By ERIK GUNN
Special to the National Catholic Reporter
Milwaukee

One year after Milwaukee’s religious schools became the first in the nation to participate in a publicly funded vouchers program, tough questions persist here about whether private schools can take public dollars without the strings usually attached.

The biggest unresolved dispute centers on state and federal civil rights laws, which religious schools in Milwaukee -- including Catholic schools -- say shouldn’t apply to them. State education officials think otherwise, and some observers believe it may take a lawsuit to settle matters.

A potential threat to the religious identity of faith-based schools also looms in the form of an “opt-out” provision in the vouchers law, allowing parents to exempt their children from religious activities.

So far, the provision has not been tested. But observers warn that should a parent really push the limits of the law, it could raise hard questions about how much religious identity schools are willing to compromise in order to hang on to public funding.

Since 1990, Milwaukee has been front line in America’s escalating national debate over school choice. While some forms of choice operate exclusively within public school systems, Milwaukee’s program gives parents public dollars to send their children to any school, public or private. This year for the first time that choice includes religious schools.

African-American Democratic state Rep. Polly Williams was the key figure in creating the program, working in concert with business groups and conservatives. Williams was motivated by what she saw as decades of neglect of impoverished urban schools. If wealthy and middle-class parents could flee these dysfunctional schools, she argued, why shouldn’t poor parents have the same option?

Her supply-side allies, meanwhile, saw competition as a cudgel to force public schools to reform. The former Republican governor of Wisconsin, Tommy Thompson, was the leading exponent of this view.

Initially restricted to low-income families in the Milwaukee public school district, the voucher program opened in September 1990 with 341 students. A lower court judge restricted the program to secular private schools on the basis of church/state separation, but after the Wisconsin Supreme Court overturned that ruling, the program expanded to include religious schools. In early November, the U.S. Supreme Court declined to review the case.

Reviews of how effective vouchers have been in Milwaukee are mixed; two studies prior to the decision to include religious schools reached opposing conclusions. One said vouchers boost student achievement; another found they have little impact.

That ambiguity has done nothing to slow the demand for choice, however. Since the ban on religious schools was lifted, the number of children drawing vouchers in Milwaukee has quadrupled to 6,155 (4,000 in religious schools), and the number of participating schools has tripled to 87, including 40 Catholic schools.

Despite the repeated promises of voucher advocates that religious schools would be free to operate just as they always had, a dispute over civil rights has rekindled doubts that private schools can take public money and evade the mandates that have always encumbered public schools.

The issue is not just a legal matter, educational experts say. If private schools don’t have to face the same restrictions as public schools, it skews the vouchers experiment -- which is supposed to be about how competition stimulates excellence -- by giving an unfair advantage to one side.

The Wisconsin circuit court judge who wrote the original decision allowing choice to go ahead asserted that as recipients of taxpayer funds, participating schools would have to comply with state and federal nondiscrimination laws.

The state Department of Public Instruction put out a list of such laws, including ones barring discrimination on the basis of sex, age and handicap. The list included laws governing access to and release of students’ records and would have obligated schools to observe state and federal constitutional guarantees of freedom of religion, expression, association, equal protection and due process, as well as freedom against unreasonable search and seizure.

In theory, these rules could have required religious schools to provide special services for disabled students or to not discriminate against homosexuals in hiring.

The department told school administrators to sign and return statements vowing to uphold these laws. But when religious schools were faced with doing so, they balked.

“We didn’t feel that that was part of the choice program,” says Roger Laesch, superintendent of schools for the Wisconsin branch of the Lutheran Church-Missouri Synod, which has nine schools in the vouchers system. Laesch said religious schools concluded that the rules were being advanced “to hamper our schools” from participating.

Fear of litigation

Capuchin Br. Bob Smith, president of Messer High School, a Catholic school on Milwaukee’s north side, said religious schools feared exposing themselves to litigation over alleged violations, ranging from due-process provisions to handicap discrimination laws. Indeed, Smith said state officials initially questioned whether single-sex schools would automatically violate the regulations but backed down from that position.

Smith said religious schools worried that where handicapped students were concerned, each private school was being treated by the state as if it were an entire school system. In the public schools, individual schools have the right not to admit certain students with handicaps that they cannot serve; it’s the entire district that has an obligation to operate special programs for the disabled (or contract with private agencies to do so).

Smith said the Catholic schools are now discussing establishing a special school for students with disabilities in order to meet that demand within the choice program.

Public officials deny that enforcing existing civil rights provisions would have placed any new demand on religious schools. “Nonsectarian schools have been subject to those student rights since the beginning of the program,” said Charlie Toulmin, who oversees the vouchers program for the state. Toulmin told NCR that there was no indication that secular private schools had objected in the seven years they have had to comply.

Nonetheless, religious schools got the ear of the Republican-controlled state legislative committee empowered to amend the rules. In a public hearing in the summer of 1998, the religious schools turned out in force to argue for an exemption to the civil rights provision. By all accounts, Catholic lobbyists and spokespersons played a key role in the campaign.

It worked. The committee voted along party lines to suspend the requirement, meaning that religious schools were not compelled to sign anything promising to uphold civil rights laws.

Undeterred, state officials still maintain that those laws apply to the choice schools. In practical terms, Toulmin says, exempting them from the promissory note most likely means that parents wanting to challenge a school for violations would have to sue in federal court instead of state court.

Vouchers in the South

Chris Ahmuty, executive director of the ACLU’s Wisconsin chapter, says religious schools ought to be conscious of the history of similar efforts to wriggle out from under civil rights requirements. The nation’s first vouchers programs sprang up in the South in the 1950s to fund whites-only private academies as the public schools were desegregated. The same kind of racism, he said, has benefited Catholic schools in Milwaukee.

“I think it’s fair to argue that even if not by intention, in practice the parochial school system has been the recipient of white flight from Milwaukee public schools,” Ahmuty said.

In that context, Ahmuty said that Catholic schools face a special responsibility to uphold the full range of civil rights laws.

John Huebscher, executive director of the Wisconsin Catholic Conference, says the comparison of Milwaukee’s choice schools with segregated Southern private schools fails on several grounds.

For one thing, the private schools were created -- sometimes by state law -- expressly in response to integration, while parochial schools “have been there for decades.”

Moreover, he said, while the Southern schools were created for whites to avoid blacks, “what you see in Milwaukee is substantial support for choice from the African-American population. They want schools where their children can do well.”

Huebscher said there was ample reason for parochial schools to fear the enforcement of civil rights laws. He cited cases in which church-run programs that conducted pregnancy prevention counseling or fed the homeless or otherwise met social needs with government grants faced what he characterized as “undue scrutiny” over their religious content or even the presence of religious symbols in their facilities.

“With all of that in the background, we want to focus on the education of children and not on arguing about the character of the school and what someone’s interpretation of a regulation is going to be,” he said.

Huebscher said the Wisconsin Supreme Court decision treated money paid on behalf of children to attend private schools as a direct grant to their parents, who then made their own choice as to where to spend it -- not a form of payment to the schools themselves. Therefore, the allocation may not subject the schools to regulation as recipients of government funds, Huebscher said.

Random admission

In at least one instance, religious schools have been brought to heel by state authorities on the question of random admission for voucher students.

In February, an alliance of voucher opponents -- the NAACP and the People for the American Way Foundation -- complained in a letter to Wisconsin State Superintendent of Public Instruction John Benson that 35 schools appeared to violate the choice law’s requirement that participating schools use random selection in choosing which choice students they enrolled. Some failed to submit a random selection plan; others, including several Catholic schools, improperly gave preference to parish members or sought to exempt them from the random selection process.

The organization asked the state to withhold funds from offending schools until they corrected the situation.

Instead, state officials sent a letter to all 90 choice schools reiterating the random selection requirement and proffering a model random selection policy. In boldface type, the letter said:

“A choice school, in accepting students into the choice program, may not use as a criterion any information about an applicant such as the applicant’s race, ethnic background, religion, previous test scores, grades, membership in the parish, relation to school or church staff, agreement to the school’s policies or having a conference with the school.”

Toulmin, the letter’s author, told NCR: “We’re certainly not going to go back and take money away from schools that may not have followed a true random selection process last summer, but before schools will receive payment in the future and be in the program for next year, they’ll have to have a random selection process that I will go through line by line and then approve. If the process doesn’t meet my approval, they will not be included in the program for next year.”

Maureen Gallagher, director of Catholic education for the Milwaukee archdiocese, said that religious schools accepted the outcome, although they would have liked more flexibility. “Where it gets difficult for a parish is when they have people who qualify for choice who are also parishioners. The schools would like to give those people first choice and they can’t do it,” she said.

‘Opt-out provision’

Religious schools taking voucher money in Milwaukee also face pressure on another front: the law’s “opt-out” provision, which allows parents to insist that their children be exempted from “religious activities.”

What constitutes “religious activities,” has never been clearly defined. Schools say they’re making little or no change in what they require of their students in the way of religious instruction or activities. Officials from the state, from private schools and even from the American Civil Liberties Union -- which had fought unsuccessfully in court to block religious schools from the program -- all report that they have not encountered a single instance of parents seeking to exercise the “opt-out” provision.

Concern over the potential impact of the clause, however, has made some schools wary of choice. Pius XI High School, for instance, has had a long-standing requirement that all students must attend monthly Mass, though non-Catholics were not required to actually participate in it.

“Is that appropriate under the statute?” Principal Rick Pendergast asked rhetorically in an interview last summer. “Some say yes, some say no.”

The opt-out clause helped lead one denomination to skip choice almost entirely: the Wisconsin Evangelical Lutheran Synod. Like the much larger Missouri Synod, the Wisconsin Synod is an independent, conservative wing of Lutheranism separate from the mainline Evangelical Lutheran Church in America. (Mainline Lutherans do not operate any parochial schools in the Milwaukee area.) While the Missouri Synod schools lined up to take part in choice, only one Wisconsin Synod school did.

Dan Schmeling, administrator for parish schools at the Milwaukee-based Wisconsin Synod, said the synod’s schools already enrolled low-income students who qualified for $100,000 in privately funded scholarships. But schools didn’t like requirements that they select choice students randomly and allow them to opt out of religious activities.

“It’s our mission and purpose to make lifelong disciples for Jesus Christ,” Schmeling says. “We would be saying to people our purpose is to make you disciples of Jesus Christ, but you can opt out of that.”

Random selection, meanwhile, might end up bringing in students from families who “may or may not be that interested in what we believe is important in the Christian education of young people.”

Both the ACLU and many of the schools agree that so far, the opt-out clause has turned out to be a non-issue, although they don’t entirely agree on why.

School leaders say it’s because parents who choose religious schools for their children have done so in full appreciation of the religious instruction that comes along with it.

“When people apply for school, they know what that school is about,” Smith said. “If you want religion, you go to a Catholic, Lutheran or Baptist school. If you don’t, you go to a public school.”

Ahmuty argues that sectarian schools have been “marketing to their own members” who qualify for vouchers, reducing the likelihood that those families would seek to exercise the opt-out provision.

Ahmuty also says, however, that it’s not clear how well informed choice families are about their opt-out rights, and what to do should they be violated.

There have been complaints in the past of parochial schools pressuring families with children enrolled to increase their own church attendance, Ahmuty told NCR. So far, no such case has surfaced among choice participants.

It’s also true, however, that it would only take one set of parents aggressively pursuing an exemption under the opt-out provision, and one school to resist that claim, to set the stage for litigation that would raise fundamental issues of church/state separation.

Some Catholic observers believe the opt-out provision is symptomatic of a larger problem, which is that Catholic schools can’t have it both ways: They can’t claim to be pervasively religious and at the same time take public money.

“In our documents, the bishops of the United States have always claimed that religion pervades every aspect of our schools,” Auxiliary Bishop Thomas J. Curry of the Los Angeles archdiocese told NCR. Curry’s academic background is in church/state relations, and he has written on the implications of voucher plans for religious schools.

“We can’t expect public funding to support a pervasively religious activity. Therefore, the bulk of what we do in our schools will be entirely secular, with perhaps some religious component before or after the school day.”

“I’m not saying I’m against vouchers,” Curry said, “but I am for being clear about what they mean.” He added that when he has voiced these concerns at bishops meetings, he has been surprised at the response -- bishops from across the usual ideological divides, he said, have approached him to say they share his views.

For educational theorists, the ultimate question about vouchers remains: Do they work? The lack of stringent oversight in the Milwaukee program, some critics say, makes getting an answer to that question difficult.

The choice legislation calls for a small degree of oversight by the Department of Public Instruction, and no curriculum requirements. Indeed, for choice backers that was part of the point: to let parents be the direct arbiters of quality, rather than saddling private schools with the sort of mandates that were blamed for stifling innovation in public schools.

The law implementing choice did require that, for schools to continue participating from one year to the next, they would have to meet one of four standards: Have at least 70 percent of choice students advance one grade level; maintain an average attendance rate of at least 90 percent for choice students; show that at least 80 percent of choice students demonstrate “significant academic progress” through whatever means the school chooses; or show that at least 70 percent of families of pupils in the program meet the school’s own parental involvement criteria.

Practically speaking, the criteria are so broadly drawn that “everyone gets back in” to the program, according to Brad Adams, who oversaw the choice program for the state Department of Public Instruction until this past summer. “These are private schools, and there’s virtually no oversight.”

The relative lack of oversight means that no public agency is responsible for making sure that vouchers work. It is a reality that scares some opponents, who argue that the state ought to exert at least as much energy regulating the quality of the nation’s schools as it does its meat and airplanes.

Yet for voucher supporters, it is precisely the caveat emptor approach -- letting parents, not the government, make the decisions -- that’s appealing.

Sr. Monica Fumo, principal of the all-girls St. Joan Antida High School in Milwaukee, said that under vouchers, “Our concern was ‘Gee, is somebody going to be in our face and down our throat every week here?’ ” So far, she said, that fear hasn’t been realized.

As for religious identity, Fumo reports it has been a non-issue. “We truly don’t force any Catholicism down anyone’s throat,” she said. With a student body that is about 3 percent Muslim, the school arranged for a local imam to lead a prayer service on one occasion. “We can all learn from someone else,” Fumo reasons. “God is God. We all have different ways of looking at the specifics.”

In the end, though, it is a different set of specifics -- of the legal and political sort, not theological -- that leave the fate of the voucher program still an open question. If a conflict between civil rights laws and the religious freedom of schools ends up in court, for example, it could be another decade or so before the ultimate shape of the program emerges.

If that happens, it will be a long time before the results of the Milwaukee experiment are clear.

National Catholic Reporter, March 26, 1999

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