Rifts Grow in Voucher Movement

WIsconsin Case Lands in the Courts but Controversy Escalates

By Barbara Miner

Wisconsin’s attempt to institute the nation’s first publicly funded voucher program for religious schools has landed before the state’s Supreme Court, which immediately suspended the new program until the legal issues are resolved.

Thus the top educational priority of the conservative movement is in legal limbo. Further, the case will likely go to the U.S. Supreme Court in order to resolve whether the program violates the Constitution’s provisions on the separation of church and state. While one might expect the voucher controversy to quiet down as it winds its way through the legal system, the opposite is happening. The political and educational contradictions are, if anything, intensifying.

Rifts within the Wisconsin voucher movement have become increasingly public in recent weeks. The leading Black legislator associated with the program, Rep. Annette “Polly” Williams (D-Milwaukee), has pointedly criticized the business community and its goal of an unrestricted voucher program serving private schools rather than, as is currently the case, a limited program targeted at low-income minority parents.

“We have got our Black agenda and they have got [their own] agenda,” Williams said of the business community in an interview in the Sept. 10 Milwaukee Journal/Sentinel. “I didn’t see where their resources really were being used to empower us as much as it was to co-opt us.”

Concern is also growing over the voucher program’s lack of accountability and the absence of mechanisms to measure, for instance, how students are doing academically, whether there are patterns of discrimination in discipline, or the racial breakdown of a voucher school. Given the lack of accountability and standards, critics argue that the program would set up a dual school system and would lead to inherently unequal educational opportunities.

Differing agendas and lack of accountability are not the only controversies, however. There is also a dawning realization that the voucher initiative raises a plethora of legal issues that go beyond separation of church and state.

In a legally separate but politically and educationally relevant case, U.S. Federal Judge Terrance Evans ruled this fall that the University School, an elite private school in the Milwaukee area, did not discriminate when it denied re-admission to an African-American student who had criticized the school as racist in a speech before her English class. In his opinion, Evans wrote: “It is an elementary principle of constitutional law that the protections afforded by the Bill of Rights do not apply to private actors such as the University School. Generally, restrictions on constitutional rights that would be protected at a public high school … need not be honored at a private high school.”

Following the legislation passed last spring, more than 100 schools applied to take part in Milwaukee’s voucher program; the overwhelming majority were religious schools. After the Wisconsin Supreme Court approved a temporary injunction against the new legislation on Aug. 26, the voucher experiment reverted to its previous parameters. As a result, only 17 non-sectarian private schools will take part in the program this year; they will enroll approximately 1,400 students.

The Milwaukee program began in 1990-91; it remains the country’s only publicly funded voucher program, although a similar program may begin in Cleveland next fall. Limited initially to 1% of students in the Milwaukee Public Schools, it provided the state portion of the MPS per-pupil expenditure (roughly $3,600 this year) as full tuition at participating non-sectarian schools. Eligibility was restricted to families at 175% the poverty level, or an annual income of $26,513 in 1995 dollars for a family of four. (The state has never verified income, however, even on a random basis; it is up to the schools to institute verification procedures.) The schools are prohibited from discrimination on the basis of race, color, or national origin, but are specifically exempted from providing special services to students with exceptional educational needs. There has never been a legal challenge to this exemption, however, according to Sue Freeze, who oversees the voucher program for the state’s Department of Public Instruction.

While initially a private school could only have 49% of its students entering as “choice” students, that figure was later raised to 65%. The percentage of MPS students allowed to take part was also raised to 1.5%. Finally, the initial program called for the Department of Public Instruction to conduct an annual study comparing student performance at the voucher schools. The studies have shown that students at the choice schools performed no better than MPS students. They also found that while there was a high degree of parental satisfaction, the number of students leaving the program and teacher and administrative turnover was high.

When the Wisconsin legislature expanded the voucher program last spring to include religious schools in Milwaukee, it also made a number of other changes. It allowed 7,000 vouchers for the current school year, and eliminated any cap after 1996-97. (Last year, 850 students took part.) Further, the legislation removed the 65% cap on choice students, and did away with any oversight of how well the voucher schools were doing. Thus what was a small, regulated experiment — even though from the very beginning critics argued it was a wedge to push for unrestricted vouchers — was being transformed into an open-ended program with virtually no public accountability. In the Republican-controlled legislature’s zealousness to pass the legislation, aided by Democrats such as Milwaukee Mayor John Norquist, few such questions were raised. (Three of the Milwaukee’s five African-American representatives voted against the voucher legislation, as did one of the two Black senators; the Milwaukee NAACP chapter has also consistently opposed the voucher plan.)


Even then, however, tensions were mounting in the pro-voucher coalition of Lutherans, Catholics, African-American political representatives such as Williams, conservatives such as the Lynde and Harry Bradley Foundation, and business interests such as the Metropolitan Milwaukee Association of Commerce. The key differences involved the business community and private schools’ desire to eliminate requirements that the schools must randomly select students and could not refuse admission based on prior academic performance; and the income caps on participating families.

Mayor Norquist was bluntest about the hope to eliminate the income caps. In an opinion piece in the Feb. 26 Wisconsin State Journal he wrote: “Unfortunately, the limitations on [Gov. Tommy] Thompson’s choice proposal include an income restriction that precludes participation by thousands of middle-class families in Milwaukee. Every student and parent should be allowed to direct some of the state dollars now expended on that student’s public education.”

Other differences were not as publicly discussed, but caused intense behind-the-scenes wrangling. Larry Harwell, William’s top aide, said this fall that the fissures dated to a June 1994 strategy meeting and Williams’ uneasiness is because the meeting was dominated by members of the business community. Nor was Williams present at a legal strategy meeting this summer attended by national heavyweights such as William Kristol, a leading conservative strategist and head of the Project for the Republican Future; Michael Joyce of the Bradley Foundation; Clint Bolick, an attorney with the Institute for Justice who is defending the program in court; and Kenneth Starr, the Whitewater special counsel whom Gov. Tommy Thompson has asked to intervene on the state’s behalf in the voucher case.

In recent weeks Williams has been especially critical of the role of Susan Mitchell, a well-known Milwaukee consultant who was hired by the MMAC to form a legislative strategy to pass the expanded voucher program. Williams was also upset by draft legislation written by Mitchell that would have eliminated the schools’ mandate to select students on a random basis. Furthermore, Mitchell explicitly rejected a proposal from Williams’ aide, Harwell, that would have protected the rights of voucher students. In a Dec. 1, 1994 memo, Mitchell noted that Harwell wanted to include legislative language designed to “ensure that choice students do not have fewer privileges or rights than other students in the school they choose and that they cannot be easily expelled.” Mitchell warned, how ever, that such additions might “have a chilling effect on private schools.” Harwell’s proposal was not included in the legislation.

Williams has also criticized Mitchell and the MMAC for setting up a separate organization to lobby for the voucher bill’s passage. “That whole idea infers that there was no organization at all in the [Black] community, and there was a need for the business community to organize us,” Williams said in a Sept. 17 interview with Mike Gousha of WTMJ television. “So herein is where the problem began, when people from the outside decided that they had to come in and organize us to carry out [their] agenda.” The organization Williams was referring to is Parents for School Choice, a group funded by the business community to lobby for vouchers; it was headed by Zakiyah Courtney, an African-American educator who for a few months supplanted Williams as the main African-American media spokesperson for vouchers. Courtney’s group disbanded in September; having served its lobbying purpose, it was no longer being funded by the business community.

Finally, Williams has said that Thompson’s proposal was not sufficiently supportive of Black religious schools, implying that its main focus was to prop up financially troubled Catholic and Lutheran schools, not to better serve the educational needs of the African-American community.

While increasing her criticism of the business community, Williams has not lessened her attacks on MPS, especially on the teacher’s union. And suspicion of the teacher’s union in the African-American community only intensified in September when School Board member Leon Todd, who was strongly backed by the union in last spring’s elections, called for the city’s African-American immersion middle school to be closed as a failing school. Among the series of allegations, Todd argued that the school’s curriculum fails to teach “traditional American cultural values.”


While a number of people have consistently raised concerns about accountability, the issue never garnered significant media attention during the legislative debate. However, concerns increased in August when Williams herself said she had been receiving calls from angry parents.

“Since the passage of the expanded choice program, I have been receiving calls from parents with complaints and concerns about the program,” Williams wrote to the head of the Pupil Assignment Council, a group that includes representatives from each voucher school. ‘Their basic message is that students and families are being screened out of the program through the use of fees, charges, and pre-academic conditions.”

In her interview with Gousha, Williams said that at schools hoping to take part under the new voucher legislation, including the religious schools, “fees” over and above tuition ranged as high as $700. At the 17 currently participating nonsectarian schools, “fees” range as high as $475, even though the legislation states that voucher students shall attend the private schools “at no charge.” Williams said she is asking the state Department of Public Instruction to promulgate rules to protect parents against such abuses. The thought of such regulations, however, is anathema to some conservatives because it undercuts the very purpose of a private education — to be responsible to private, individual concerns, and not to the public at large.

The August newsletter of the Wisconsin Parents Association, which serves homeschoolers in the state, noted that “many people are concerned about the fact that private schools that participate in choice programs will have to meet some kind of public accountability criteria, possibly agreeing to use state-mandated tests and assessments. This blurs the distinction between public and private schools and compromises the independence of state regulation that private schools have traditionally had. In other words, private schools cannot get public money without agreeing to public regulation and thus losing important freedoms in the process.”

Under Wisconsin legislation, a private school has minimal governmental supervision. According to Freeze of the DPI, it must be privately funded; it must provide 875 hours of instruction in the core curriculum areas; and it cannot be established to circumvent compulsory attendance laws. It must also notify the public school district in which it resides; it must report the number of students attending the school; and it must follow basic health and safety laws. There are no testing, curriculum, standards or anti-discrimination requirements.

Voucher schools have a few more regulations. According to Freeze, they cannot discriminate on the basis of race, color, national origin or gender. Further, they must meet one of the four following criteria: at least 70% of the students advance one grade level each year; or the average attendance rate is at least 90%; or at least 80% of students demonstrate significant academic progress, as determined by the school; or at least 70% of the families of students meet parent involvement criteria as established by the school. Because the students technically remain public school students, they theoretically carry with them to the private school certain rights such as due process in disciplinary matters.

The lack of standards led The Milwaukee Journal/Sentinel to note in a Sept. 24 editorial that accountability is “woefully inadequate” and “ridiculously low” at the voucher schools. “Proponents of choice argue that parental satisfaction is accountability enough, that unsatisfied parents would withdraw their children and the schools would fold,” the editorial noted. “But that standard falls far short of sufficient accountability for taxpayers.”


The state Supreme Court has also raised questions about the legal implications of the new legislation’s lack of accountability. After the court issued its temporary injunction, Gov. Thompson asked that the court allow all other aspects of the new legislation to proceed, except for the inclusion of religious schools. But the court stood by its original view that all aspects were on hold and that the program must revert to its 1994 provisions. In its response, the court asked both the defendants and plaintiffs to respond to concerns about Article 10 of the Wisconsin Constitution, which requires local governments to provide a “uniform system” of education.

The likely reason the oversight and monitoring measures were eliminated, as minimal as they were, was because of religious school’s concerns about government interference in their schools, according Richard Sax, one of the attorneys representing the MTEA in the lawsuit challenging the law’s constitutionality.

The religious schools are in a bind, Sax argued. One the one hand, they cannot completely skirt accountability measures because they risk violating the state constitution’s requirements for a “uniform system” of education. “But if they establish too many controls or supervision, they have a problem of entanglement [between government and religion], and the program would be unconstitutional because it would allow the government to interfere too much in the internal affairs of these church schools.”

This complex issue is just one of the many legal questions raised by the program, Sax continued. For example, religious schools currently are not subject to federal statutes such as the National Labor Relations Act, because the courts have ruled such laws would violate the U.S. Constitution’s prohibition against government intervention in the internal affairs of the church. “Theoretically, if teachers at a religious school presented a petition saying, for example, they want a morning break, the person circulating that petition could be fired,” Sax said. “Whereas in a public school or in the private sector, you can’t be fired for working with others to improve your working conditions.”

Compounding such legal complexities are issues of public opinion. If the legal issues are resolved in a way that grants religious schools special privileges, Sax predicts there would be a public outcry because the government “would be giving all kinds of money to these religious schools, and yet the schools wouldn’t have to abide by the same laws that everybody else has to abide by.”

Barbara Miner is managing editor of Rethinking Schools.