A Wisconsin judge has prevented Milwaukee's school vouchers program from including parochial schools or expanding to include thousands of additional students.

"We do not object to the existence of parochial schools or that they attempt to spread their beliefs through the schools," Dane County (Wis.) Circuit Court Judge Paul Higginbotham said in his January 15 ruling. "They just cannot do it with state tax dollars."

The judge left intact the current program, which includes 1,650 students in nonreligious private schools, granting that " 'school choice' may in fact be sound public policy, especially considering the sad plight of the Milwaukee Public Schools system." Whether it is sound policy, he said, is a question best left to the legislature.

"We do not oppose the current program per se," says Steve Green of Americans United for the Separation of Church and State, which cosponsored the lawsuit against the program with the American Civil Liberties Union (ACLU). "But there is always the concern that nonsectarian programs like this will be expanded to become sectarian."

APPEAL FILED: Voucher advocates, including Wisconsin Gov. Tommy Thompson, have taken their cause to the Wisconsin Court of Appeals and hope to reach the state supreme court by summer. Whatever happens, the ruling likely will end up as a test case before the U.S. Supreme Court.

The Wisconsin Supreme Court has heard the case before. A year ago the court granted an injunction against expanding the program, but deadlocked 3 to 3 on the inclusion of religious schools, sending the case to Higginbotham.

Pete Hutchison, a lawyer for Landmark Legal Defense Foundation, a public-interest law firm in Kansas City, Missouri, says that if the state supreme court hears the case, prospects for voucher success improve.

"The makeup of the court is different. One of the no votes is no longer there," he said. "Also, some of the justices were hesitant because there was no record and no lower court decisions. Now there are." Hutchison represents Democratic State Rep. Annette "Polly" Williams, who coauthored the program with the Republican governor.

RELIGIOUS DISCRIMINATION? Voucher supporters argue that excluding religious schools is discriminatory and does not respect parents' school choice.

"Our government routinely provides financial assistance to citizens who are being served by religious organizations," says Daniel McKinley, executive director of Partners Advancing Values in Education (PAVE). "Where is the wall [between church and state] when an elderly person uses Medicaid funds in a Lutheran nursing home or when a homeless person is fed by a state-funded Catholic agency?"

Higginbotham also rejected expansion of the program to include 15,000 students, even if the students attended nonreligious private schools. Higginbotham argued that the amended program, which dropped evaluation requirements, would no longer be the statewide experiment that the legislature approved, but would be a large-scale local program requiring different legislation. Milwaukee's six-year-old program pays an average of $3,600 per year for low-income families to send a child to a private school.

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