Institute for Justice Offers Brief Analysis of Milwaukee Decision

John Kramer
John Kramer · June 10, 1998


The 4-2 ruling by the Wisconsin Supreme Court upholding the expanded Milwaukee Parental Choice Program is a total, unconditional victory for school choice. Here are the important features of Justice Donald Steinmetz’s exceedingly thorough and well-reasoned 68-page decision:

1. The First Amendment issue was carefully considered. The opinion tracks recent U.S. Supreme Court decisions holding that a program allowing the use of public funds in religious institutions is permissible if (1) the program is neutral between religious and secular options and (2) parents or children direct the funds. The Court recognized that private and religious schools are available within a broader array of educational choices.

2. The Court ruled under the Wisconsin Constitution that the program does not operate primarily for the “benefit” of religious schools, but rather that children are the beneficiaries.

3. The Court dismissed all other claims, including the NAACP’s claim that the program unconstitutionally segregates Milwaukee schools.

4. The Court ruled that children who were eligible in 1995 but who subsequently enrolled in private schools with PAVE scholarships retain their eligibility.

5. The dissent was a mere paragraph and only addressed the Wisconsin Constitution provision on religious establishment. Hence the First Amendment issue was decided by a 4-0 vote.

The only place for the opponents to go is the U.S. Supreme Court. We would welcome their appeal given that this decision is so solid. Unless the U.S. Supreme Court enjoins the expansion, which is highly unlikely, the expansion will commence this September.

Because it addresses First Amendment issues, this decision could have major impact on cases pending before state supreme courts in Ohio, Arizona, Vermont, and Maine.