Wisconsin
Wisconsin’s Supreme Court has long been a leader in laying the constitutional groundwork for educational choice programs, having upheld a voucher program under the state’s Blaine Amendment prior to the United States Supreme Court’s decisions in Espinoza and Zelman. Those decisions only reinforce what the Wisconsin Supreme Court held in Jackson v. Benson and Davis v. Grover. As such, all forms of educational choice remain constitutional in the Badger State.
Constitutional Provisions
Compelled Support Clause
“[N]or shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent .…” Wisconsin Const. Art. I, § 18.
Blaine Amendment
“[N]or shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.” Wisconsin Const. Art. I, § 18.
Education Articles
“The legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable; and such schools shall be free and without charge for tuition to all children between the ages of 4 and 20 years; and no sectarian instruction shall be allowed therein .…” Wisconsin Const. Art. X, § 3. (as amended April 1972).
“Provision shall be made by law for the establishment of a state university … and no sectarian instruction shall be allowed in such university.” Wisconsin Const. Art. X, § 6.
Relevant Case Law
Freedom from Religion Foundation, Inc. v. McCallum, 324 F.3d 880 (7th Cir. 2003)
The 7th U.S. Circuit Court of Appeals held that the state’s contract with a Christian “halfway house” did not violate the Establishment Clause because prisoners were able to choose that particular program from a range of other, secular options and prisoners were not pressured to be Christian or convert to Christianity before participating. The court compared the “halfway house” program to the education vouchers at issue in Zelman and concluded that neither provided unconstitutional support to religion.
Freedom From Religion Foundation, Inc. v. Bugher, 55 F. Supp. 2d 962 (W.D. Wis. 1999)
A federal district court held that the state’s subsidization of internet wiring at a religious school does not violate the Establishment Clause because all schools are eligible for subsidies, without regard to whether they are religiously affiliated, because the telecommunications conduits provided are neutral as to information passing through them, benefits flowing to religious schools are small relative to the total program, and religious schools are not being relieved of a burden they previously bore, as they would not be participating in this particular internet linkage but for the availability of the subsidy.
Vincent v. Voight, 614 N.W.2d 388 (Wis. 2000)
In a suit challenging the state’s school finance system, the Wisconsin Supreme Court held that its education provision requiring uniform public schools (Article X, Section 3) related to the character of instruction offered in the public schools and not the size, boundaries or composition of the school districts. The clause does not require absolute uniformity in either educational offerings or per-pupil expenditures among school districts.
Jackson v. Benson, 578 N.W.2d 602 (Wis.), cert. denied, 525 U.S. 997 (1998)
The Wisconsin Supreme Court held that the Milwaukee Parental Choice Program does not violate either the state’s Compelled Support Clause or its Blaine Amendment because students are not compelled to attend religious schools and any benefits to such schools are incidental. The Court also affirmed the conclusions of Davis, an earlier uniformity challenge to the school choice program.
Davis v. Grover, 480 N.W.2d 460 (Wis. 1992)
The Wisconsin Supreme Court upheld the Milwaukee Parental Choice Program from a legal challenge under Wisconsin’s uniformity provision (Article X, Section 3). The Court also rejected opponents’ claim that the program violated Article 4, Section 18 of the Wisconsin Constitution, a prohibition on private or local bills.
State ex rel. Wisconsin Health Facilities Authority v. Lindner, 280 N.W.2d 773 (Wis. 1979)
The Wisconsin Supreme Court held that the Wisconsin Health Facilities Authority, which was created to improve healthcare services by providing tax-exempt bonds to Catholic hospitals, among others, does not violate Wisconsin’s Compelled Support Clause or Blaine Amendment because the aid flows predominantly to the secular aspects of health care and therefore does not have the primary effect of advancing religion.
State ex rel. Holt v. Thompson, 225 N.W.2d 678 (Wis. 1975)
The Wisconsin Supreme Court held that a “released time statute,” which allows students to leave school for part of the day to receive religious instruction, does not violate the Establishment or Equal Protection Clauses of the U.S. Constitution or the freedom of worship or district school sections of the Wisconsin Constitution. Students only leave and pray if they want to and no public funds are used to accommodate those who do.
State ex rel. Warren v. Nusbaum, 219 N.W.2d 577 (Wis. 1974)
The Wisconsin Supreme Court held that the state may contract with private institutions to provide educational services for disabled children without violating the First Amendment or Wisconsin’s Compelled Support Clause or Blaine Amendment because the primary effect of the contract was not the advancement of religion, but the provision of educational services to handicapped kids.
State ex rel. Reynolds v. Nusbaum, 115 N.W.2d 761 (Wis. 1962)
Seeing no difference between aiding students and aiding the institution those students choose to attend, the Wisconsin Supreme Court held that transporting private school students on public school buses violated Wisconsin’s Blaine Amendment. Although the Court conceded that the state may indirectly aid religious groups by providing fire and police protection, it struck this statute because, the Court said, it had the practical effect of singling out a particular religious group for special benefits.
State ex rel. Conway v. District Board of Joint School District, 156 N.W. 477 (Wis. 1916)
The Wisconsin Supreme Court held that Wisconsin public schools may hold their graduation ceremonies in local churches without violating the state constitution’s Religion Clauses or its education provisions. Taxpayers were not compelled to pay for use of the church or the services of the priest who gave the nonsectarian introductory prayer. Additionally, no religious instruction occurred during the ceremony and no denomination was favored over others.
Existing Private School Choice Programs
Milwaukee Parental Choice Program
Wisconsin Statutes Section 119.23
Special Needs Scholarship
Wisconsin Statutes Section 115.7915
Parental Private School Choice Program (Racine)
Wisconsin Statutes Section 118.60
Parental Choice Program (Statewide)
Wisconsin Statutes Section 118.60
K-12 Private School Tuition Deduction
Wisconsin Statutes Section 71.05(6)(b)49
What You've Heard About Blaine Amendments
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
What You Need to Know After Espinoza
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
