Milwaukee's Experiment - vouchers for religious schools in Milwaukee, Wisconsin

National Catholic Reporter, March 26, 1999 by Erik Gunn

Questions persist about civil rights laws in schools taking voucher dollars

One year after Milwaukee's religious schools became the first in the nation to participate in a publicly funded vouchers program, tough questions persist here about whether private schools can take public dollars without the strings usually attached.

The biggest unresolved dispute centers on state and federal civil rights laws, which religious schools in Milwaukee -- including Catholic schools -- say shouldn't apply to them. State education officials think otherwise, and some observers believe it may take a lawsuit to settle matters.

A potential threat to the religious identity of faith-based Schools also looms in the form of an "opt-out" provision in the vouchers law, allowing parents to exempt their children from religious activities.

So far, the provision has not been tested. But observers warn that should a parent really push the limits of the law, it could raise hard questions about how much religious identity schools are willing to compromise in order to hang on to public funding.

Since 1990, Milwaukee has been front line in America's escalating national debate over school choice. While some forms of choice operate exclusively within public school systems, Milwaukee's program gives parents public dollars to send their children to any school, public or private. This year for the first time that choice includes religious schools.

African-American Democratic state Rep. Polly Williams was the key figure in creating the program, working in concert with business groups and conservatives. Williams was motivated by what she saw as decades of neglect of impoverished urban schools. If wealthy and middle-class parents could flee these dysfunctional schools, she argued, why shouldn't poor parents have the same option?

Her supply-side allies, meanwhile, saw competition as a cudgel to force public schools to reform. The former Republican governor of Wisconsin, Tommy Thompson, was the leading exponent of this view.

Initially restricted to low-income families in the Milwaukee public school district, the voucher program opened in September 1990 with 341 students. A lower court judge restricted the program to secular private schools on the basis of church/state separation, but after the Wisconsin Supreme Court overturned that ruling, the program expanded to include religious schools. In early November, the U.S. Supreme Court declined to review the case.

Reviews of how effective vouchers have been in Milwaukee are mixed; two studies prior to the decision to include religious schools reached opposing conclusions. One said vouchers boost student achievement; another found they have little impact.

That ambiguity has done nothing to slow the demand for choice, however. Since the ban on religious schools was lifted, the number of children drawing vouchers in Milwaukee has quadrupled to 6,155 (4,000 in religious schools), and the number of participating schools has tripled to 87, including 40 Catholic schools.

Despite the repeated promises of voucher advocates that religious schools would be free to operate just as they always had, a dispute over civil rights has rekindled doubts that private schools can take public money and evade the mandates that have always encumbered public schools.

The issue is not just a legal matter, educational experts say. If private schools don't have to face the same restrictions as public schools, it skews the vouchers experiment --which is supposed to be about how competition stimulates excellence -- by giving an unfair advantage to one side.

The Wisconsin circuit court judge who wrote the original decision allowing choice to go ahead asserted that as recipients of taxpayer funds, participating schools would have to comply with state and federal nondiscrimination laws.

The state Department of Public Instruction put out a list of such laws, including ones barring discrimination on the basis of sex, age and handicap. The list included laws governing access to and release of students' records and would have obligated schools to observe state and federal constitutional guarantees of freedom of religion, expression, association, equal protection and due process, as well as freedom against unreasonable search and seizure.

In theory, these rules could have required religious schools to provide special services for disabled students or to not discriminate against homosexuals in hiring.

The department told school administrators to sign and return statements vowing to uphold these laws. But when religious schools were faced with doing so, they balked.

"We didn't feel that that was part of the choice program," says Roger Laesch, superintendent of schools for the Wisconsin branch of the Lutheran Church-Missouri Synod, which has nine schools in the vouchers system. Laesch said religious schools concluded that the rules were being advanced "to hamper our schools" from participating.

Fear of litigation

Capuchin Br. Bob Smith, president of Messer High School, a Catholic school on Milwaukee's north side, said religious schools feared exposing themselves to litigation over alleged violations, ranging from due-process provisions to handicap discrimination laws. Indeed, Smith said state officials initially questioned whether single-sex schools would automatically violate the regulations but backed down from that position.