISCUSSION First Amendment.1

"Congress respecting shall make no law an estab- religion, prohibiting lishment of or the free exercise begins thereof." So the First Amendment to the United simple repeat, Constitution, States with words so interpret.2 but so difficult to The Establishment Clause may and the Free Exercise Clause both on bear Supreme same state conduct. As the United States repeatedly recognized, Court has there is a tension religion within the of clauses the First Amendment granted summary judgment Respon The trial court to the addressing challenges. dents without the First Amendment majority However, opinion does so as well. I conclude because Choice Parental violates neither the United States Consti Constitution, tution thorough nor the Wisconsin and because a explication understanding juris of Clause Establishment prudence proper analysis is essential to a of Parental Choice I, Constitution, under Article 18 of the Wisconsin First Amendment is in this addressed dissent. 2The Establishment Clause the First Amendment has binding been made on the states the Due Process Clause of the Fourteenth Amendment. Educ. and Committee Pub. (1973). 756, Religious Liberty Nyquist, v. 413 U.S. 761 n.3 Exercise Clause3 and Establish-

itself. The Free yet it terms, in absolute are written ment Clause both completely permit impossible the former without offending Pub. Educ. latter. Committee for (1973). Nyquist, Liberty Religious v. U.S. consequence tension, states which As a of this internal required legislate are to maintain an atti- in this area neutrality nor neither advances inhibits tude of which explained, pur- "[T]he religion. As basic Id. the Court religion pose provisions that no these ... is insure sponsored commanded, favored, and none be none City York, New Walz Tax Comm'n inhibited." v. (1970). 397 U.S. Clause Establishment 1. Evolution of Jurisprudence. many law, of common Establish-

As in areas the developed through jurisprudence has ment Clause years specific that court which make which of decisions only general provides in In the terms. Constitution (1971), Supreme Kurtzman, v. 403 U.S. 602 Lemon analysis general out the structure of Court set it has used in Establishment Clause cases since which Lemon:

First, legislative a the statute must have secular second, primary its or effect must purpose; principal religion; nor one that neither advances inhibits be participation The Miller base their this law defendants they argue Free suit on the Exercise Clause when without Choice, of in Parental their First inclusion sectarian schools rights are Because I conclude that the Amendment violated. Program, permits which education Milwaukee Parental Choice school, constitutional, in a is I do not reach their sectarian argument.

finally, the statute must not "an foster excessive government entanglement religion."4 with (citations omitted). Id. at However, 612-13 while the principles enunciated in Lemon settled, remain well explication principles varying those factual bright situations shows that a line test for Establish- challenges possible. part, ment Clause is not In this history true because our nation's has never been one in completely which the church state were and absolutely separated. points As Justice Powell out in Nyquist, "[i]t thought possible has been never either regime separation, desirable to enforce a of total and as consequence arising cases under these have Clauses presented perplexing questions some of the most Nyquist, come before this Court.” 413 U.S. at 760. What requires by way analysis the First Amendment is a challenged careful examination of the law on establish- grounds ment it determine whether furthers the three evils which the Establishment Clause was designed prevent: support religion, state financial religion sponsorship state active involve- religious activity. Walz, ment of state in 397 U.S. at 668. have been

There numerous Establishment Clause challenges upon touching to state laws education. As challenges varying those have arisen in context the of patterns, general factual the contours of the Lemon clearly. example, test have defined more For in been (1983), Allen, Mueller v. 463 U.S. 388 the dis- Court challenge missed a a to Minnesota statute which

allowed a deduction for state income taxes for the

4 analysis will be as This form hereinafter referred to "the test," Lemon with recognition provides the that it a framework analysis for the of varying constitutional issues. actually parents

expenses children of school that transportation. It textbooks, tuition incurred5 for great acknowledged of the deduc- that the bulk was go parents of those students who to the tions would public private stu- because school attended schools provided tuition and textbooks, free dents were Additionally, generally transportation as well. free ninety-five percent students school 391. that sectarian. Id. at attended schools were legislative ensuring purpose of that The secular citizenry clear in Muel- the be well educated was state's the decision focused Therefore, ler. the bulk of Court's test, that of deter- element of the Lemon on the second mining principal primary effect the the whether which neither advanced nor inhibited statute was one analysis, religion. Court con- At the start of its principle "[o]ne field is our that fixed this firmed argument 'any program rejection of the consistent relig- with which in some manner aids an institution Clause." affiliation' violates Establishment ious (citation omitted). Key Mueller, 463 at to U.S. upholding constitutionality statute Court's religious neutrality, where the beneficiaries was its religiously neutral the statute defined on a were children) pay- ground {i.e., and where no state school directly any religious ments were made to schools. recognized provided Court that financial assistance parents ultimately some economic effect would have directly given comparable to that of state aid children, but it found schools attended their decisive question Nyquist pay was where the This reserved they expenses parents were not based on the actual ments incurred, pre-set stipends but instead were "occasioned nonpublic growing plight financial of such institutions." Nyquist, 413 U.S. at 792. only way in the which those sectarian schools "private

could benefit was as the of result choices of parents school-age individual of children." Id. at 399. removing Therefore, the state from the decision-mak- ing process about whether the children would attend avoiding sectarian institutions was material the designed three evils the First Amendment was prevent. Washington Dep't In v. Witters Servs. the of for (1986),6 challenge

Blind, a 474 U.S. 481 was made to permitting particular participate pro- a student to in a gram provided public special which funds for education training profession, and/or in a trade, business or in visually handicapped persons order to assist overcome handicaps vocational and to obtain the maximum degree self-support they and self-care of which were capable. suffering progressive eye Witters was from a eligible which him act, condition made under the he but attending Empire was private Bible, Inland a School college Spokane, Washington

Christian in speech where Bible, ethics, he studied the and church equip administration an effort to himself for a career missionary pastor, youth as a state director. The denied him assistance because monies that would provided passed through have been would have him to brought school. Witters suit state court denying for a him review the administrative decision aid. aid, When state courts affirmed denial he appealed Supreme Court, to the which reversed. Jus- writing began Marshall, tice Court, for the with 6The scholastic aid survived an chal Establishment Clause lenge, remand, Washington Supreme but on held it Court unconstitutional under state constitution. Witters v. Wash (Wash. ington Blind, 1989), Dep't 771 P.2d 1119 Servs. (1989). denied, cert. 493 U.S. 850 principle in he stated used Mueller when same basic that: Clause is

It settled that the Establishment is well in every money previously pos- the not time violated a conveyed religious a to session of State may a a example, For State issue institution. may employees, who then paycheck to one of its a part paycheck religious that to donate all or institution, barrier; and all without constitutional knowing the may the so even that State do salary. dispose of his employee so intends to The also that on the other Id. at Court stated 486-87. subsidy" relig- may give a a hand, a not "direct to state question presented The defined the ious school. Court the the extension of aid to Wit- in Witters as whether religious support his that aid to his ters and then use of permissible a transfer similar to education was impermissible salary hypothetical an donation or subsidy." concluded that "direct Id. at 488. Court only way that a institution would benefit through given would be Witters' from the aid to Witters pro- Washington's personal choice, because State of gram generally regard made without to was available public/hon-public sectarian/nonsectarian, or spent. aid would be nature of the school at which the giving money Additionally, concluded that Court way in no for him under- was an incentive Witters Id. take sectarian education. Nyquist Powell, was author of

Justice who concisely forth under- Witters, set his concurred evaluating standing of the test to be used when principal primary payments effect whether actually made religion citizens was state advancement programs he that are when stated "state wholly offering neutral educational assistance to a religion class defined without reference to do not vio- part late the second of the Lemon v. test, Kurtzman any religion private because aid to results from the choices of the individual beneficiaries." Id. at 490-91 (Powell, concurring). concurring opin- J., And, in her religion ion, Justice O'Connor reiterated that the aid to solely private at issue in Witters was the result of a choice. The conclusion that a choice controlled important the use of the state aid was to her because "[n]o likely reasonable observer is to draw from the endorsing facts ... an inference that the State itself is a religious practice (O'Connor, or belief." Id. at 493 J., (citations omitted). concurring) pro- And, it is a state's religious practices motion or restriction of which the proscribes, private Establishment Clause not that of individuals.

In Zobrest v. Catalina Dist., Foothills Sch. (1993), Supreme U.S. 1 Court reviewed Arizona's provide sign-language interpreter refusal to to a deaf high student who attended a Roman Catholic Tucson, school in Arizona. Under law, federal and state interpreter law, Zobrest would have been entitled to an disability. request as a result of his However, his was provide denied because the state concluded that interpreter high Zobrest with an in a Catholic school would run afoul of the Establishment Clause. addressing

In Court, issues for the Chief Jus Rehnquist began again premise tice with a similar to and Nyquist Witters, those asserted in Mueller when he stated:

We have never said that "religious institutions by are disabled the First Amendment partici- from pating publicly sponsored social welfare programs." . . . consistently [W]e have held that bene- neutrally provide programs that

government without citizens defined a broad class of fits to an readily subject religion are not reference secta- challenge just because Clause Establishment attenuated may also receive an rian institutions financial benefit. (citations omitted). When

Zobrest, U.S. at 8 applied test, the statute the Lemon it concluded Court analyzing purpose. In a valid secular was motivated requires prong that of Lemon which second primary principal advance effect of the law neither pro- religion, that the statute it reasoned nor inhibit (deaf children) that was not to a class vided a benefit religious preference, thereof, and or lack measured religious any receive school would which a that benefit only parents chose of their own after Zobrest's occurred place pervasively sectarian envi- him in a free will to state that Therefore, it was not the ronment. Id. at 13. religion, parents. endorsing Zobrest and his but was providing Additionally, an the Court concluded indirectly interpreter educa- not finance did by relieving it school of costs the sectarian tion educating its students. would have borne otherwise 12. Id. at Rosenberger the Univ. and Visitors In v. Rector (1995), Virginia, 819 an Establishment 515 U.S. again challenge made in an educational was Clause setting. Virginia University had collected

There, Fund from a Student Activities fees and established published newspapers groups student who which magazines publication costs. How- retrieve their could organization, Productions, Wide Awake ever, a student publica- entitled to have been otherwise which would Fund, was the Student Activities tion monies from newspaper published a it denied those monies because 54 point with a Christian of view. Wide Awake Produc- challenged University's tions decision and the Supreme agreed Court with Wide Awake Productions. University It held that the and the courts below had by: erred

focusing on money that undoubtedly expended by government, rather than on the nature of the by recipient. benefit received If the expenditure governmental prohibited funds is whenever pay is, those funds a pur- service that suant to a religion-neutral program, used a group for sectarian purposes, Widmar,7 then Mergens,8 and Lamb's Chapel9 would have to be overruled.

Rosenberger, holding, 515 U.S. at In 843. so Supreme Court clarified that the benefit received recipient pro- must be one that does not inhibit or religion mote and that what the student does with that spend religion- benefit, if even it is to 100% of it on expenditures, Rosenberger, related as in Witters and does not violate the Establishment Clause. This hold- ing understanding forbidding is bottomed on the that

7 (1981) Vincent, Widmar v. (holding U.S. 263 religious groups university's exclusion of open pol from forum Amendment). icy violated the First (Dist. 66) Community Board Westside Sch. v. ofEduc. of (1990) Mergens, 496 U.S. (holding high school which allowed student secular non-curricular activities to meet on property school required provide equal was access to a Chris group). tian student Chapel Dist.,

9 Lamb's v. Center Moriches Union Free Sch. (1993) (holding 508 U.S. 384 school district violated First public Amendment when it denied church use of school facilities series, solely to show film presented because it view values). family according spending recipient it from of the benefit religion personal neu- not be beliefs would to his own convey state-approved a tral, instead would but religion. hostility O'Connor As Justice toward explained: perception impermissible leave an

[It] would message is disfavored: "the activities are religious endorsement; if a than neutrality rather one of groups use facilities religious to let State refused others, not neu- then it would demonstrate open to Neutrality, religion."... trality hostility but toward effect, hallmark of the is one in both form Clause. Establishment omitted). (citation (O'Connor, concurring) J.,

Id. at pronunciation Supreme on Court The most recent challenge in an educational an Establishment Clause Agostini Felton, 117 S.Ct. 1997 in v. context is found (1997). holding Supreme its There, the Court overruled (1985), portion Aguilar and a Felton, 473 U.S. 402 v. City Rapids holding v. Grand in School Dist. of its (1985), public it held that Ball, U.S. 373 when gui- provide education, remedial school teachers could eligible job counseling students within the dance and ninety percent private of which schools, confines of contravening the Establish- sectarian, without were doing, re-examined the In the Court ment Clause. following presumptions so operational had been

which Aguilar and Ball: (i) who works on any public employee

[That] incul- presumed school is premises (ii) work; presence public in her religion cate creates a premises on school employees (iii) state; church and symbolic union between directly aid that aids the educa- any public and all religious impermissibly tional function of schools religious indoctrination, finances even if the aid consequence private reaches such schools as a decisionmaking.

Agostini, 117 S.Ct. at 2010. presumptions

The Court concluded that those longer were no ing valid because the Court's "understand- religion of the criteria used to assess whether aid to impermissible changed. has an effect" had First, Id. it allowing state-paid concluded that teachers to work in parochial always imper- schools does not result in the state-sponsored missible effect indoctrination, nor always symbolic does it constitute a union between eligibility church and Rather, state. Id. the neutral criteria ensure that believers and nonbelievers are equally treated under Second, the statute. the Court government discarded the rule that all aid that "directly religious aids" the educational function of presumptively schools is invalid. It concluded that religious when the institution is able to benefit from program only independent the state as result of an eligible program, choice of a citizen who is for the Establishment Clause is not contravened. Id. at 2011 (citation omitted). longer pre- Third, the Court will no provided sume that when aid is to students at the choice, schools of their those services relieve secta- rian school of costs it would otherwise have had to spend educating pro- students, its even without the gram challenge. under Fourth, Id. at 2011-12. constitutionality program depend of an aid does not on the number of sectarian school students who will program. receive otherwise neutral aid under the Id. at 2013.

The Court concluded that Establishment Clause analyses should focus on the criteria used the state program identify of an aid because the beneficiaries

they subsidizes are relevant to whether religion create a finan- to whether the criteria and also religious recipient to undertake cial incentive for the an reasoned that Id. at 2014. Court education. present, however, the aid is not where "incentive is neutral, secular criteria that on the basis of allocated religion, made availa- disfavor and is neither favor nor on a and secular beneficiaries to both ble nondiscriminatory basis." Id. Program. Milwaukee Parental Choice

2. the educa- Choice was enacted to broaden Parental learning opportunities for students and increase tional these Milwaukee families because from lower-income among in academic achievers students were lowest of Parental Choice are the state. The beneficiaries geographic by circumstances and defined the economic family school-aged in child is location of the which eligible participate, a child's In order to be to found. family may greater than have income no 175% by poverty the federal office of level as determined management budget, Milwaukee, and must reside eligible kindergarten attend and must be otherwise through grade twelve.10

Participating private may schools be sectarian or They must their students for nonsectarian. select they may give except basis, on a random siblings pupils already accepted. preference The participating in Milwaukee schools must be located requisite and meet all the state and federal laws private cannot codes for accreditation. The schools attending program partici- require pupils under the 10 criteria, 119.23, Stats. complete For a detail of the see §

58 pate any religious activity. That choice left to the parents. parents participating paid The are students equal operating "an amount to the school's per pupil debt service cost programming, that is related to educational by department,"11 as determined per-pupil public limited amount to which the school district is entitled under 121.08, STATS. parent's checks are sent to the choice of schools and can only pupil's be cashed for the cost "educational programming, department." as determined Sec- 119.23(4), tion Stats. presents challenge The case at hand a facial to the constitutionality of Parental Choice because it seeks to possible applications strike down all of the act which (1988). Kendrick, created it. Bowen v. 589, 487 U.S. Respondents beyond Therefore, establish, must a rea- possible applications doubt, sonable that there are no interpretations of the statute which would be consti- tutional. Salerno, 739, United States v. 481 U.S. (1987). granted summary judg- Because the trial court Respondents, ment to the there must also be no issues dispute. of material fact in R.P. J.W., Lisa v. Michael (Ct. App. 132, 179, Wis. 2d 565 N.W.2d 1997). analysis begins by

This Establishment Clause applying easily the Lemon test. Parental Choice satis- prong, purpose fies the first with the secular improving the academic achievement for children from major However, lower-income families. the concerns constitutionality about the of Parental Choice center prong on the second of the Lemon test. Respondents

The maintain the statute fails the primary analysis thereby Lemon, effect violates

11 payable The amounts under the are determined by Department of Public Instruction. Respondents Paren- assert

the Establishment Clause. religious support provides "direct" to a tal Choice activity, construed to be if the statute were even purpose. facially The and to have a secular neutral12 by any support Appellants received a counter independent religious an school is "indirect" because precedent parent a student's is a condition choice money; religious receipt therefore, the a school's Respondents reply, program is constitutional. To which may prohibi- support indirect contravene that even Clause. tions Establishment analysis prong My of the Lemon test of the second principles begins recognition with a of the basic jurisprudence which are relied Establishment Clause Agostini, Nyquist. Witters, First, Mueller and on in merely program in some man- because a social welfare religious affiliation, it ner aids an institution with a necessarily program is uncon- does not follow that the Second, the class benefited must be stitutional. religion. Third, described without reference provided must neither be hostile nature of benefit apply- religion provide In nor incentive. ing primary test, effect I utilize the directive of wholly programs that "state that are Justice Powell offering to a class neutral educational assistance religion do not violate the defined without reference to part test, v. Kurtzman because second any of the Lemon religion choices of aid to results from Witters, U.S. at 490-91. individual beneficiaries." Agostini, at 2011-12 and 2014. See also 117 S.Ct. defined Here, the class of beneficiaries is geo- families and the income levels of the students' graphic reside. As set locations which the students Respondents do not concede Parental Choice neutral. comprise statute,

out in the the beneficiaries a neutral religion. classification that has no reference to provided opportunity nature of the benefit is the for parents additional educational choices for the and stu- dents of lower-income families. The benefit neither promotes religion pro- Rather, nor is hostile it. it opportunity learning by motes the for increased those currently having greatest difficulty with educa- doing, tional achievement. In so the State leaves the choice of the site of each child's education to his/her parents. constitutionally permissible It is under cur- jurisprudence parents rent Establishment Clause religious to choose a children, education for their even they receiving payments when are financial from the State to fund that Zobrest, 13; choice. 509 U.S. at Muel- ler, Witters, 463 U.S. at 399. As the Court held in merely Establishment Clause is not violated because money previously possession in the aof state is con- veyed parent's to a school. A choice to send his religious private or her child to a school and thereafter provided to transfer the monies under run school does not afoul of the First Amendment. Mueller, 399; Witters, See 463 U.S. at 474 U.S. at Rosenberger, Agostini, 486-87; 842; 515 U.S. at S.Ct. at 2016. just majority

Furthermore, because the applied participate schools which have in Parental necessarily schools, Choice are sectarian it does not follow that the statute is unconstitutional. As the Supreme Agostini: Court reasoned in willing

Nor are we to conclude that the constitution- ality program depends of an aid on the number of happen sectarian school students who to receive neutral aid. did not turn on the otherwise Zobrest had, fact that James Zobrest at the time of litiga- tion, only been the using publicly child a funded sign-language interpreter parochial to attend a Accord, Allen, 388, 401, school. Mueller v. 463 U.S. (1983) ("We 3062, 3070, 103 S.Ct. 77 L.Ed.2d 721 adopt would be loath to a rule grounding the consti- tutionality facially of a neutral law on annual reports reciting the extent to which various classes law."). citizens claimed benefits under the Agostini, citing 2013, Mueller, 117 S.Ct. at 463 U.S. at 401. repeatedly Nyquist

However, in cases from Agostini, analysis the Court's involves consideration of payments actually supplant whether the state costs the sectarian incurred, schools would have even with- program challenge. out the under I Therefore, consider 119.23(4), provides this factor as well. Section Stats., payments parents equal per for state pupil to the "cost programming," that is related to educational so long per-pupil pay- as that cost is not more than the by ment received Milwaukee Public However, Schools. 119.23(4) ambiguous capable being because it is by reasonably persons understood well-informed in at ways. County, least two D.S. v. Racine 129, Wis. 2d (1987). per 134, 416 N.W.2d The words "cost pupil programming, that is related to educational as department" determined could mean the cost for programming solely the educational related to Paren- phrase tal students, Choice or the could mean the cost programming for the educational for all students in a given private school divided the number of students in that school.13 The record does not reflect whether

13 The latter interpretation urged by was counsel for the plaintiffs argument. Jackson at oral Counsel for Parents for opined School Choice that Parental Choice is a pro- remedial larger pay- result in a the latter construction would they spend parents, would then at a ment to the which participating school, than would the former construc- longer Agostini And, teaches that courts are no tion. provided presume that when aid is to students free to sup- religious schools those monies are who attend planting had, school have even without costs the would Agostini, 117 S.Ct. at 2013. How- at issue. that such a construction would ever, to the extent larger payment supplant that would costs result incurred, would have even without which the schools participating Choice, it must be avoided. in Parental statutory with the basic maxim of This is consistent requires challenge that a facial to a construction which limiting when a construction statute will not succeed legislation's maintain the constitu- available that will integrity. Oklahoma, 601, Broadrick v. 413 U.S. tional 613(1973). a tenet of First Amendment long

It has been challenge facial to a stat- determining that in law narrowing to a ute, "readily susceptible" if it be constitutional, it that would make it construction upheld. will be

Virginia Ass'n, U.S. v. American Booksellers (1988). 119.23(4), Therefore, I conclude that only participating schools describes costs Stats., educating Parental Choice students.14 incur due to passes that Parental Choice I also conclude prong Lemon test because third providing incur in only the costs the schools gram, and it is parents. paid that are those services pay the State from interpretation preclude does not This amount, caps by the financial as indicated ing less than this stated in the statute. require entanglement

does not excessive state with religion Agostini. under the standards established requires Department Parental Choice of Public payment Instruction to determine the amount of the parents participating confirm receive, will that the complied requisite schools have with all the laws and they pupils codes and that select on a random basis, siblings already exclusive of admitted, and to monitor performance. Legislative student Audit Bureau perform performance will also a financial and evalua- program. tion audit of the All are tasks that will not religious teachings any involve the State in the at sec- Respondent argued tarian And, school. no statutory responsibilities of the State result in consti- infirmity prong tutional under the third of the Lemon test. majority Nyquist contends that is the Estab-

The. closely lishment Clause case whose facts most Nyquist, resemble Parental Choice; and therefore, not jurisprudence, more current determines the outcome disagree this I case. First, two reasons. Establish- jurisprudence evolving legal ment Clause is an concept, necessary where the outlines of the structure analysis challenge to an effective of a constitutional are sharpened through and clarified successive court deci- Nyquist interpreted sions. Therefore, must be and applied jurispru- with current Establishment Clause Nyquist factually dence in mind. Second, distinguishable ways Supreme the United States significant. Court has found Nyquist provided stipends examined an act which to pri- lower-income families who sent their children to stipends capped by vate percentage schools. The were paid, of the tuition but the amount received was tied to elementary secondary whether the child attended parent paid school, amount tuition. It not to the provided higher-income also for tax deductions for fam- qualify stipends. did ilies who not for the The actually paid. deductions were also unrelated to tuition nonpublic by the schools were characterized Court as those which could: (a) impose religious on admis- restrictions (b) religious require pupils

sions; activities; doctrines and at attendance of (c) require obedience students to the (d) dogmas particular faith; of a require pupils theology to attend instruction in the (e) particular integral faith; or doctrine of a part are an religious sponsor- ofthe mission ofthe church (f) ing purpose it; have as a substantial religious (g)imposereligious values; inculcation of restrictions on (h) faculty appointments; and impose religious restrictions on what or how the faculty may teach.

Nyquist, striking the sti- 413 U.S. at 767-68. In down pends deductions, that the and tax the Court concluded separation act had made no effort to maintain a religious at between secular and educational functions Additionally, it concluded that schools. provided cash for the fam- the act unrestricted because stipends operated use, deductions ilies to and tax impermissible provided "encour- as "incentives" that agement" parents children to to to send 785-86, schools. Id. at 791. significant

By contrast, Parental Choice made religious aspects separate efforts to the secular participating schools it stated that no student when activity any religious required participate was required select students on a that the schools were only siblings giving preference of stu- basis, random Additionally, already the record in attendance. dents any religious component does not reflect that there is hiring faculty of for Parental Choice schools. And finally, payments parents received of Paren- directly tal Choice students are tied to the cost to the educating school of Parental Choice students. There- parents' providing fore, restricted, use of funds is parents no incentive for their to send children to secta- rian schools.

In I summation, conclude Parental Choice does not violate the Establishment Clause the First Amend- ment it because offers educational assistance to a class (children families) persons from lower-income religion; provides defined without reference to their it a (increased opportunity) benefit religion educational which, any eventually

neutral; monies reach a religious only independent do institution so after an parent; payments choice and the made do not they subsidize for institutions costs would participating incurred, have even without in Parental Choice.

Wisconsin Constitution. §I,

1. Article 18. § I, Article 18 of the Wisconsin Constitution majority's formed two bases conclusion that Parental Choice unconstitutional; was the benefit compelled support clause and the I, clause. Article part: states in relevant right every person worship Almighty God

according to the dictates of conscience shall never infringed; be any person nor shall compelled be attend, erect support any place worship, or to any ministry, maintain consent; without nor shall with, of rights of, interference any control or given be any preference permitted, be conscience of or modes establishments by any religious law to drawn from any money be worship; nor shall societies, or religious treasury for the benefit theological seminaries. religious or per- guarantees of several constitutional It contains religious idea of on the bottomed sonal liberties freedom. religious challenged on a statute is

Often when challenged grounds, the First under both it is freedom § occurs, the I, Article 18. When Amendment and repeatedly Supreme stated that has Court Wisconsin may "[w]hile and differ, the federal both words used relating provisions freedom of state constitutional operate religion the same to serve are intended relig prohibiting purpose the 'establishment' dual religion." protecting State the 'free exercise' ion and 332, 198 316, 2d Nusbaum, 55 Wis. v. ex rel. Warren (1972)15 (where test was the Lemon 650, 658 N.W.2d appellate by in its employed court a Wisconsin first analysis); v. ex rel. Warren State Clause Establishment 577, 584 314, 328, 219 N.W.2d 2d Nusbaum, 64 Wis. (1974);16King Village 25, 2d 185 Wis. of Waunakee, v. (1994). 671, 683 53-54, N.W.2d 517 quoted mean that do not statements

However, § identical protections I, 18 are Article afforded provided respects First Amend- those in all 65-66, 549 56, 2d Miller, 202 Wis. v. ment. State (1996). though has been it And, even 235, 239 N.W.2d involving provision Amendment if a First held that § 18 of the Wis- violated, I, Article freedom is I, 55 violated, Nusbaum is also consin Constitution 15 I. as Nusbaum to hereinafter be referred This case will 16 II. as Nusbaum to hereinafter referred This case will be

67 always Wis. 2d 333, at N.W.2d at it does not follow that if the First Amendment has not been vio- transgressed. § lated, I, Article 18 has not been Miller, 65-66, Wis. 2d at at N.W.2d 239. religion Miller, which involved a free exercise of challenge brought by members of the Old Order Amish example faith, is an of a difference between First jurisprudence jurispru- Amendment I, Article analyzing dence. In their claim under the Wisconsin acknowledged Constitution, the Court federal law and past relationship challenges its to free exercise under §I, 18, Article but decided not to use the current fed- analysis challenge eral for a free exercise and instead compelling retained the state interest/least restrictive analysis formerly means used in free exercise chal- lenges under the First Amendment.17 However, it did bright challenges not create a line and hold that all alleged always restrictions of freedom must analyzed differently analyses be from the used with parallel challenges under the First Amendment. Rather, it held that: questions

Some cannot fully be by illuminated light of jurisprudence alone, federal may but require examination according to the dictates of the more expansive protections by envisioned our state constitution. added). (emphasis analysis

Id. at 64 The used in Miller appropriate challenge, for a free exercise but it is not applicable compelled support to the benefit clause

17 1990, In the United States Supreme Court stopped using the compelling state interest/least restrictive means test in solely cases bottomed on a Free Exercise challenge. Clause Div., Employment Oregon Dep't Smith, Human Resources v. 872 (1990). 494 U.S. challenges Therefore, clause at issue here. I examine challenges using analytical desig- those framework by Supreme nated the Wisconsin Court for the benefit compelled support clause and the clause.

a. Clause. Benefit Respondents' challenge, benefit clause at least respects, parallels in some an Establishment Clause challenge under the First Amendment. The benefit any money "[N]or clause states: shall be drawn from treasury religious societies, the religious for the benefit of or theological seminaries."18 Johnson,

State ex rel. Atwood v. 170 Wis. (1919), challenge N.W. 224 a addresses benefit clause There, an educational context.19 the Court consid- gave stipends returning ered a law which financial any World IWar veterans to enable them to attend nonprofit college, high school, vocational school or ele- mentary including religious state, school in the schools. The use of the funds the schools not was restricted. articulating lengthy reasoning process While not reaching the conclusion that the act did not violate the clearly clause, benefit the Court examined whether the payments received the schools offset the additional Nusbaum, 148, 156,

18 Reynolds v. 2d 17 Wis. 115 N.W.2d 761, (1962), seminaries," interpreted "religious 765 the term elementary secondary parochial (citing include schools City State ex rel. v. Bd. Weiss District Dist. No. 8 of Sch. (1890)). 177, 215, However, Edgerton, 44 76 Wis. N.W. 967 interpretation equivalent "relig that a sectarian school is to a I, seminary" ious was retreated from in Nusbaum 55 Wis. 2d at n.33, 198 335 at 660 N.W.2d n.33. Atwood, majority opinion distinguish yet

19 The does not its by closely presented facts most those Parental Choice resemble good and it is still law.

69 generated by educating costs to the schools which were It stated: the veterans. that financial benefit accrues to

The contention religious equally schools from the act is untenable. cost to such schools occa- Only actual increased by the attendance is to be sioned of beneficiaries They reimbursed. are not enriched the service aid. they render. Mere reimbursement is not added). (emphasis 263-64, at 228 As Id. at 176 N.W. context, in Amendment has been discussed above First §I, in Article chal and as will be discussed below religious lenges, that a school not concern be compensated expenses it had which would have notwithstanding part at issue remains a jurisprudence. freedom This is so because payment expenses may of those be as subsi viewed dizing religion, if the funds is the institution's use of Agostini, 2011; 117 S.Ct. at unrestricted. See Nusbaum I, 327, 198 2d at N.W.2d at 655. 55 Wis. Reynolds Nusbaum,

In State ex rel. v. 17 Wis. 2d (1962), 148, 115 the Court addressed a N.W.2d challenge provided transporta- facial to a statute which public pupils residing tion to and from schools for all a school district two or more miles from the nearest regardless they public pub- school, ofwhether attended private coming lic or schools. In to its conclusion that provided paro- an unconstitutional would benefit be employed act,20 chial schools under the Court an holding Reynolds v. Nusbaum was overturned provides: the amendment ofArticle I to add which Nothing prohibit legislature in this constitution shall from safety by providing providing for the and welfare of children for the transportation any parochial children to and from learning. school or institution of analysis predates which the use of the Lemon test21 jurisprudence, applied under federal or state but which very prongs criteria similar to the first two ofLemon. Reynolds First, the Court in directed that when challenge clause, confronted with a under the benefit question "the crucial is whether the benefits which parochial schools would receive under act are aof category 18, I, to constitute a violation of sec. art. Wis consin constitution." Id. at (emphasis at N.W.2d added). "category" Second, it examined ways: provided specific two terms of benefit in terms of the class to which benefit was directed. examples police benefits, The such Court listed as protection, and fire that did not run afoul of the benefit they clause and concluded benefits that were neut were regard religion. public "[A]ll ral22 in these to provided public, services and facilities are to the . . . generally whereby on a basis no classification is made religious organizations as to or schools. It is this which distinguishes sought these those benefits from be also consid conferred the instant act." Id. Court given directly religious organizations ered benefits apply public generally, did not to the such as the which given religious parochial exemption school tax 70.11(4), property under Stats. The Court concluded category tax were in a that was neutral23 benefits applied the class to which it included all non because profit organizations, simply affiliated not those with

21Lemon v. was decided in 1971. Kurtzman "neutral," Although the Court did not use the term it set neutrality, requirement specific both for the up the given recipi the class of benefit and for characteristics of ents, on a pass if an act was to constitutional muster benefit challenge. clause 23See note 18 above.

religious organization. 158-59, 115 at Id. at N.W.2d 766. analysis provided part the act

As of its of whether "category" religiously benefits, the of neutral for a prior parochial act, to the Court found24 that transporta paid part, all, schools had cost pupils; therefore, it was the schools tion of their financially opera because, to benefit who stood they being law, relieved of costs tion of the new they were anyway.25 156, 115 would have had Id. at N.W.2d specific Therefore, at 765. benefit was not neutral relig religion of the because it subsidized the costs analysis Reynolds very in is ious schools. The used primary Lemon, similar to the effect test of which cur rently requires religious neutrality in the criteria religious define the class of beneficiaries and which neutrality regard specific provided. in to the benefit (Powell, concurring). Witters, J., at 474 U.S. 490-91 significance, Reynolds equal However, of when light jurispru- current federal and state examined challenges, dence for establishment the Court equivalent failed the concluded the act first 24 finding grounded in stipu This factual of the court is provided by parties. of facts lation religious It also concluded the schools were benefited 156, 115 Reynolds, increased enrollment. 17 Wis. 2d at N.W.2d Apparently at 765. this conclusion comes from the Court's assumption parochial parents that in some schools the were and, required pay busing for some of the costs of if relieved of likely expense, parents that more would be to choose a education for their children than would otherwise do so. In so 200, reasoning, of Educ., v. it relied on Judd Board 278 N.W. 212, 576, (1938), 15 N.E.2d which has been overruled. Allen, 799, 803, Board v. 281 N.Y.S.2d 228 N.E.2d of Educ. (1967). prong of the Lemon test: It didn't have a valid secular purpose. explained: The Court attorney general argues that this act is sustain-

able on the basis the transportation parochial school pupils promote would their health and welfare. It argued could also be equal with plausibility that a direct grant public in aid of funds to parochial promotes schools general welfare of pupils of such schools because it aids their education.

Reynolds, 160, 17 Wis. 2d at 115 N.W.2d at 767. And any Reynolds lest there be doubt that the in Court did purpose passing not find a valid secular for act, in Reuter, Warren v. the Court reiterated that determina- tion: Reynolds State ex rel.

In v. Nusbaum (1962), 17 Wis. 148, 2d 761, 115 N.W.2d this court did not accept the declaration of the legislature but determined the purpose of the school in bus law its "realistic operation" was to benefit schools rather promote safety than of children.

State ex Reuter, rel. Warren v. 44 201, 212, Wis. 2d (1969). N.W.2d upheld

In II, Nusbaum the Court the constitution- ality comprehensive purpose of a act whose was to provide handicapped special children with services to purpose meet needs, their educational even when that accomplished by contracting directly was school boards religious organizations paying pro- with them to programs vide educational for the In children. analyzing challenges, the constitutional the Court "Initially recognized stated, contracting it must be that the mere goods public purpose or services for a appropriate a with sectarian institution is state 324, 219 N.W.2d at II, Wis. 2d at Nusbaum 64 action." reasoning with the conclusion is consistent This 583. pay- simply if the act allows Atwood, that set forth organization provides, religious the services a ment for treasury money is not for bene- from the drawn organization. religious consistent with It is also fit of Reynolds, proposition if that stated the converse payment supplants school would have costs a primary notwithstanding act, it does have the had benefiting religion. effect Supreme King provides recent Wisconsin the most challenge. clause of a benefit Court consideration Village King a creche the of Waunakee There, placed claimed holiday village during park the Christmas in a that It was contended vil- was unconstitutional. season lage and maintain the used to erect monies were bestowing thereby on those of the creche, a benefit contrary Appel- §I, 18. The faith to Article Christian Reynolds urged that the Court to conclude lants analysis required I, for Article a constitutional used in Establishment rejected is different from that that contention, cases.26 But the Court Clause clause chal- that, held at least for a benefit and it interpret apply lenge,27 §I, 18 in Article it would Supreme inter- United States Court's accord with the King, pretation 185 Clause. Wis. of the Establishment 54, 517 at 683. 2d at N.W.2d King Therefore, dissent follows the directive this challenge analyzing to Parental Choice. in this facial 26 analysis, section of its the Court In the First Amendment Lemon test. applied the 27 earlier, departs Supreme Court As noted the Wisconsin analytical used federal Establishment from the framework challenge a free exercise challenges, when it reviews Clause I, under Article 18.

74 explained passes As above, Parental Choice the Lemon explained by test, as that test has been the United Supreme States However, Court. that conclusion does my analysis, contrary not end to what is stated in the majority opinion. Supreme Wisconsin Court decisions support my conclusion that Parental Choice does not violate the Wisconsin Constitution. majority agrees that the act has a valid secu purpose,

lar money but, it defines "benefit" as the provides religious State and concludes that schools they would paid be "benefited" because would be for the they provide services to lower-income children under analysis: the act. by There are two errors in that First, focusing money providing, on the the State is rather than on the nature of the benefit received the chil majority recipient dren, the assumes that a of state purchase funds cannot choose to use state funds to religious offending services from a institution without assumption the constitution. This is an incorrect under both Wisconsin and the United States constitutional jurisprudence. Atwood, 170 263-64, Wis. at 176 N.W. (concluding may state-pro at 228 that veterans use religious schools); vided dollars to attend II, Nusbaum (concluding 324, 219 Wis. 2d at N.W.2d at 583 that it constitutionally permissible to use state funds to purchase goods or services from a sectarian institu tion); Rosenberger, (concluding 515 U.S. at that the expenditure governmental prohibited funds is not simply pay because those funds for a service that is (con respects); sectarian in some Zobrest, 509 U.S. at 8 cluding institutions are not disabled participating publicly the First Amendment from sponsored programs); social welfare Witters, (concluding constitutionally per- U.S. at 488 that it is purchase a to choose citizen missible for religious funds). government with education relig- majority when a assumes that Second, the public paid, funds for the received is it has ious school assumption seminary. religious This latter of a benefit part appears concern that on the bottomed to be use the the schools can on how are no restrictions there majority's part they con- and in on receive monies elementary secondary and sectarian clusion that "religious However, if each seminaries." are schools providing paid the cost to it of no more than school programming students Parental Choice educational a constitution- will receive serves,28 it no school whom ally impermissible at Atwood,29 170 Wis. benefit. (concluding payment for at 228 263-64, 176 N.W. relig- rendering to a a financial benefit a service is not (concluding school); there Witters, 474 U.S. at 488 ious college's impediment a Christian no constitutional is receipt government provided under a of monies clearly program). II And, Nusbaum social welfare accepted "[T]he the recurrent court has not states, argument aid to one aid is forbidden because that all spend aspect its other frees it to an institution II, 64 Wis. 2d at ends." Nusbaum on resources more a school receives really does not matter whether It tuition, long so as currently charges students for than it or less providing school's cost of does not exceed the paid the amount Parental Choice students-under programming for educational care. its argued that Respondents' counsel argument, At oral therefore, analyzing "obscure;" value in no was Atwood decision of the Wiscon disagree. I Atwood is a at hand. the case Court, that citizens payments on State Supreme bottomed sin Therefore, an religious schools. to use to attend could choose may ignore it. court not appellate 324, 219 Furthermore, N.W.2d at 583. as indicated in just dissent, note 18 of this because a school has secta- presume "religious ties, rian one cannot it is a seminary." I, Nusbaum 55 Wis. 2d at n.33, N.W.2d at 660 n.33. majority opinion

Another factor on which the rests religious is the determination that the mission of the participating every aspect schools so infuses of instruc- sponsored religious tion that state indoctrination is certain to It occur. that "the concludes sectarian aspects of their educational are intertwined subjects"; with the secular therefore, and there will be "purposeful religion aspects infusion" of into all of the provided. education This is a factual determination in regard religiously to how affiliated schools will teach subjects. support secular In assertion, this majority repeats some mission statements from the stipulated exhibits which were attached to the facts. provides However, the same documentation the follow- ing support opposite information which would an factual determination:

Catholic Elementary East School: "Children of all religions and races are admitted." All Saints Catholic Elementary School: "All Saints Elementary broad, Catholic proud School is of the background multi-cultural Appli- its students. race, accepted regard creed, cants are without or ethnic heritage." (Only religious one person is listed roster.) on its staff Trinity

Blessed School: The staff up is made of thir- women, teen married two women listed after a men, "Ms." designation, and three who are not priests brothers. There is no informa- or lack religious beliefs their about provided

tion thereof. competency incorporates

"The curriculum math reading and in the levels of instruction based instruction grade-level appropriate programs studies, physical arts, science, social language our The foundation of fine arts. and the education uniqueness stresses approach education for each appreciation an generates individual contributions." child's needs and year 99% School: "Each University High Marquette and universi- four-year colleges attend graduates 19 1993, School recorded Marquette High ties. ... In Merit Semi-Finalists." National "DSHA Holy Angels High School: Divine Savior academic challenging comprehensive a offers gradu- of our percent approximately program; two new state- college. . . . DSHA offers ates attend fully-configured with 62 computer labs of-the-art throughout the to students available workstations day." information, much more contained

Given that facts, stipulation to the the exhibits attached within the children who to infer that be reasonable it would profes- schools and the these sectarian would attend would focus on teach in them educators who sional class, in math on chemis- they are mathematics when class, and on chemistry are in they when try If of the moment. topic that is the when penmanship not in the the students would past, had not done so they by success shown the academic have achieved exhibits. this court does not

Furthermore, record before teachers of secu- religious preference indicate any schools. Nor was in the subjects lar provided type information about the of textbooks used subjects. to teach secular Drs. Fuller and White's report public high does show that for the schools listed 18, in Table affiliation ofthe students who 1993-94, attended those schools differed from that of sixty percent the institution as much as and the exhibits reflect that children all creeds are welcomed. conflicting

Given the factual inferences revealed appeal record, I am mindful that this occurs summary judgment. a motion On record, after this a conclude, law, court cannot as a matter of that all sub- taught jects that will be at sectarian schools will be religious message. Vocational, infused with a Techni- Educ., DILHR, and Adult 230, cal Dist. 13 v. 76 Wis. 2d (1977) (concluding 41, N.W.2d that there only must be one reasonable that can inference be presented from drawn the facts before factual deter- law). may mination made be as a matter presumption religion Furthermore, a would be injected subjects present Ball, in secular was which Agostini instructing presump- overturned, that such a may not in each tion be valid educational institution. Agostini, Supreme 117 at 2010. S.Ct. The Wisconsin "pervasively Court has also concluded that sectarian" a factual determination. "The determination religious pervasively whether an institution is is to be regard made with to the entire context in which the operates." institution State ex rel. Health Wisconsin Lindner, 145, 158, Facilities Auth. v. 91 Wis. 2d (1979). Therefore, N.W.2d the conclusion that religious sponsors statute a indoctrination now requires support However, a it. factual record to no conclusive factual record exists here. 119.23(7)(c), requires the addition,

inAnd STATS., by choice of each student's the to abide schools partici- regard will parents the student to whether in activity. religious limit any does not pate The statute in religion activity" "religious in which occurs to that religious opt-out of all choice to have the class. Parents unwilling presume, Therefore, I am activities. unsupported record, that factual conclusive a attempt to violate participating will schools sectarian religious regarding activi- the law mandate of the clear religiously simply focused have some ties, because holding Agostini, given And, mission statement. relig- sponsored presume that state not a court should symbolic union between or a indoctrination ious payments of the virtue and state occurs church parents it is the because under made to parents Agostini, religion, State. not the choose who may say not that there That is not to 117 S.Ct. at 2010. participating infused that are so schools be certain messages at a attendance that even with religious instruc- constitute class would mathematics determine how insufficient to this record is tion, but Fur- are conducted. in secular classes instructions challenges thermore, individual constitutionality before this statute are not 672, Richardson, 403 U.S. Tilton v. court. See (1971) deciding (holding a facial constitu- on that only improper challenge, limited to consider it is tional applications). hypothetical majority clause the benefit concludes by Reynolds challenge ex rel. and State is controlled City Dist. No. 8 Bd. Sch. Weiss v. District (1890). I Edgerton, While 177, 44 N.W. 967 76 Wis. develop- guidance provides agree on the case that each jurisprudence, neither case is clause ment of benefits

80 dispositive appeal majority's of this and the reliance on misplaced. them is busing

First, Parental Choice differs from the at Reynolds agree parties issue in all because that there purpose underlying passage was a valid secular Reynolds, specifi- Parental Choice. inWhile the Court cally attempt concluded that the act was an to benefit safety promote schools rather than to payments school children.30 Furthermore, made pay only under the Parental Choice will programming the educational services Parental Choice They supplant students receive. will not costs that the schools would have had not were it for Parental Second, Choice.31 later cases retreated have from analyzing broad edicts of Weiss when benefit clause challenges. example, For I Nusbaum addresses a change "religious seminary" in the definition stated in Weiss: the corollary point

On of whether the univer- sity here is to be as of the "religious considered one state, theological agree seminaries" this we university, that in all of operations, its cannot be completely considered as a secular institution. However, Tilton32 lessens the reach of earlier deci- sions of this court33 insofar as the first amendment concerned, accept entirely and we as decision persuasive, controlling, establishing even not if 30 73, at See discussion above. 31 62-64, See discussion at above. 32 (1971). Richardson, v. 403 Tilton U.S. 672 215, Weiss, Reynolds, at Wis. at Wis. 2d regard specifically were limited Nusbaum I in conclu their "religious sions that schools are seminaries" as I, I, n.33, Article referenced in 18. Nusbaum 55 Wis. 2d at 335 198 N.W.2d at 660 n.33. on based various between function

difference university operation. aspects of the at I, 334, 2d 198 659 55 Wis. at N.W.2d Nusbaum added). Respon- (emphasis I the Therefore, conclude beyond prove, to a have met their burden dents not doubt, Choice violates the reasonable that Parental benefit clause.

b. Clause. Compelled Support support compelled §I, clause of Article 18 The any person compelled "[N]or attend, to states, shall be any place worship." majority support erect or of opinion also Parental violates concludes that Choice mainly clause, to due Weiss. this may "Compelled support" in terms be examined money. participation Weiss, it in terms of In was religious activity participation in a based on both: (Bible contrary reading) of some that was the beliefs taxpayers' support financial of the students and reading Bible In order to school where the occurred. challenge the constitu- examine within the words of reading tion, the Court first decided that Bible was "worship." 213, And, Weiss, 76 Wis. at N.W. at 980. participation school, that occurred in because "place Court concluded that the school became a worship," reading at least for the time when the Bible occurring. concluding reading In Bible was Id. compelled support clause, it determined violated taxpayers compelled pay for the that because were through they being compelled taxes, their were school support place worship relig- a violation of guaranteed § I, in Article 18. ious freedoms Weiss open question a which has leaves religious teaching during of whether school part

a of its schedule a place worship subjects being when secular are taught. Thompson,

In Holt v. Wis. 2d 225 N.W.2d (1975), pro- the Court examined statute which public vided for released time from school instruction so that students could attend education clas- reports required ses. Attendance were from religious organizations monthly basis, on a as the clas- public ses were not conducted in the schools. In this regard, challenge compelled support, on focuses participation. holding the of sense In act the constitu- 1) participation tional, the Court noted that: in religious only "permitted," education was as attend- 2) voluntary; parents ance was the a chose whether religious child would instruction, State; attend not the 3) though require even the State did attendance reports, reports compel those to were not attendance at religion prevent deception by classes, but rather to stu- "heading pool dents were who to the local hall." at Id. pointed 676-77, 225 N.W.2d at 683. The Court out also might application that there while be some of the stat- operate compel ute which would to a student to attend place support worship, challenge a such a could facially not made to be the statute as enacted. Id. at 677, 225 N.W.2d 683. at complies principles

Parental with Choice the require parent any Holt. does It not to send his/her religious a child to school. That is left choice to parents. require any relig- participation It does in not activity. parents. ious participating That choice is left to the The required, notwithstanding

schools are any religious they may have, affiliation which to admit exception limited basis, students on a random with giving preference already siblings to in attendance. parents Furthermore, if to send choose their children religious classes, a that was that is choice education long approved Holt, as instruc- the Court in so public place take in a school. tion does not hold- does not run afoul of the Parental Choice also ings and the later cases which examine of Weiss found in Weiss. constitutional terms definitions of provides opportunity an for alternate Parental Choice from lower-income families. education for children only way give is State can do that which the money opportunity. parents that tied to educational is taxpayers are occurs, it does not follow When that worship. compelled support place Rather, tax- supporting payers a social welfare are designed those to increase academic achievement for Additionally, it most. if one focuses on who need money programs paid to citizens for social State receive, one rather on the citizens than the benefit many programs state-funded are could conclude that constitutionally e.g., payments medi- infirm, state hospital, cal delivered in a state care nursery payments provided for childcare in a sectarian secondary programs.34 many post educational presented Furthermore, sum- the record this mary proceeding judgment for this court insufficient 39.435(5), Stats., provides talent Section educational grants may which be used in sectarian institutions. incentive 39.44(2), STATS., minority provides undergraduate Section 39.45, may religious in grants be used schools. Section which education, need, Stats., provides grants higher based that for on any private nonprofit spent public can be at educational And, 39.46, provides payments Mar to institution. Stats., School, to of the quette Dental structured meet concerns religiously I only Court in choice was a Nusbaum where required that and the Court certain assurances affiliated school teachings secular sectarian would not be intermixed. conclude, to as a matter law, the sectarian eligible participate "perva- schools that are to are so sively possible parent sectarian" that it isn't for a religious choose that his or her child not receive example, stipulation pro- instruction. For of facts "approximately vides there were 89" sectarian schools eligible participate during in Parental Choice year, 1995-96 school but the record contains materials only pro- from 51 sectarian schools. No information is remaining religious vided about the schools. There provided subjects is no information about how secular taught religious persuasion are or about the presented teachers who teach them. The factual record just capable supporting is many as the conclusion that religion only

of the sectarian schools teach in religion hospi- class, much as mass is said in a Catholic day, hospital provides quality tal each patient but the also any religious message, care that is not tied to as majority's "pur- it is the conclusion that there is a poseful religion" subjects. infusion of in all complete

A factual record is critical to this court because Nusbaum I directs that we must examine the specific function at issue and the reason for the func- tion before we can conclude whether it is sectarian or example, nonsectarian. For the function of mathemat- ics manner classes the sectarian schools and the they being taught questions which are are which must necessarily enter into our consideration of whether an institution is so sectarian that even attendance at mathematics class entails indoctrination. I, Nusbaum 55 Wis. 2d at at N.W.2d 660. Additionally, sweeping I Nusbaum limits some of the language Reynolds, thereby giving in Weiss and further support Appellants' argument parents that because can choose whether to send their children to a secta- choose to and can in the first instance

rian school exempt activities, from all their children compelled support in of not result Choice does Parental worship. place of a underlying sight the reason lose of

One must not compelled support §I, 18. It is to clause of Article making pro-religion prevent choices for the State from making parents prevent from It is not to its citizens. pro-religion The State must choices for their children. preferring regard religion, in neither remain neutral hostility evincing Choice towards it. Parental nor neutrality. paraphrase Justice To that maintains likely is Witters, reasonable observer in no O'Connor by enacting Choice, Parental the State that conclude compelling pre- endorsing, promoting, Wisconsin ferring religious practice Therefore, on the or belief. has court, I conclude Parental Choice before the record compelled support proven to violate the not been clause. majority of a con- summarizes its conclusion

The in that violation the statement stitutional many the sectarian schools and methods of "missions program, eligible participate amended show in the worthy being of them are at least as that some worship' Edgerton 'places as was the Public deemed completely above School in 1890." As set forth more incorporates a factual find- dissent, this that statement subjects taught ing would be about how secular support. that the record does not sectarian schools money, pro- majority on the social also focuses on not programs generally gram at issue. Social welfare my determination, Therefore, state funds. it is involve Respondents not met their record, this have on proving Parental Choice violates the com- burden of pelled support beyond clause, a reasonable doubt in all possible applications. §X,

2. Article 3. Respondents challenge The also Parental Choice § under X, Article 3 of the Wisconsin Constitution, which states: legislature

The shall provide by law for the estab- schools, lishment of district which shall nearly be as practicable; uniform as and such schools shall be free and without charge for tuition all children ages between the years; of and 20 and no sectarian therein; instruction shall be allowed but the legisla- ture by may, law purpose of religious schools, instruction outside the district authorize during release of students regular school hours. Necessary challenge any to this is their assertion that payments parents school which receives from under meaning this is a "district school" within the Supreme §X, of Article 3. The Wisconsin Court recently addressed this Grover, contention Davis v. (1992). 166 Wis. 2d There, N.W.2d 460 it was conclusively only public decided that schools are "dis- payments directly trict schools" and that to the schools participated plan which in the initial school choice did public not transform those schools into schools. Id. at appreciated 540, 480 N.W.2d at 474. While it is pro- there are some differences in the two school choice grams, they distinguish are not sufficient to Davis. § IV,

3. Article 18. Respondents challenge further Parental bill, Choice as a local IV, under Article 18 of the Wis- Constitution, states, consin which "No or local legislature may passed shall bill which be subject, and that shall be more than one embrace expressed designed provision was to: in the title." This 1) encourage legislature time to laws to devote its 2) public state; the entire be certain which affect subject opportunity matter of to know of the had the legislation 3) avoid the consideration; under legislative appearance favoritism and discrimina applicability. limited tion that can occur with laws of H.S.S., v. 130 Wis. Brewers Baseball Club Milwaukee (1986). Challenges 254, 266 79, 107-08, 2d 387 N.W.2d began that an act as a local bill on an assertion based process by the to determine whether are first examined presumption passed a which the bill was deserves constitutionality then to determine whether the challenged the act a or local bill within was meaning 520, Davis, 166 Wis. 2d at of Article IV. examin at 466. There is a distinction between N.W.2d ing constitutionality process which created legislation and the substance of the law as enacted. Sewerage Metropolitan City Milwaukee v. of Brookfield 896, 912-13, 426 N.W. Dict., 144 Wis. 2d (1988). process Parental Choice was enacted

The which log-rolled smuggled proper. was not or was bill thoroughly through legislature. It was debated on Assembly and extensive the floor of the public hearings and the Senate many locations,

were held in such as Cedarburg, Portage Milwaukee, Madison, and River against Parental Choice Falls. Interests both for bring ample opportunity their to the had concerns legislature. Therefore, I conclude that attention of presumptively constitutional and Parental Choice is heavy proving Respondents a bear the burden of beyond a reasonable doubt. constitutional violation examining began When whether Parental Choice given bill, as a local Davis directs consideration be to: 1) particular people, places whether it refers to 2) things; prohibited category whether it involves a 3) §IV, under Article 31; or whether it creates a closed Davis,

classification. 166 Wis. 524-25, 2d at N.W.2d at concern, 467-68. The third that of a closed only class, is the focus here because Milwaukee stu- eligible present. dents are at challenge

The same was made and decided favor constitutionality Respondents urge in Davis. The notwithstanding this court issue, to reconsider the changes Davis, because there have been in the statute holding. agree. that undermine that I do not The fac- tors which controlled the Court's decision there appellate modify remain, and if an court is to the con- changes clusions reached in Davis based on the in the program, current school choice that must be done Supreme Therefore, Wisconsin Court. I conclude controlling precedent, on based Parental Choice was not local bill.

Public Purpose. Respondents

The contend that Parental Choice public purpose. public was enacted without a valid The purpose requires "public expenditures doctrine may only public purposes." be made Davis, for 166 Wis. "[W]hat 540, 2d at at N.W.2d 474. constitutes a public purpose question inis the first instance a for the legislature opinion to determine and its should be given great weight." Warren, 44 Wis. 2d at public appropri- And, N.W.2d at 795. when funds are private program institution, ated for use at a the must subject accountability requirements to controls and be guard public justify sufficient to the interests which expenditure. 215-16, at 796. the Id. at 170 N.W.2d accountability reasonably "Only as such control and is necessary public to attain the under the circumstances purpose required." 216, 170 at at 796. Id. N.W.2d improving dispute that the academic

There is no public achievement of lower-income students is a valid purpose. dispute the Rather, the centers on whether under the circumstances. I look controls are reasonable guidance regard. There, in this the Court to Davis for 1) require: schools examined controls that provide to plies their students with an education that com 2) quality § 118.165, Stats.;

with subject regard progress education in to student be 3) parents their standards; measurable to choose for likely promote aca own children that which is most 4) program achievement; demic and the cost of the be Davis, 542-46, 480 restricted. 166 Wis. 2d at N.W.2d at by legislature instituted for 475-77. controls up Parental Choice measure to those found sufficient comply First, all the in Davis. requirements the schools must with 119.23(7), § 118.165, Second, Stats. quality Third, sets forth measurable standards. STATS., parents making of the children are still the choice children, fourth, school their own the cost of scope application is limited of its providing programming the cost of educational per-pupil for the Parental Choice students or the Schools, amount allocated to Milwaukee Public which Therefore, I ever is less. conclude that Parental Choice public purpose does not violate the doctrine. Protection. Equal Respondents request

The NAACP this court to conclude that its claim that Parental Choice violates equal protection provisions of the United States and Wisconsin constitutions remains viable and can be proceeded upon, if this court should reverse the circuit court and conclude Parental Choice is constitutional. stayed by Because the claims the NAACP made were majority opinion the circuit court and because the con- unconstitutional, cludes that Parental Choice is thereby giving seeks, the relief it there the NAACP is no reason to the matter further at this time. consider

CONCLUSION which Parental Choice is social welfare (a provides opportunities religion-neutral educational benefit) (a relig- to children from families lower-income class). money paid ion-neutral Because the to the equal spent parents to, for, and must the costs to be participating providing pro- schools of educational gramming, payments provide an incentive do not parents religious schools, to send their children to keeping rather than them in Milwaukee Public Additionally, payments Schools. the schools receive no "for the benefit of' seminaries. The schools programming payments receive for the educational they participate provide in the to students who program.

Although parents permit chil- can choose to their opportunity dren to exercise this educational they their chil- schools, sectarian can also choose that any religious participate activities. If dren not choice, certain schools were not to honor that as may majority suggests occur because of some mission statements, it not follow that Parental Choice is does recognition Rather, what follows is a unconstitutional. compliance not be in with the that those schools would act. parents

Furthermore, for those students whose permit religion choose to them to attend class, a similar approved by Supreme choice was the Wisconsin Court parents in Holt. That are able to make a choice which religious component only has a payments they because of the state unique

receive, is not to Parental 1) examples Choice. Other are: the choice a citizen religiously makes when he is treated in a affiliated hospital, prays chaplain day, with the each and the 2) pays hospital's parent State bill; a choice daycare makes to have his/her child cared for in a operated by religious organization, which is and the 3) pays daycare State bill; the choice students make colleges, provides to attend sectarian money and the State permit pursuant §§ that choice 39.435 and 39.44, STATS. Neither the federal nor the state constitu- by any tion is contravened of these choices because the advancing religion through State is not the social wel- provides. fare benefit it It is the individual citizen who setting chooses to use a state social welfare benefit in a religious Douglas that has a connection. As Justice quoted approval King: wrote, and as was with When the encourages religious state instruction ... it follows the best of our traditions. it For then respects the religious nature of our people and public accommodates the service spiritual to their needs. To hold that may it not would be to find in a requirement Constitution govern- ment show a callous religious indifference groups. That would be preferring those who believe religion no over those who do believe. King, (citing 185 Wis. 2d at 46, 517 N.W.2d at 680 (1952)). Zorach Clauson, v. 343 U.S. 313-14 Because I conclude that Parental Choice neither promotes religion it, leaves nor is hostile to but instead they parents choices with the where are con- stitutionally permissible, respectfully I must dissent.

Case Details

Case Name: Jackson v. Benson

Court Name: Court of Appeals of Wisconsin

Date Published: Aug 22, 1997

Citation: 570 N.W.2d 407

Docket Number: 97-0270

Court Abbreviation: Wis. Ct. App.