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.

Vouchers: Yes

Tax Credits: Yes

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

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.

Analysis and Recommendations

Both tax credit and voucher programs are school choice options for Wisconsin. Its constitution contains a Compelled Support Clause and a Blaine Amendment, but the Wisconsin Supreme Court interprets both in accordance with federal Establishment Clause jurisprudence. Even before Zelman, the Wisconsin Supreme Court upheld the groundbreaking Milwaukee Parental Choice Program from a legal challenge under the First Amendment and Wisconsin’s Compelled Support Clause and Blaine Amendment. The Wisconsin Supreme Court also rejected the first-ever uniformity challenge to a school choice program, holding that although the Legislature is required to provide public schooling to all, it can also offer additional educational opportunities outside the traditional public school system.

Model Legislation: Education Savings Account, Parental Choice Scholarship Program (Universal Eligibility), Parental Choice Scholarship Program (Means-Tested Eligibility), Special Needs Scholarship Program, Foster Child Scholarship Program, Autism Scholarship, Great Schools Tax Credit Program, Family Education Tax Credit Program

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