Warner Jackson v. John T. Benson

Annotate this Case

Download PDF

SUPREME COURT OF WISCONSIN Case No.: 97-0270 Complete Title of Case: Warner Jackson, Jennifer Evans, Wendell Harris, The Reverend Andrew Kennedy, Rabbi Isaac Serotta, Ceil Ann Libber, Father Thomas J. Mueller, Reverend John N. Gregg, Diane Brewer, Colleen Beaman, Mary Morris, Penny Morse, Kathleen Jones and Philip Jones, Plaintiffs-Respondents, v. John T. Benson, Superintendent of Public Instruction, Department of Public Instruction and James E. Doyle, Defendants-Appellants-Petitioners, Marquelle Miller, Cynthia Miller, Angela Gray, Zachery Gray, Shon Richardson, George Richardson, Latrisha Henry, Faye Henry, Reigne Barrett, Valerie Barrett, Candice Williams, Senton Williams, Clintrai Giles, Sharon Giles, Intervenors-Defendants-Appellants, Parents For School Choice, Pilar Gonzalez, Dinah Cooley, Julie Vogel, Kate Helsper, Blong Yang, Gail Crockett, Yolanda Lassiter and Jeanine Knox, Intervenors-Defendants-AppellantsPetitioners. __________________________________ Milwaukee Teachers' Education Association, by its President, M. Charles Howard, Michael Lengyel, Donald Lucier, Tracy Adams, Milwaukee Public Schools Administrators and Supervisors Council, Inc., by its Executive Director, Carl A. Gobel, People for the American Way, by its Executive Vice President and Legal Director, Elliott M. Minceberg, John Drew, Susan Endress, Richard Riley, Jeanette Robertson, Vincent Knox, Bertha Zamudio, James Johnson, Robert Ullman and Sally F. Mills, Plaintiffs-Respondents, v. John T. Benson, Superintendent of Public Instruction, Department of Public Instruction and James E. Doyle, Defendants-Appellants-Petitioners, Marquelle Miller, Cynthia Miller, Angela Gray, Zachery Gray, Shon Richardson, George Richardson, Latrisha Henry, Faye Henry, Reigne Barrett, Valerie Barrett, Candice Williams, Senton Williams, Clintrai Giles, Sharon Giles, Intervenors-Defendants-Appellants, Parents For School Choice, Pilar Gonzalez, Dinah Cooley, Julie Vogel, Kate Helsper, Blong Yang, Gail Crockett, Yolanda Lassiter and Jeanine Knox, Intervenors-Defendants-AppellantsPetitioners. __________________________________ National Association for the Advancement of Colored People, Felmers O. Chaney, Lois Parker, on behalf of herself and her minor child, Rashaan Hobbs, Derrick D. Scott, on behalf of himself and his minor children, Deresia C.A. Scott and Desmond L.J. Scott, Constance J. Cherry, on behalf of herself and her minor children, Monique J. Branch, Monica S. Branch, and William A. Branch, Plaintiffs-Respondents, v. John T. Benson, Superintendent of Public Instruction of Wisconsin, in his official capacity, Defendant-Appellant. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 213 Wis. 2d 1, 570 N.W.2d 407 (Ct. App. 1997-PUBLISHED) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: June 10, 1998 March 4, 1998 Circuit Dane Paul B. Higginbotham JUSTICES: Concurred: Dissented: Bablitch, J., dissents (opinion filed) Abrahamson, C.J., joins Not Participating: Bradley, J., did not participate ATTORNEYS: For the defendants-appellants-petitioners, John T. Benson, et al., there were briefs by Edward S. Marion and Murphy & Desmond, S.C., Madison and Kenneth W. Starr, Jay P. Lefkowitz, Theodore W. Ullyot and Kirkland & Ellis, Washington, D.C., and oral argument by Jay P. Lefkowitz. For the intervenors-defendants-appellantspetitioners, parents for school choice, et al., there were briefs by Steve P. Hurley and Hurley, Burish & Milliken, S.C., Madison; William H. Mellor, III, Clint Bolick, Nicole S. Garnett and Institute for Justice, Washington, D,C, and Michael D. Dean, Waukesha and oral argument by Clint Bolick. For the intervenors-defendants-appellants, Marquelle Millter, et al., there were briefs by Kevin Potter and Brennan Steil, Madison and Richard P. Hutchison and Landmark Legal Foundation, Kansas City, MO and oral argument by Richard P. Hutchison. For the plaintiffs-respondents, Warner Jackson, et al., there was a brief by Jeffrey J. Kassel, Melanie E. Cohen and LaFollette & Sinykin, Madison; Peter M. Koneazny and American Civil Liberties Union of Wisconsin Foundation, Inc.,, Milwaukee; Steven R. Shapiro and American Civil Liberties Union Foundation, New York, NY and Steven K. Green and Americans United for Separation of Church & State, Washington, D.C., and oral argument by Jeffrey J. Kassel. For the plaintiffs-respondents, there was a brief by Robert H. Chanin, John M. West and Bredhoff & Kaiser, P.L.L.C., Washington, D.C.; Richard Perry, Richard Saks and Perry, Lerner & Quindel, Milwaukee; Bruce Meredith, Chris Galinat and Wisconsin Education Association, Madison; Elliot M. Mincberg, Judith Schaeffer, Washington, D.C. and Timothy Hawks and Schneidman, Myers, Dowling & Blumenfield, Milwaukee and oral argument by Robert H. Chanin. For the plaintiffs-respondents, NAACP, et al., there was a brief by William H. Lynch and Law Offices of William H. Lynch, Milwaukee and James H. Hall, Jr., and Hall, Patterson & Charne, Milwaukee and oral argument by James H. Hall, Jr. Amicus curiae was filed by K. Scott Wagner and Hale & Lein, S.C., Milwaukee and James C. Geoly, Kevin R. Gustafson and Burke, Warren, MacKay & Serritella, P.C., Chicago, IL for the Center for Education Reform, American Legislative Exchange, CEO America, CEO Central Florida, CEO Connecticut, Putting Children First, James Madison Institute for Public Policy Studies, Jewish Policy Center, I Have a Dream Foundation (Washington, D.C. Chapter), Institute for Public Affairs, Liberty Counsel, Maine School Choice Coalition, Pennsylvania Manufacturers Association, Reach Alliance, Arkansas Policy Foundation, North Carolina Education Reform Foundation, Texas Justice Foundation, Minnesota Business Partnership, Minnesotans for School Choice, Toussaint Institute, South Carolina Policy Counsel, and United New Yorkers for Choice in Education. Amicus curiae was filed by Ralph I. Thomas, Madison; Steven T. McFarland, Kimberlee W. Colby and Christian Legal Society, Annandale, VA and of counsel, Thomas C. Berg and Cumberland Law School, Birmingham, AL for The Christian Legal Society, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Lutheran Church-Missouri Synod and the National Association of Evangelicals. Amicus curiae was filed by David R. Riemer, Milwaukee for Howard L. Fuller, John O. Norquist, Steven M. Foti, Alberta Darling, Margaret A. Farrow, Joseph Leean, John S. Gardner, Warren D. Braun, Bruce R. Thompson, Jeanette Mitchell and David Lucey. Amicus curiae was filed by Daniel Kelly and McLario, Helm & Bertling, S.C., Menomonee Falls for the Family Research Institute, Christian Defense Fund, Center for Public Justice, Family Research Council, Toward Tradition, Liberty Counsel and Focus on the Family. Amicus curiae was filed by Bradden C. Backer and Godfrey & Kahn, S.C., Milwaukee and Robert L. Gordon and Weiss, Berzowski, Brady & Donahue, Milwaukee for The Milwaukee Jewish Council for Community Relations and The Wisconsin Jewish Conference. Amicus curiae was filed by Marc D. Stern, Lois C. Waldmani and American Jewish Congress, New York, NY for the American Jewish Congress. No. 97-0270 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 97-0270 STATE OF WISCONSIN : Warner Jackson, Jennifer Evans, Wendell Harris, The Reverend Andrew Kennedy, Rabbi Isaac Serotta, Ceil Ann Libber, Father Thomas J. Mueller, Reverend John N. Gregg, Diane Brewer, Colleen Beaman, Mary Morris, Penny Morse, Kathleen Jones and Philip Jones, Plaintiffs-Respondents, v. John T. Benson, Superintendent of Public Instruction, Department of Public Instruction and James E. Doyle, Defendants-AppellantsPetitioners, Marquelle Miller, Cynthia Miller, Angela Gray, Zachery Gray, Shon Richardson, George Richardson, Latrisha Henry, Faye Henry, Reigne Barrett, Valerie Barrett, Candice Williams, Senton Williams, Clintrai Giles, Sharon Giles, Intervenors-DefendantsAppellants, Parents For School Choice, Pilar Gonzalez, Dinah Cooley, Julie Vogel, Kate Helsper, Blong Yang, Gail Crockett, Yolanda Lassiter and Jeanine Knox, Intervenors-DefendantsAppellants-Petitioners. __________________________________ Milwaukee Teachers' Education Association, by its President, M. Charles 1 IN SUPREME COURT FILED JUN 10, 1998 Marilyn L. Graves Clerk of Supreme Court Madison, WI No. Howard, Michael Lengyel, Donald Lucier, Tracy Adams, Milwaukee Public Schools Administrators and Supervisors Council, Inc., by its Executive Director, Carl A. Gobel, People for the American Way, by its Executive Vice President and Legal Director, Elliott M. Mincberg, John Drew, Susan Endress, Richard Riley, Jeanette Robertson, Vincent Knox, Bertha Zamudio, James Johnson, Robert Ullman and Sally F. Mills, Plaintiffs-Respondents, v. John T. Benson, Superintendent of Public Instruction, Department of Public Instruction and James E. Doyle, Defendants-AppellantsPetitioners, Marquelle Miller, Cynthia Miller, Angela Gray, Zachery Gray, Shon Richardson, George Richardson, Latrisha Henry, Faye Henry, Reigne Barrett, Valerie Barrett, Candice Williams, Senton Williams, Clintrai Giles, Sharon Giles, Intervenors-DefendantsAppellants, Parents For School Choice, Pilar Gonzalez, Dinah Cooley, Julie Vogel, Kate Helsper, Blong Yang, Gail Crockett, Yolanda Lassiter and Jeanine Knox, Intervenors-DefendantsAppellants-Petitioners. __________________________________ National Association for the Advancement of Colored People, Felmers O. Chaney, Lois Parker, on behalf of herself and her minor child, Rashaan Hobbs, Derrick D. Scott, on behalf of himself and his minor children, Deresia C.A. Scott and Desmond L.J. Scott, Constance J. Cherry, on behalf of herself and her minor children, Monique J. Branch, Monica S. Branch, and 2 97-0270 No. 97-0270 William A. Branch, Plaintiffs-Respondents, v. John T. Benson, Superintendent of Public Instruction of Wisconsin, in his official capacity, Defendant-Appellant. REVIEW of a decision of the Court of Appeals. Reversed and cause remanded with directions. ¶1 DONALD W. STEINMETZ, J. This case raises a number of issues for review: (1) Does the amended Milwaukee Parental Choice Program (amended MPCP) violate the Establishment Clause of the First Amendment to the United States Constitution? Neither the court of this appeals nor the circuit court reached issue. We conclude that it does not. (2) Does the amended MPCP violate the religious establishment provisions of Wisconsin Constitution art. I, § 18? In a divided opinion, the court of appeals held that it does. We conclude that it does not. (3) Is the amended MPCP a private or local bill enacted in violation of the procedural requirements mandated by Wis. Const. art. IV, § 18? The court of appeals question, and the circuit court held it is. did not reach this We conclude that it is not. (4) Does the amended MPCP violate the uniformity provision of Wis. Const. art. X, § 3? The court of appeals did not reach this issue, and the circuit court concluded that the amended 3 No. MPCP does not violate the uniformity clause. 97-0270 We also conclude that it does not. (5) Does the amended MPCP violate Wisconsin's public purpose doctrine, which requires that public funds be spent only for public purposes? The court of appeals did not reach this issue, and the circuit court concluded that the amended MPCP does violate the public purpose doctrine. We conclude that it does not. (6) Should children who were eligible for the amended MPCP when this court's injunction issued on August 25, 1995, and who subsequently enrolled in private schools, be eligible for the program if the injunction addressed this issue. ¶2 is lifted? Neither court below We conclude that they should. This case is before the court on petition for review of a published decision of the court of appeals, Jackson v. Benson, 213 Wis. 2d 1, 570 N.W.2d 407 (Ct. App. 1997). The court of appeals, in a 2-1 decision, affirmed an order of the Circuit Court granting the for Dane County, Respondents' motion Paul for B. Higginbotham, summary Judge, judgment. The majority of the court of appeals concluded that the Milwaukee Parental Choice Program, Wis. Stat. § 119.23, as amended by 1995 Wis. Act 27, §§ 4002-4009 (amended MPCP), was invalid under Article I, § 18 of the Wisconsin Constitution because it directs payments of money from the state treasury for the benefit of religious seminaries. declined to decide The whether majority the of the amended court MPCP of appeals violates the Establishment Clause of the First Amendment or other provisions 4 No. of the Wisconsin Constitution. concluded federal that or decision the state of the amended In dissent, Judge Roggensack MPCP did of not The constitution. court 97-0270 State appeals. We violate either the appealed from the granted the State's petition for review and now reverse the decision of the court of appeals. We also conclude that the amended MPCP does not violate the Establishment Clause or the Wisconsin Constitution. ¶3 We are constitutionality provided in legislature Wis. once of the Stat. enacted the again asked Milwaukee § 119.23 original to Parental review Choice the Program (1995-96).1 The Milwaukee Parental Wisconsin Choice See 1989 Wis. Act 336. Program (original MPCP) in 1989. As amended in 1993, the original MPCP permitted up to 1.5 percent of the student membership of the Milwaukee Public Schools (MPS) to attend at no cost to the student any private nonsectarian school located in the City of Milwaukee, subject to certain eligibility requirements. ¶4 Under the original MPCP, the legislature limited the students eligible for participation in the original program. To be eligible for the original MPCP, a student (1) had to be a student in kindergarten through twelfth grade; (2) had to be from a family whose income did not exceed 1.75 times the federal poverty level; and (3) had to be either enrolled in a public school in Milwaukee, attending 1 a private school under this Unless otherwise stated, all references to Wis. Stats. are to the 1995-96 version of the statutes. 5 No. 97-0270 program, or not enrolled in school during the previous year. See Wis. Stat. § 119.23(2)(a)(1)-(2)(1993-94). ¶5 and The legislature also placed a variety of qualification reporting requirements on private participate in the original MPCP. schools choosing to To be eligible to participate in the original MPCP, a private school had to comply with the anti-discrimination provisions imposed by 42 U.S.C. § 2000d2 and all health and safety laws or codes that apply to Wisconsin public schools. id. See at § 119.23(2)(a)(4)-(5). The school additionally had to meet on an annual basis defined performance criteria and had to submit to the State certain financial and performance audits. ¶6 See id. at § 119.23(7), (9). Under the original MPCP, the State Superintendent of Public Instruction was required to perform a number of supervisory and reporting tasks. The legislature required the State an Superintendent student achievement, to submit attendance, annual report discipline, and regarding parental involvement for students in the program compared to students enrolled in MPS in general. original monitor MPCP the further See id. at § 119.23(5)(d). required performance of the State students Superintendent participating in The to the program, and it empowered him or her to conduct one or more 2 42 U.S.C. § 2000d provides: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 6 No. financial and performance audits of the program. 97-0270 See id. at § 119.23(7)(b), (9)(a). ¶7 funds Under the directly to original MPCP, participating the State private provided schools. public For each student attending a private school under the program, the State paid to each participating private school an amount equal to the state aid per student to which MPS would have been entitled under state aid distribution formulas. In the 1994-95 school year, this $2,500 per participating student. See id. at § 119.23(4). amount was approximately The amount of state aid MPS received each year was reduced by the amount the State paid to See id. private schools participating in the original program. at § 119.23(5)(a). ¶8 The original MPCP withstood a number of state constitutional challenges in Davis v. Grover, 166 Wis. 2d 501, 480 N.W.2d 460 (1992). In Davis, this court first held that the original program, when enacted, was not a private or local bill and therefore was not subject to the prohibitions of Wis. Const. art. IV, § 18. See id. at 537. The court then held that the program did not violate the uniformity clause in Wis. Const. art. X, § 3 because the private schools did not constitute "district schools" simply by participating in the program. id. at 540. See The court finally held that the program, although it applied only to MPS, served a sufficient public purpose and therefore did not violate the public purpose doctrine. at 546. 7 See id. No. ¶9 During the 1994-95 school year, 97-0270 approximately 800 students attended approximately 12 nonsectarian private schools under the original program. number of 1,600 and participating the number For the 1995-96 school year, the students of increased participating to approximately nonsectarian private schools increased to 17. ¶10 In 1995, as part of the biennial budget bill, the legislature amended in a number of ways the original MPCP. 1995 Wis. Act 27, §§ 4002-4009. See First, the legislature removed from Wis. Stat. § 119.23(2)(a) the limitation that participating See 1995 Wis. Act 27, § private schools be "nonsectarian." 4002. Second, the legislature increased to 15 percent in the 1996-97 school year the total percentage allowed to participate in the program. of MPS membership See id. at § 4003. Third, the legislature deleted the requirement that the State Superintendent conduct annual performance evaluations and report to the legislature, and it eliminated the Superintendent's authority to conduct financial or performance evaluation audits of the program. ¶11 that the directly, See id. at §§ 4007m and 4008m. Fourth, the legislature amended the original MPCP so State, is rather required to than pay student's parent or guardian. paying the aid participating to each schools participating Under the amended MPCP, the State shall "send the check to the private school," and the parent or guardian shall "restrictively endorse the check for the use of the private school." Id. at § 4006m. Fifth, the amended MPCP places an additional limitation on the amount the State will pay 8 No. to each parent or guardian. 97-0270 Under the amended MPCP, the State will pay the lesser of the MPS per student state aid under Wis. Stat. § 121.08 service or cost the per private pupil that school's is "operating related and debt educational See id. programming" as determined by the State. to The amended MPCP does not restrict the uses to which the private schools can put the state aid. Sixth, the legislature repealed the limitation that no more than 65 percent of a private school's enrollment consist of program participants. Finally, the legislature added an See id. at § 4003. "opt-out" provision prohibiting a private school from requiring "a student attending the private school under this section to participate in any religious activity if the pupil's parent or guardian submits to the teacher or the private school's principal a written request that the pupil be exempt from such activities." ¶12 Id. at § 4008e.3 The Respondents, Warner Jackson, et al. and Milwaukee Teachers Education Association (MTEA), et al. filed two original actions in August 1995. Together the lawsuits challenged the amended Establishment MPCP under the Clause of the First Amendment; Wis. Const. art. I, § 18; art. X, § 3; art. IV, § 18; and the Wisconsin public purpose doctrine. On August 15, 1996, the National Association for the Advancement of Colored People (NAACP) filed a separate lawsuit, alleging the same claims as 3 The expansion of the program was set to commence in the 1995-96 school year. By the time of the injunction, more than 4,000 children previously enrolled in Milwaukee Public Schools (MPS) had applied and over 3,400 had been admitted to private schools under the amended choice program. 9 No. 97-0270 the first two lawsuits and adding a claim that, on its face, the amended MPCP violated the Equal Protection Clause Fourteenth Amendment and Wis. Const. art. I, § 1. then filed a motion to consolidate the lawsuits. of the The NAACP The circuit court consolidated the cases, but bifurcated the proceedings so that the equal protection claims would be heard only if the amended MPCP was upheld. ¶13 The State filed, under Wis. Stat. § (Rule) 809.70, a petition for leave to commence an original action, seeking from this court a declaration constitutional. that the amended MPCP was This court accepted original jurisdiction and entered a preliminary injunction staying the implementation of the amended program, specifying that the pre-1995 provisions of the original program were unaffected. Following oral argument, this court split three-to-three on the constitutional issues, dismissed the petition, and effectively remanded the case to the circuit court Thompson v. for further Jackson, 199 proceedings. Wis. 2d State See 714, 720, 546 ex N.W.2d rel. 140 (1996)(per curiam). ¶14 the Following remand, the circuit court partially lifted preliminary implement all injunction, of the 1995 thereby allowing amendments the except State the amendment allowing participation by sectarian private schools. 1997, the summary judgment, circuit judgment, and court denied invalidated granted the the the Plaintiffs' State's amendments motion to the to In January motions for for summary MCPC. The circuit court held that the amended MPCP violates the religious 10 No. 97-0270 benefits and compelled support clauses of Wis. Const. art. I, § 18, the public or local bill prohibitions of Wis. Const. art. IV, § 18, and the public purpose doctrine as the program applied to sectarian schools. The circuit court also found that the amended program did not violate the uniformity clause in Wis. Const. art. X, § 3 or the public purpose doctrine as it applied to the nonsectarian private schools. Because the circuit court invalidated the amended MPCP on state constitutional grounds, the court did not address the question violates the Establishment Clause. circuit court's order, and whether the program The State appealed from the the court of appeals, with Judge Roggensack dissenting, affirmed. ¶15 A majority of the court of appeals held that the amended MPCP violates the prohibition against state expenditures for the benefit of religious societies or seminaries contained in Wis. Const. art. I, § 18. The court of appeals, therefore, struck the amended MPCP in its entirety and found it unnecessary to reach the other state and the federal constitutional issues. The State appealed to this court, and we granted the State's petition for review. ¶16 amended In the circuit court, the Respondents challenged the MPCP under the Establishment Clause of the First Amendment; Wis. Const. art. I, § 18; art. X, § 3; art. IV, § 18; and the Wisconsin public purpose doctrine. We address each issue in turn. ¶17 Before we begin our analysis of the amended MPCP, we pause to clarify the issues not before this court. 11 In their No. 97-0270 briefs and at oral argument, the parties presented information and testimony expressing positions pro and con bearing on the merits of this type of school choice program. This debate largely concerns the wisdom of the amended MPCP, its efficiency from an educational point of view, and considerations which motivated its adoption. the political We do not stop to summarize these arguments, nor to burden this opinion with an analysis of them, for they involve considerations not germane to the narrow constitutional issues presented in this case. absence of a constitutional violation, the In the desirability and efficacy of school choice are matters to be resolved through the political process. This program may be wise or unwise, provident or improvident from an educational or public policy viewpoint. Our individual preferences, however, are not the constitutional standard. Standard of Review ¶18 to the Procedurally, this case is before the court pursuant circuit court's Plaintiffs-Respondents. grant We of summary independently judgment review a to the grant of summary judgment, see Burkes v. Klauser, 185 Wis. 2d 308, 327, 517 N.W.2d 503 (1994), applying the same methodology as that used by the circuit court. See, e.g., Kafka v. Pope, 194 Wis. 2d 234, 240, 533 N.W.2d 491 (1995); Voss v. City of Middleton, 162 Wis. 2d 737, 748, 470 N.W.2d 625 (1991). A motion for summary judgment must be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Wis. Stat. § 802.08(2). 12 The underlying No. 97-0270 issue in this case is the constitutionality of the amended MPCP. The constitutionality of a statute is a question of law which we review independently, without giving deference to the decisions of the circuit court and the court of appeals. See State v. Post, 197 Wis. 2d 279, 301, 541 N.W.2d 115 (1995); State v. Migliorino, 150 Wis. 2d 513, 524, 442 N.W.2d 36 (1989). ¶19 enjoys Like any other duly enacted statute, the amended MPCP a strong legislative acts presumption are of presumed constitutionality. constitutional, and All every See State v. presumption must be indulged to sustain the law. Randall, 192 Wis. 2d 800, 824, 532 N.W.2d 94 (1995); State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 47, 205 N.W.2d 784 (1973). Accordingly, "[it] is not enough that respondent[s] establish doubt as to the act's constitutionality nor is it sufficient unconstitutionality of that the respondent[s] act as establish a the probability. Unconstitutionality of the act must be demonstrated beyond a reasonable doubt." La Plante, 58 Wis. 2d at 46; see also State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d 654 (1989); Quinn v. Town of Dodgeville, 122 Wis. 2d 570, 577, 364 N.W.2d 149 (1985). I. Establishment Clause ¶20 The first issue we address is whether the amended MPCP violates the Establishment Clause of the First Amendment to the United States Constitution. Neither the circuit court nor the court of appeals reached this issue. Upon review we conclude that the amended MPCP does not violate the Establishment Clause 13 No. 97-0270 because it has a secular purpose, it will not have the primary effect of advancing religion, and it will not lead to excessive entanglement between the State and participating sectarian private schools.4 ¶21 The First Amendment to the United States Constitution provides in part that "Congress shall make no law respecting an establishment thereof." of religion, or prohibiting the free exercise This mandate applies equally to state legislatures by virtue of the Due Process Clause of the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940); Holy Trinity Community Sch. v. Kahl, 82 Wis. 2d 139, 150, 262 N.W.2d 4 Citing the United States Supreme Court's decision in United States v. Salerno, 481 U.S. 739 (1987), the Petitioners argue that since the Respondents challenge the amended Milwaukee Parental Choice Program (MPCP) as facially unconstitutional, as opposed to unconstitutional as applied to a set of particular facts, the Respondents' federal claims must fail unless they can show that under all circumstances the amended MPCP is unconstitutional. In Salerno, the Court noted that to succeed with a facial challenge, a party must "establish that no set of circumstances exists under which the [statute] would be valid." Id. at 745. The Court has not directly held that the Salerno standard applies to facial challenges raised under the Establishment Clause. Nor has the Court consistently applied the Salerno standard in other contexts. See Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1175-76 n.1 (1996)(Mem.)(citing cases in which Court did not apply Salerno language). In Bowen v. Kendrick, 487 U.S. 589 (1988), decided just one year after Salerno, the Court considered a facial challenge to the Adolescent Family Life Act under the Establishment Clause. Although it upheld the federal program, the Bowen Court did not cite to or apply the "no set of circumstances" language from Salerno. See id. at 627 n.1 (Blackmun, J., dissenting). We decline to apply the Salerno standard here. We leave to the Court the decision whether to apply the Salerno standard to facial challenges raised under the Establishment Clause. 14 No. 210 (1978). state The governments purpose or Establishment Clause, from laws passing effect of advancing or therefore, which have inhibiting 97-0270 prohibits either the religion. See Agostini v. Felton, __ U.S. __, 117 S. Ct. 1997, 2010 (1997). ¶22 When assessing any First Amendment challenge to a state statute, we are bound by the results and interpretations given that amendment Supreme Court. by the decisions of the United States See State ex rel. Holt v. Thompson, 66 Wis. 2d 659, 663, 225 N.W.2d 678 (1975). "Ours [is] not to reason why; ours [is] but to review and apply." I), 55 Wis. 2d State ex rel. Warren v. Nusbaum, (Nusbaum 316, 322, 198 N.W.2d 650 (1972). Our limited role is not aided by the Supreme Court's candid admission that in applying the Establishment Clause, it has "sacrifice[d] clarity and predictability for flexibility." Committee for Pub. Educ. and Religious Liberty v. Regan, 444 U.S. 646, 662 (1980). ¶23 The Supreme Court has repeatedly recognized that the Establishment Clause raises difficult issues of interpretation, and cases arising under it "have presented some of the most perplexing questions to come before [the] Court." Committee for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973); see, e.g., Mueller v. Allen, 463 U.S. 388, 392 (1983); Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). We are therefore cognizant of the Court's warnings that: There are always risks in treating criteria discussed by the Court from time to time as 'tests' in any limiting sense of that term. Constitutional adjudication does not lend itself to the absolutes of 15 No. 97-0270 the physical sciences or mathematics . . . [C]andor compels the acknowledgment that we can only dimly perceive the boundaries of permissible government activity in this sensitive area of constitutional adjudication. Tilton v. Richardson, 403 U.S. 672, 678 (1971); see also Mueller, 463 U.S. at 393; Lemon, 403 U.S. at 612. ¶24 which In an attempt to focus on the three main evils from the Establishment protection: Clause sponsorship, was financial intended afford and support, to active involvement of the sovereign in religious activity, see Walz v. Tax Commission, 397 U.S. 664, 668 (1970), the Court has promulgated a three-pronged test to determine whether a statute complies with the Establishment Clause. 612. Under Establishment this test, Clause if a (1) See Lemon, 403 U.S. at statute does it a has not secular violate the legislative purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not entanglement between government and religion. 16 create excessive See id. at 612- No. 13. We must apply this three-part test to 97-0270 determine the constitutionality of Wis. Stat. § 119.23.5 a. First Prong - Secular Purpose ¶25 Under the first prong of the Lemon test, we examine whether the nature. the purpose of the state legislation is secular in Our analysis of the amended MPCP under this prong of Lemon test "reluctan[t] to is straightforward. attribute Courts unconstitutional have motives been to the states, particularly when a plausible secular purpose for the state's program may be discerned from the face of the statute." Mueller, 463 U.S. at 394-95. ¶26 As the court of appeals recognized, the secular purpose of the amended MPCP, as in many Establishment Clause cases, is virtually conceded. See Jackson, 213 Wis. 2d at 29. The purpose of the program is to provide low-income parents with an opportunity to have their children educated outside of the embattled Milwaukee Public School 5 system. The propriety of While the continued authority of the test established in Lemon v. Kurtzman, 403 U.S. 602 (1971), is uncertain, we have no choice but to apply it in this case. We recognize that five current United States Supreme Court Justices have questioned the continued use of the Lemon test. See Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993)(Scalia, J., concurring). Until a majority of the Supreme Court directly holds otherwise, however, we continue to apply the Lemon test. See Agostini v. Felton, __ U.S. __, 117 S. Ct. 1997, 2017 (1997)(stating that other courts should leave to the Supreme Court "the prerogative of overruling its own decisions."). Unlike the Supreme Court, we cannot command this "ghoul" to return to its tomb when we wish it to do so. See Lamb's Chapel, 508 U.S. at 398-99 (Scalia, J., concurring). 17 No. providing educational opportunities for children 97-0270 of poor families in the state goes without question: A State's decision to defray the cost of educational expenses incurred by parents regardless of the type of schools their children attend evidences a purpose that is both secular and understandable. An educated populace is essential to the political and economic health of any community, and a State's efforts to assist parents in meeting the rising cost of educational expenses plainly serves this secular purpose of ensuring that the State's citizenry is well-educated. Mueller, 463 U.S. at 395. purpose, however, does The propriety of such legislative not immunize further constitutional challenge. 74. If advances the amended religion or MPCP if either it the amended MPCP from See Nyquist, 413 U.S. at 773has fosters a primary excessive effect that entanglements between church and state, then the program is constitutionally infirm and must be struck down. See id. at 774. b. Second Prong - Primary Effect of Advancing Religion ¶27 Analysis of the amended program under the second prong of the Lemon test is more difficult. Lemon examines the legislative While the first prong of purpose of the challenged statute, the second prong focuses on its likely effect. A law violates the Establishment Clause if its principal or primary effect either advances or inhibits religion. See Lemon, 403 U.S. at 612; see also Agostini, 117 S. Ct. at 2010; Mueller, 463 U.S. at 396. ¶28 violated This does not mean that the Establishment Clause is every time money previously 18 in the possession of a No. state is conveyed to a religious institution. 97-0270 See Witters v. Washington Dep't of Services for the Blind, 474 U.S. 481, 486 (1986). "The simplistic argument that every form of financial aid to church-sponsored activity violates the Religion Clauses was rejected long ago . . . ." Tilton, 403 U.S. at 679; see Nusbaum I, 55 Wis. 2d at 321 n.4. The constitutional standard is the separation of church and state. 343 U.S. 306, 314 (1952). "The problem, like many problems in constitutional law, is one of degree." ¶29 Lemon Id. We begin our analysis under the second prong of the test developed See Zorach v. Clauson by over first the considering years and the applying cumulative to a wide criteria range of educational assistance programs challenged as violative of the Establishment Clause. See Tilton, 403 U.S. at 677-78. Although the lines with which the Court has sketched the broad contours of this inquiry are fine and not absolutely straight, the Court's decisions generally can be distilled to establish an 19 No. 97-0270 underlying theory based on neutrality6 and indirection:7 state programs assistance reference that are directly to wholly to religion advancing religion. neutral citizens do not in have in a offering class the educational defined primary without effect of The Court has explained: Given that a contrary rule would lead to such absurd results, we have consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment 6 The Supreme Court has historically looked to whether a program is neutral toward religion in defining its beneficiaries. See, e.g., Bowen, 487 U.S. 589 (rejecting challenge to federal program neutrally providing public funds to sectarian or purely secular institutions for services relating to adolescent sexuality and pregnancy to institutions); Roemer v. Maryland Bd. of Public Works, 426 U.S. 736 (1976)(upholding Maryland statute that provided annual subsidies directly to qualifying colleges and universities in the state, including religiously affiliated institutions; Hunt v. McNair, 413 U.S. 734 (1973)(rejecting challenge to South Carolina statute providing certain benefits to all institutions of higher education in South Carolina, whether or not having a religious affiliation); Tilton v. Richardson, 403 U.S. 672 (1971)(approving Federal Higher Educational Facilities Act, providing grants to "all colleges and universities regardless of any affiliation with or sponsorship by a religious body); Board of Education v. Allen, 392 U.S. 236 (1968)(upholding state provision of secular textbooks for both public and private schools); Everson v. Board of Education, 330 U.S. 1 (1947)(approving busing services equally available to both public and private school children). 7 The Court has also focused on whether public aid that flows to religious institutions does so only as a result of "genuinely independent and private choices of the aid recipients." Witters v. Washington Dep't of Services for Blind, 474 U.S. 481, 487 (1986); see, e.g., Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819, 842-43 (1995); Mueller v. Allen, 463 U.S. 388, 398 (1983); Allen, 392 U.S. at 243-44; Everson, 330 U.S. at 17-18. 20 No. 97-0270 Clause challenge just because sectarian institutions may also receive an attenuated financial benefit. Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8 (1993). ¶30 Clause The Court's general principle under the Establishment has, neutrality since and its decision indirection.8 in Everson, Writing for the been one of majority in Everson, Justice Black set out the view of the Establishment Clause that still guides the Court's thinking today. The Everson Court explained that "the clause against establishment of religion by law was intended to erect 'a wall of separation Everson, 330 U.S. at 16 (quoting between Church and State.'" Reynolds v. United States, 98 U.S. 145, 164 (1878)). tempered its statement, however, by cautioning The Court that in maintaining this wall of separation, courts must "be sure that [they] do not inadvertently prohibit [the government] 8 from The concept of neutrality has developed as a necessary result of the interplay between the Establishment and Free Exercise Clauses of the First Amendment, "both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would clash with the other." Walz v. Tax Commission, 397 U.S. 664, 668-69 (1970). The Court in Walz explained: The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference. Id. at 669. 21 No. 97-0270 extending its general State law benefits to all its citizens without regard to their religious belief." Id. at 16. Under this reasoning, the Court held that the Establishment Clause does not prohibit New Jersey from spending tax-raised funds to reimburse parents directly for the bus fares of parochial school pupils as a part of a general program under which the State pays the fares of pupils attending public and other schools. See id. at 17. ¶31 In Nyquist, the Court struck down on Establishment Clause grounds a New York program that, inter alia, provided tuition grants to parents of children attending private schools. Under the program, New York sought to assure that participating parents oriented would continue schools by to send relieving Nyquist, 413 U.S. at 783. their their children financial to religion- burdens. See Before striking the tuition grants, the Court distinguished on two grounds the New York statute from the New Jersey statute reviewed in Everson: (1) unlike the statute in Everson, the New York statute was non-neutral because it provided benefits solely to private schools and parents with children in private schools, see id. at 782 n.38; and (2) the New York statute provided financial assistance rather than bus rides, see id. at 781-82. The Court concluded that the fact that aid was distributed directly to parents rather than the schools, although a factor in its analysis, did not save the statute because "unmistakably to the effect provide of New desired nonpublic, sectarian institutions." 22 York's program was financial support for Id. at 783. No. ¶32 Court 97-0270 Significant to the case now before us, however, the in Nyquist educational specifically assistance reserved program that the was issue both whether neutral an and indirect would survive an Establishment Clause challenge: Because of the manner in which we have resolved the tuition grant issue, we need not decide whether the significantly religious character of the statute's beneficiaries might differentiate the present cases from a case involving some form of public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or publicnonpublic nature of the institution benefited. Id. at 782 n.38. In cases following its decision in Nyquist, the Court has piecemeal answered this question as it has arisen in varying fact situations. Witters, Rector 474 and U.S. 481; Visitors See, e.g., Mueller, 463 U.S. 388; Zobrest, of Univ. 509 of U.S. 1; Virginia, Rosenberger 515 U.S. v. 819; Agostini, 117 S. Ct. 1997.9 9 We reject the Respondents' argument that this case is controlled by Committee for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756 (1973). Although the tuition reimbursement program in Nyquist closely parallels the amended MPCP, there are significant distinctions. In Nyquist, each of the facets of the challenged program directed aid exclusively to private schools and their students. The MPCP, by contrast, provides a neutral benefit to qualifying parents of school-age children in Milwaukee Public Schools. Unlike the program in Nyquist, the only financially-qualified Milwaukee students excluded from participation in the amended MPCP are those in the fourth grade or higher who are already attending private schools. The amended MPCP, viewed in its surrounding context, merely adds religious schools to a range of pre-existing educational choices available to MPS children. This seminal fact takes the amended MPCP out of the Nyquist construct and places it within the framework of neutral education assistance programs. 23 No. ¶33 97-0270 In Mueller, the Court rejected an Establishment Clause challenge to a Minnesota statute allowing taxpayers to deduct certain educational expenses in computing their state income tax, even though a majority of those deductions went to parents whose children attended sectarian schools. U.S. at 401-02. traditionally "Two broad Court's] decision." factors, taxing aside authority, See Mueller, 463 from the States' informed [the Mueller Zobrest, 509 U.S. at 9. First, the Court noted that, unlike the statute in Nyquist, the Minnesota law "permits all parents whether their children attend public school or private to deduct their Mueller, 436 U.S. at 398. under Minnesota's tax children's educational expenses." Second, the Court emphasized that deduction scheme, public funds become available to sectarian schools "only as a result of numerous private choices of individual parents of school-age children," thus distinguishing Mueller from other cases involving "the direct transmission of assistance from the state to the schools themselves." Id. at 399. The Court concluded: The historic purposes of the clause simply do not encompass the sort of attenuated financial benefit, ultimately controlled by the private choices of individual parents, that eventually flows to parochial schools from the neutrally available tax benefit at issue in this case. Id. at 400. Mueller makes clear that "state programs that are wholly neutral in offering educational assistance to a class defined without reference to religion do not violate the second part of the [Lemon] test, because any aid to religion results from the private choices of individual beneficiaries." 24 Witters, No. 474 U.S. at 490-91 (Powell, J. 97-0270 concurring)(footnote and citations omitted).10 ¶34 The Court reaffirmed the dual importance of neutrality and indirect aid in Witters. See Witters, 474 U.S. 481. Witters, the Court unanimously held that the In Establishment Clause did not bar a state from issuing a vocational tuition grant to a blind person who intended to use the grant to attend a Christian college and become a pastor, missionary, or youth director.11 The Court focused first on the program's indirect aid, finding that because the aid was paid to the student rather than the institution "[a]ny aid provided under Washington's program that ultimately flows to religious institutions does so only as a result of genuinely independent and private choices of aid recipients." Id. at 487. 10 As to its discussion of the importance of Mueller, 463 U.S. 388, in Establishment Clause jurisprudence, Justice Powell's concurring opinion in Witters, 474 U.S. at 490-91, drew the support of five members of the Court. Chief Justice Burger and Justice Rehnquist joined Justice Powell's concurrence, while Justices White and O'Connor wrote separately, but agreed with Justice Powell's opinion with respect to the relevance of Mueller. See Witters, 474 U.S. at 490 (White, J. concurring); id. at 493 (O'Connor, J. concurring). 11 On its face, the Washington educational aid program upheld in Witters was in all significant aspects similar to the amended MPCP. The public aid was in the form of tuition grants and was made available to disadvantaged students generally without regard to the sectarian-nonsectarian, or publicnonpublic nature of the institution benefited, see Witters, 474 U.S. at 488; student eligibility for the aid was based on nonsectarian criteria, see id. at 482 n.2, and the aid was paid directly to the student who then could transmit it to the school of his or her choice, see id. at 488. 25 No. ¶35 97-0270 As in Mueller, the Witters Court then emphasized the neutrality of the program, finding that "Washington's program is 'made available nonsectarian, generally or without public-nonpublic regard nature to of the the sectarianinstitution benefited,'" and therefore "creates no financial incentive for students to undertake sectarian education." (quoting Nyquist, 413 U.S. at 782-83 n.38). factors,12 the Court held that Washington's Id. at 487-88 In light of these program even as applied to a student who sought state assistance so that he could become a pastor would not advance religion in a manner inconsistent with the Establishment Clause.13 See id. at 489. 12 The Court in Witters further distinguished the Washington program from the tuition grants in Nyquist by noting that in application no "significant portion of the aid expended under the Washington program as a whole will end up flowing to The Court's religious education." Witters, 474 U.S. at 488. consideration of the percentage of students who would likely transmit program aid to sectarian institutions is inconsistent with its prior decision in Mueller, where the Court specifically rejected any statistical analysis showing that in application parents of children in sectarian private schools would take the bulk of the benefits available under the program. See Mueller, 463 U.S. at 401. The Mueller Court explained: "We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law." Id. The Court recently reaffirmed the position it took in Mueller. See Agostini, 117 S. Ct. at 2013. 13 In Witters, the Court limited its analysis to the first two prongs of the Lemon test. The Court held that the Washington program had a secular purpose and that it did not have the primary effect of advancing religion. See Witters, 474 U.S. at 485-86, 488-89. The Court declined to address the entanglement issue and remanded the case for further analysis. See id. at 489 n.5, 490. 26 No. ¶36 97-0270 The Supreme Court applied the same logic in Zobrest, where it held that the Establishment Clause did not prohibit a school district from providing to a deaf student a sign-language interpreter under the Individuals with Disabilities Education Act (IDEA), even though the interpreter would be a mouthpiece for religious instruction. See Zobrest, 509 U.S. at 13-14. The Zobrest Court, basing its reasoning upon Mueller and Witters, again looked principles. to neutrality and indirection as its guiding Specifically focusing on the general availability of the statute, the Court found that the "service at issue in this case is part of a general government program that distributes benefits neutrally to any child . . . without regard to the . . . 'nature' of the school the child attends." Id. at 10. ¶37 direct The Zobrest Court then looked to whether the aid was or indirect, explaining that "[b]y according parents freedom to select a school of their choice, the statute ensures that a sectarian government-paid school only individual parents." interpreter as Id. result of will the be present private in a decision of Based on these two findings, the Court concluded: "When the government offers a neutral service on the premises of a sectarian school as part of a general program that 'is in no way skewed towards religion,' it follows under our prior decisions that provision of that service does not offend the Establishment Clause." U.S. at 488). 27 Id. (quoting Witters, 474 No. ¶38 In Rosenberger, Establishment Clause did the Supreme Court not prohibit held the 97-0270 that university the from funding a student organization, which otherwise would have been entitled to publication funds, merely because it published a newspaper with a Christian point of view. The Court clarified that the critical aspect of the analysis was whether the state conferred a benefit which neither inhibited religion. See Rosenberger, 515 U.S. at 839. nor promoted As long as the benefit was neutral with respect to religion, what the student did with that benefit, even if it was to spend all of it on religion-related expenditures, was irrelevant for purposes of analyzing whether the law or policy violated the Establishment Id. at 842-43. Clause. ¶39 Finally, in Agostini, the Supreme Court held that a federally funded instruction on a program neutral providing basis to supplemental, disadvantaged remedial children at sectarian schools is not invalid under the Establishment Clause when sufficient safeguards exist.14 2016. used See Agostini, 117 S. Ct. at The Court explained that while the general principles to evaluate Establishment 14 Clause cases have remained Unlike the amended MPCP, the education assistance program reviewed in Agostini was federally funded under Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 6301 et seq. See Agostini, 117 S. Ct. at 2003. The program, however, was designed and implemented by a local educational agency, the Board of Education of the City of New York. See id. at 2003-05. Although New York City's Title I program was federally funded, we find the Agostini Court's analysis of that program relevant to our review of the State funded amended MPCP. 28 No. 97-0270 unchanged, the Court's "understanding of the criteria used to assess" the inquiry has changed in recent years. Id. at 2010.15 The Court reiterated that the unchanged principle under the Establishment Clause remains neutrality, and that the Court will continue to ask whether the government acts with the purpose or effect of advancing or inhibiting religion. See id. Writing for the Court, Justice O'Connor set out three criteria the Court has in recent years used to evaluate whether an impermissible effect exists. The aid must "not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement." ¶40 Id. at 2016. After considering these three criteria, the Court held that the program did not have the primary effect of advancing religion. The Court first concluded that placing full-time employees on parochial school campuses under this program did not result in advancing religion through indoctrination. id. at 2014. See The Court then considered whether the criteria by which the program identified beneficiaries created a financial incentive to undertake synthesizing concluded "[t]his that the no incentive religious central such establishment incentive is not indoctrination. present, existed however, clause under where The Court, principle, the the program: aid is allocated on the basis of neutral, secular criteria that neither 15 In upholding New York City's Title Court in Agostini directly overruled its Felton, 473 U.S. 402 (1985), as well decision in School Dist. of Grand Rapids (1985). 29 I program, the Supreme decision in Aguilar v. as a portion of its v. Ball, 473 U.S. 373 No. favor nor religious basis." disfavor and Id. religion, secular and is made beneficiaries on available a 97-0270 to both nondiscriminatory The Court also concluded that the federal program did not result in an excessive entanglement between church and state. See id. at 2015-16. ¶41 has The Supreme Court, in cases culminating in Agostini, established the general principle that state educational assistance programs do not have the primary effect of advancing religion if those programs provide public aid to both sectarian and nonsectarian institutions (1) on the basis of neutral, secular criteria that neither favor nor disfavor religion; and (2) only as a result of numerous private individual parents of school-age children. precisely such a program. choices of the The amended MPCP is Applying to the amended MPCP the criteria the Court has developed from Everson to Agostini, we conclude that the program does not have the primary effect of advancing religion. ¶42 First, eligibility for benefits under the amended MPCP is determined by "neutral, secular criteria that neither favor nor disfavor religious basis." under public religion," and secular and aid "is beneficiaries made on Agostini, 117 S. Ct. at 2014. the amended schools (or MPCP if private certain income requirements. they reside schools in available a to both nondiscriminatory Pupils are eligible in Milwaukee, grades K-3) attend and meet Beneficiaries are then selected on a random basis from all those pupils who apply and meet these religious-neutral criteria. Participating private schools are 30 No. 97-0270 also selected on a religious-neutral basis and may be sectarian or nonsectarian. The participating private schools must select on a random basis the students attending their schools under the amended program, except that they may siblings already accepted in the school. give preference to In addition, under the new "opt-out" provision, the private schools cannot require the students participating in the program to participate in any religious activity provided at that school. ¶43 Under the amended MPCP, beneficiaries are eligible for an equal share of per pupil public aid regardless of the school they choose to attend. participate, the To those eligible pupils and parents who amended MPCP provides a religious-neutral benefit the opportunity "to choose the educational opportunities that they deem best for their children." 532. The amended MPCP, in conjunction Davis, 166 Wis. 2d at with existing state educational programs, gives participating parents the choice to send their children to a neighborhood public school, a different public school within the district, a specialized public school, 31 No. 97-0270 a private nonsectarian school, or a private sectarian school.16 As a result, the amended program is in no way "skewed towards religion." ¶44 Witters, 474 U.S. at 488. The amended MPCP therefore satisfies the principle of neutrality required by the Establishment Clause. As Justice Jackson explained in Everson: A policeman protects a Catholic, of course but not because he is a Catholic; it is because he . . . is a member of our society. The fireman protects the Church school but not because it is a Church school; it is because it is property, part of the assets of our society. Neither the fireman nor the policeman has to ask before he renders aid 'Is this man or building identified with the Catholic Church.' Everson, 330 U.S. at 25 (Jackson, J., dissenting). MPCP works in much the same way. A student The amended qualifies for benefits under the amended MPCP not because he or she is a Catholic, a Jew, a Moslem, or an atheist; it is because he or she is from a poor family and is a student in the embattled 16 Our inquiry into the constitutionality of the amended MPCP must encompass "the nature and consequences of the program viewed as a whole." Witters, 474 U.S. at 492 (Powell, J., concurring). According to the stipulated facts in this case, the State's system of per-pupil school financing, in which public funds follow each child, now encompasses a wide range of school choices mainly public, but some private or religious. Numerous programs have amended the number and type of educational options available to public school students. Qualifying public school students may choose from among the Milwaukee public district schools, magnet schools, charter schools, suburban public schools, trade schools, schools developed for students with exceptional needs, and now sectarian or nonsectarian private schools participating in the amended MPCP. In each case, the programs let state funds follow students to the districts and schools their parents have chosen. 32 No. Milwaukee Public Schools. 97-0270 To qualify under the amended MPCP, the student is never asked his or her religious affiliation or beliefs; nor is he or she asked whether the aid will be used at a sectarian or nonsectarian private school. Because it provides a neutral benefit to beneficiaries selected on religious-neutral criteria, the amended MPCP neither leads to "religious indoctrination," Agostini, 117 S. Ct. at 2014, nor "creates [a] financial incentive education." for students to undertake sectarian Witters, 474 U.S. at 488; Zobrest, 509 U.S. at 10. As Judge Roggensack concluded, "[t]he benefit neither promotes religion nor is hostile to it. Rather, it promotes the opportunity for increased learning by those currently having the greatest difficulty with educational achievement." Jackson, 213 Wis. 2d at 61. ¶45 Second, under the amended MPCP public aid flows to sectarian private schools only as a result of numerous private choices of the individual parents of school-age children. the original MPCP, the State participating private schools. was amended so that individual checks the made paid grants Under directly to As explained above, the program State payable will to now the provide parents attending a private school under the program. the of aid each by pupil Each check is sent to the parents' choice of schools and can be cashed only for the cost of the student's tuition. the amended schools, MPCP that therefore, ultimately does so "only 33 Any aid provided under flows as a to sectarian result of private genuinely No. independent and private choices of aid recipients." 97-0270 Witters, 474 U.S. at 487. ¶46 We recognize that under the amended MPCP the State sends the checks directly to the participating private school and the parents must restrictively endorse the checks to the private schools. Nevertheless, we do not view these precautionary provisions as amounting to some type of "sham" to funnel public assessment, ascertain funds the to sectarian importance the path of upon which private our schools. public funds our here inquiry In not to is travel under the amended program, but rather to determine who ultimately chooses As with the programs in Mueller and Witters, not one that path. cent flows from the State to a sectarian private school under the amended MPCP except as a result of intervening choices of individual parents. reasonable observer is inference that the likely State practice or belief." to itself draw is the necessary and As a result, "[n]o from [these endorsing a facts] an religious Witters, 474 U.S. at 493 (O'Connor, J., concurring); see also Zobrest, 509 U.S. at 9-10. ¶47 The amended MPCP, therefore, places on equal footing options of public and private school choice, and vests power in the hands of parents to choose where allocated for their children's benefit. 34 to direct the funds We are satisfied that No. 97-0270 the implementation of the provisions of the amended MPCP will not have the primary effect of advancing religion.17 c. Third Prong - Excessive Government Entanglement ¶48 The final question for us to determine under the Lemon test is whether the amended MPCP would result in an excessive governmental entanglement with religion.18 Stated another way, it "[a] is necessary discriminating, inevitably be to and determine whether continuing required to ensure state that comprehensive, surveillance these will restrictions [against the inculcation of religious tenets] are obeyed and the First Amendment otherwise respected." Lemon, 403 U.S. at 619. 17 The Respondents also argue that the amended MPCP has the primary effect of advancing religion because a substantial percent of the program's aid will flow to sectarian schools. They point out that of the 122 private schools eligible to participate in the amended program 89 are sectarian. We find this argument unpersuasive. The Supreme Court has warned against "focusing on the money that is undoubtedly expended by the government rather than on the nature of the benefit received by the recipient." Rosenberger, 515 U.S. at 843. "We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law." Mueller, 463 U.S. at 401. The percent of program funds eventually paid to sectarian private schools is irrelevant to our inquiry. 18 The United States Supreme Court has considered entanglement both in the course of assessing whether an aid program has an impermissible effect of advancing religion and as an independent factor under the Lemon test. See Agostini, 117 S. Ct. at 2015. Regardless of how the Court has characterized the analysis, whether a government aid program results in such entanglement has consistently been an aspect of its Establishment Clause analysis. See id. 35 No. ¶49 97-0270 Not all entanglements have the effect of advancing or inhibiting religion. The Court's prior holdings illustrate that total separation between church and state is not possible in an absolute sense. "Judicial caveats against entanglement must recognize that the line of separation, far from being a 'wall,' is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." U.S. at 614. Some relationship between the State and religious See id. (citing Zorach, 343 U.S. organizations is inevitable. at 312). Lemon, 403 "Entanglement must be 'excessive' before it runs afoul of the Establishment Clause." ¶50 The amended See Agostini, 117 S. Ct. at 2015. MPCP will not create entanglement between the State and religion. program, the authority State to need impose not, a and in fact "comprehensive, an excessive Under the amended is not given discriminating, the and continuing state surveillance" over the participating sectarian private schools. schools are Lemon, 403 U.S. at 619. subject requirements, as to well performance, as to health, and safety obligations. Participating private reporting, applicable and auditing nondiscrimination, Enforcement of these minimal standards will require the State Superintendent to monitor the quality of secular education participating in the plan. In the course of his at the sectarian schools But this oversight already exists. existing duties, the Superintendent currently monitors the quality of education at all sectarian private schools. 36 No. ¶51 97-0270 These oversight activities relating to conformity with existing law do not create excessive entanglement merely because they are part of the amended MPCP's requirements. Mueller, 463 U.S. at 403. See, e.g., As the Court held in Hernandez v. Commissioner, 490 U.S. 680, 696-97 (1989): [R]outine regulatory interaction which involves no inquiries into religious doctrine, no delegation of state power to a religious body, and no 'detailed monitoring and close administrative contact' between secular and religious bodies, does not of itself violate the nonentanglement command. (citations omitted); accord, Agostini, 117 S.Ct. at 2014-16; Board of Educ. of the Westside Community Sch. v. Mergens, 496 U.S. 226, 253 (1990); Hartmann v. Stone, 68 F.3d 973 (6th Cir. 1995). The program does not involve the State in any way with the schools' governance, curriculum, or day-to-day affairs. State's regulation of participating private schools, The while designed to ensure that the program's educational purposes are fulfilled, does not approach the level that the of constitutionally impermissible involvement. ¶52 In short, we hold amended MPCP, which provides a neutral benefit directly to children of economically disadvantaged families on a religious-neutral basis, does not run afoul of any of the three primary criteria the Court has traditionally used to has evaluate the whether purpose or a state effect educational assistance program of advancing religion. Since the amended MPCP has a secular purpose, does not have the primary effect of advancing religion, and does not 37 No. 97-0270 create an excessive entanglement, it is not invalid under the Establishment Clause.19 II. State Establishment Clause ¶53 the The next question presented in this case is whether amended MPCP Constitution.20 violates art. I, § 18 of the Wisconsin The Respondents argue, and the court of appeals concluded, that the amended MPCP violates both the "benefits clause" and the "compelled support clause" of art. I, § 18. Upon review, we conclude that the amended MPCP violates neither provision. ¶54 The "benefits clause" of art. I, § 18 provides: "nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries." This is Wisconsin's equivalent of the Establishment Clause of 19 Since we conclude that the amended MPCP does not violate the Establishment Clause, we need not address the issue, raised by Petitioners Marquelle Miller, et al., whether excluding sectarian private schools from the program violates the Free Exercise Clause of the First Amendment. 20 Wis. Const. art. I, § 18 provides as follows: The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries. 38 No. the First Amendment. See King v. Village of 97-0270 Waunakee, 185 Wis. 2d 25, 52, 517 N.W.2d 671 (1994); Holt, 66 Wis. 2d at 676. This court has remarked that the language of art. I, § 18, while "more specific than the terser" clauses of the First Amendment, carries the same import, Holt, 66 Wis. 2d at 676; both provisions "are intended and operate to serve the same dual purpose of prohibiting the 'establishment' of religion and protecting the 'free exercise' of religion." See State ex rel. Warren v. Nusbaum 314, N.W.2d 577 (Nusbaum (1974)(quoting II), 64 Nusbaum Wis. 2d I, 55 327-28, Wis. 2d at 219 332). Although art. I, § 18 is not subsumed by the First Amendment, see State v. Miller, 202 Wis. 2d 56, 63, 549 N.W.2d 235 (1996), we interpret and apply the benefits clause of art. I, § 18 in light of the United States Supreme Court cases interpreting the Establishment Clause of the First Amendment. See King, 185 Wis. 2d at 55; American Motors Corp. v. DILHR, 93 Wis. 2d 14, 29, 286 N.W.2d 847 (1979); State ex rel. Wisconsin Health Facilities Auth. v. Lindner, 91 Wis. 2d 145, 163-64, 280 N.W.2d 773 (1979).21 21 Citing our decision in State v. Miller, 202 Wis. 2d 56, 549 N.W.2d 235 (1996), the Respondents assert that we are precluded from looking to federal establishment clause jurisprudence in analyzing the amended MPCP under the "benefits clause" of Wis. Const. art. I, § 18. We disagree. In Miller, we correctly stated that some questions arising under art. I, § 18 "cannot be fully illuminated by the light of federal jurisprudence alone, but may require examination according to the dictates of the more expansive protections envisioned by our state constitution." Id. at 64. In Miller, however, we interpreted and applied the "freedom of conscience" clause, and not the benefits clause, of art. I, § 18. See id. at 63, 65-66. This court has traditionally looked to federal establishment 39 No. ¶55 97-0270 Unlike the court of appeals, which focused on whether sectarian private schools were "religious seminaries" under art. I, § 18, we focus our inquiry on whether the aid provided by the amended MPCP institutions.22 is "for the benefit of" such religious We have explained that the language "for the benefit of" in art. I, § 18 "is not to be read as requiring that some shadow of incidental benefit to a church-related institution brings a state grant or contract to purchase within the prohibition of the section." Nusbaum I, 55 Wis. 2d at 333. Furthermore, we have stated that the language of art. I, § 18 cannot be read as being "so prohibitive as not to encompass the primary-effect test." State ex rel. Wis. 2d 201, 227, 170 N.W.2d 790 (1969). Warren v. Reuter, 44 The crucial question, under art. I, §18, as under the Establishment Clause, is "not whether some benefit accrues to a religious institution as a clause jurisprudence, and in particular the primary effects test, when interpreting the "for the benefit of" language in the benefits clause of art. I, § 18. See, e.g., King v. Village of Waunakee, 185 Wis. 2d 25, 51, 517 N.W.2d 671 (1994); State ex rel. Wisconsin Health Facilities Auth. v. Lindner, 91 Wis. 2d 145, 163-64, 280 N.W.2d 773 (1979); State ex rel. Warren v. Nusbaum, 55 Wis. 2d 316, 333, 198 N.W.2d 650 (1972) State ex rel. Warren v. Reuter, 44 Wis. 2d 201, 227, 170 N.W.2d 790 (1969). We continue to do so in this case. 22 This court has construed "religious societies" to be synonymous with religious organizations. At the time of the adoption of our constitution in 1848, the word "seminaries" was synonymous with academies or schools. See State ex rel. Weiss v. District Board, 76 Wis. 177, 215, 44 N.W. 967 (1890). Sectarian private schools, therefore, constitute "religious seminaries" within the meaning of art. I, § 18. See State ex rel. Reynolds v. Nusbaum, 17 Wis. 2d 148, 156, 115 N.W.2d 761 (1962). 40 No. consequence of the legislative program, but 97-0270 whether principal or primary effect advances religion." its Nusbaum I, 55 Wis. 2d at 333 (quoting Tilton, 403 U.S. at 679). ¶56 Applying the primary effect test developed by the Supreme Court, we have concluded above that the primary effect of the amended MPCP is not the advancement of a religion. We find the Supreme Court's primary effect test, focusing on the neutrality and indirection of state aid, is well reasoned and provides the appropriate line of demarcation for considering the constitutionality of neutral such as the amended MPCP. transgress Clause the primary jurisprudence, educational programs Since the amended MPCP does not effect we assistance test also employed conclude in that Establishment the statute is constitutionally inviolate under the benefits clause of art. I, § 18. ¶57 This conclusion is not inconsistent with tradition or with past precedent of this court. traditionally accorded parents the primary Wisconsin Wisconsin has role in decisions regarding the education and upbringing of their children. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972); Wisconsin Indus. Sch. for Girls v. Clark County, 103 Wis. 651, 79 N.W.2d 422 (1899); accord Pierce v. Society of Sisters, (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). 268 U.S. 510 This court has embraced this principle for nearly a century, recognizing that: "parents as the natural guardians of their children [are] the persons under natural conditions motives and inclinations and being 41 having in the the most best effective position and No. 97-0270 under the strongest obligations to give to such children proper nurture, education, and training." Wisconsin Indus. Sch. for Girls, 103 Wis. at 668-69. ¶58 In this context, this court has held that public funds may be placed at the disposal of third parties so long as the program on nonsectarian its face is alternatives neutral and the between sectarian transmission of and funds is guided by the independent decisions of third parties, see, e.g., State ex rel. Atwood v. Johnson, 170 Wis. 218, 175 N.W.2d 589 (1919), and that public funds generally may be provided to sectarian educational institutions so long as steps are taken not to subsidize religious functions, see, e.g., Nusbaum II, 64 Wis. 2d 314. ¶59 In Nusbaum II, this court upheld a state program that provided educational benefits without charge to students with exceptional educational needs. Where public resources were inadequate to attend to a student's exceptional needs, the State could under the program directly contract with private sectarian institutions to provide the necessary services. 64 Wis. 2d at 320-21. court emphasized the See Nusbaum II, Reviewing the program, the Nusbaum II neutral process by which students were chosen to participate in the program, see id. at 320, and the great lengths to which the legislature had gone to make sure that the inculcation of religious tenets did not take place, see id. at 325. court Applying the primary effect test of Lemon, the concluded that the program Establishment Clause nor art. I, § 18. 42 violated neither See id. at 322, 329. the No. ¶60 97-0270 In Atwood, 170 Wis. 218, this court upheld a program, much like the amended MPCP, that provided neutral educational assistance. The Atwood court considered the constitutionality of educational benefits for returning veterans that encompassed paying the cost of schooling, at any high school or college, including could religious choose a schools. school, and Under the that State program, directly a student paid to the schools the actual increased cost of operation attributed to the additional students. Upholding the program under art. I, § 18, the court concluded: The contention that financial benefit accrues to religious schools from [this program] is equally untenable. Only actual increased cost to such schools occasioned by the attendance of beneficiaries is to be reimbursed. They are not enriched by the service they render. Mere reimbursement is not aid. Id. at 263-64. ¶61 In concluding that the amended MPCP violated art. I, § the court 18, of appeals relied heavily on this court's decisions in State ex rel. Weiss v. District Board, 76 Wis. 177, 44 N.W. 967 (1890) and State ex rel. Reynolds v. Nusbaum, 17 Wis. 2d 148, 156, 115 N.W.2d 761 (1962). We find the court's reliance was misplaced. ¶62 In Weiss, the court held that reading of the King James version of the Bible by students attending public school violated the religious benefits clause of art. I, § 18. Although the court's reasoning in Weiss may have differed from ours, its holding is entirely consistent with the primary effects test the Supreme Court has developed and we apply today. 43 No. Requiring public school students neither neutral nor indirect. to read from the 97-0270 Bible is The Edgerton schools reviewed in Weiss were directly supported by public funds, and the reading of the Bible was anything but religious-neutral. The program considered neutral in Weiss is far different from the indirect aid provided under the amended MPCP. and The holding in Weiss, therefore, does not control our inquiry in this case. ¶63 In Reynolds, 17 Wis. 2d 148, the court struck down a publicly supported designed to transportation benefit parochial program it schools. perceived was reaching its In conclusion, the Reynolds court applied a stricter standard under art. I, § 18 than that used by the Supreme Court under the Establishment Clause. See id. at 165. This court has since rejected applying this stricter standard in cases arising under the benefits clause of art. I, § 18. See, e.g., Lindner, 91 Wis. 2d at 163-64; Nusbaum II, 64 Wis. 2d at 328; Reuter, 44 Wis. 2d at 227. The court's analysis and conclusion in Reynolds are therefore not dispositive in our inquiry here. ¶64 The Respondents additionally argue that the amended MPCP violates the "compelled support clause" of art. I, § 18. The compelled support clause provides "nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry without consent . . . ." The Respondents assert that since public funds eventually flow to religious institutions under the amended MPCP, taxpayers are compelled to support places of worship against their consent. This argument is identical to the Respondents' argument under 44 No. the benefits clause. We will not interpret the 97-0270 compelled support clause as prohibiting the same acts as those prohibited by the benefits clause. Rather we look for an interpretation of these two related provisions that avoids such redundancy. See Kungys v. United States, 485 U.S. 759, 778 (1988). ¶65 In Holt, 66 Wis. 2d 659, this court interpreted the compelled support provision and applied it to a state program under which public school children were released from school so that they could the religious See id. at 676-77. instruction. Holt, attend court interpreted the centers for religious In the context provided in compelled support clause to prohibit the state from forcing or requiring students to attend or participate in religious instruction. See id. at 676. Under this interpretation, the court upheld the program, finding that the children participating in the program did so only by choice and that, although instruction directed at attendance. was proof of required, preventing See id. attendance the program's deception rather at the religious requirements than were compelling "Compulsion to attend is not, initially or subsequently, a part of the program." Id. at 677. The court therefore rejected the compelled support challenge. ¶66 Applying in this case the interpretation of the compelled support clause provided in Holt, we conclude that the amended MPCP does not violate that constitutional provision. Like the program in Holt, the amended MPCP does not require a single student to attend class at a sectarian private school. A qualifying student only attends a sectarian private school under 45 No. the program if the student's parent so chooses. 97-0270 Nor does the amended MPCP force participation in religious activities. On the contrary, the program prohibits a sectarian private school from requiring students attending under the program participate in religious activities offered at such school. to The choice to participate in religious activities is also left to the students' parents. Since the amended MPCP neither compels students to attend sectarian private schools nor requires them to participate in religious activities, the program does not violate the compelled support clause of art. I, § 18. ¶67 Const. In assessing whether the amended MPCP violates Wis. art. purpose IV, § doctrine, 18, art. we rely X, §3, or heavily conclusions in Davis, 166 Wis. 2d 501. the on Wisconsin our public analyses and In Davis, the school choice opponents attacked the original MPCP under a barrage of arguments similar to those raised by the Respondents in this case. Specifically, we concluded in Davis that the original MPCP did not violate art. IV, § 18, art. X, § 3, or the public purpose doctrine. In this case, we limit our analysis to determining whether the amendments made to the original MPCP change either the analyses we relied upon or the conclusions we reached in Davis. Upon review we conclude that they do not. III. ¶68 Private or Local Bill The third issue presented in this case is whether the amended MPCP is a private or local bill which was enacted in violation of the procedural requirements mandated by Wis. Const. art. IV, § 18. 46 No. ¶69 97-0270 Article IV, § 18 of the Wisconsin Constitution states in full: "No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed addresses in the the form title." in which This constitutional private or local legislation enacted and not the substance of that legislation. 166 Wis. 2d at 526. provision is See Davis, As we have explained, art. IV, § 18 serves three underlying purposes: 1) to encourage the legislature to devote its time to the state at large, its primary responsibility; 2) to avoid the specter of favoritism and discrimination, a potential which is inherent in laws of limited applicability; and 3) to alert the public through its elected representatives to the real nature and subject matter of legislation under consideration. Milwaukee Brewers v. DHSS, 130 Wis. 2d 79, 107-08, 387 N.W.2d 254 (1986). "The requirements of art. IV, § 18 are prescribed to ensure accountability of the legislature to the public and to 'guard against the danger of legislation, affecting private or local interests, being smuggled through the legislature.'" Davis, 166 Wis. 2d at 519 (quoting Milwaukee County v. Isenring, 109 Wis. 9, 23, 85 N.W. 131 (1901). The question here is whether the amended MPCP comes within the purview of art. IV, § 18. ¶70 In Davis, we set forth a two-fold analysis for assessing whether a bill or statute violates Wis. Const. art. IV, § 18: We must first address whether the process in which the bill was enacted deserves a presumption of constitutionality. Second, we must address whether 47 No. 97-0270 the bill is private or local. If the bill is found to be private or local, then the requirements of art. IV, § 18 apply; namely, that the legislation must be a single subject bill and the title of the bill must clearly reflect the subject. Id. at 520. We review the amended MPCP under this two-fold analysis. ¶71 Thus, our first inquiry is whether the process by which the amended MPCP was enacted deserves the presumption of constitutionality. Where the legislature is alleged to have violated a constitutional provision mandating the procedure by which bills must pass, we will not indulge in a presumption of constitutionality, "for to do so would make a mockery of the procedural constitutional requirement." City of Brookfield v. Milwaukee 896, Sewerage Comm'n, 144 Wis. 2d 912-13 n.5, 426 N.W.2d 591 (1988); see City of Oak Creek v. DNR, 185 Wis. 2d 424, 437, 518 N.W.2d 276 (Ct. App. 1994). "Nonetheless, this court may indulge the presumption of constitutionality where it is evident that the legislature did adequately consider or discuss the legislation in question, even where such legislation was passed as part of a voluminous bill." Oak Creek, 185 Wis. 2d at 437; see Davis, 166 Wis. 2d at 521-23. ¶72 was We find no evidence in this case that the amended MPCP smuggled contrary, or the logrolled record through the establishes legislature. that the On the legislature "intelligently participate[d] in considering" the amended MPCP. Davis, 166 Wis. 2d at 523 (quoting Brookfield, 144 Wis. 2d at 912 n.5). According to the Agreed Upon Statement of Facts in this case, the amendments to the original MPCP were proposed by 48 No. 97-0270 the Governor as a portion of the 1995-1997 biennial budget bill, which was referred to the Joint Committee on Finance. the spring MPCP, of 1995, along with discussed at the other public proposed amendments aspects of hearings the to biennial throughout the the During original budget, state.23 were The proposed amendments were then debated, specifically amended, and in June 1995, adopted by the Joint Committee on Finance. Assembly then debated, specifically amended, held a The public hearing on, and passed the proposed amendments as part of the biennial budget bill. The referred to the Senate. debated, and budget bill was then The Senate held public hearings on, concurred original MPCP. biennial in the proposed amendments to the On July 26, 1995, the amended MPCP was enacted as a portion of the 1995-97 State of Wisconsin Biennial Budget, 1995 Wis. Act 27. ¶73 evident Under the stipulated facts of this case, we find it that the amended MPCP was not smuggled through the legislature, but rather was forged in the deliberative kiln of public debate. The legislature adequately considered and discussed the amended MPCP, even though the proposed amendments were ultimately enacted as part of a multi-subject bill. We therefore of find it proper to 23 apply a presumption Public hearings on the proposed amendments to the original MPCP and other aspects of the biennial budget bill were held in the City of Milwaukee on April 3, 1995, in Cedarburg on March 21, 1995, in Madison on March 27, 1995, in Portage on March 23, 1995, and in River Falls on March 30, 1995. See Record Document 211A at 7. 49 No. 97-0270 constitutionality to the process in which the amended MPCP was enacted into law. ¶74 program Our is next line "private or Wis. 2d at 524. the constitution. of inquiry local" is whether legislation. See the amended Davis, 166 The term "private or local" is not defined in Legislation that is geographically specific will not automatically be considered private or local where the general subject matter of the legislation relates to a state responsibility, that is when "the subject thereof is such that the state itself has an interest therein as proprietor, or as trustee, or in its governmental capacity, for the benefit or in the interest of the general public." Milwaukee Brewers, 130 Wis. 2d at 111 (citations and internal quotations omitted). ¶75 To assess whether the amended MPCP is private or local legislation, we apply the test this court created in Brookfield. See Davis, 166 Wis. 2d at 527.24 The Brookfield test comprises five elements: First, the classification employed by the legislature must be based on substantial distinctions which make one class really different from another. Second, the classification adopted must be germane to the purpose of the law. 24 In assessing whether the amended MPCP is private or local legislation, we apply the five-factor test created in City of Brookfield v. Milwaukee Sewerage Dist., 144 Wis. 2d 896, 426 N.W.2d 591 (1988), because the amended MPCP is not specific on its face, involves classifications, does not violate Wis. Const. art. IV, § 31, but allegedly runs afoul of art. IV, § 18. See id. at 912; see also Davis v. Grover, 166 Wis. 2d 501, 525, 480 N.W.2d 460 (1992). 50 No. 97-0270 Third, the classification must not be based on existing circumstances only. Instead, the classification must be subject to being open, such that other cities could join the class. Fourth, when a law applies to a class, it must apply equally to all members of the class. . . . [F]ifth, the characteristics of each class should be so far different from those of the other classes so as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation. Davis, 166 Wis. 2d at 526 (quoting Brookfield, 144 Wis. 2d at 907-09). ¶76 five In Davis, we held that the original MPCP satisfied all elements private or of the local Brookfield legislation requirements in art. IV, § 18. test and subject therefore to the was not procedural See Davis, 166 Wis. 2d at 537. The 1995 amendments to the original MPCP did not change the program in any way that would alter our analyses or conclusions in Davis as to the first, third, fourth, and fifth elements of the Brookfield test.25 In this case, the Respondents assert only that, as a result of the changes made to the program since 25 In all aspects relevant to the first, third, fourth, and fifth elements of the Brookfield test, the amended MPCP is identical to the original MPCP upheld in Davis. First, like the original program, the amended MPCP involves a classification recognized and accepted by this court: cities of the first class. Second, since other cities can join this class, the classification is subject to being open. Third, the amended MPCP, by its terms, applies equally to all qualifying cities. Finally, the characteristics of cities of the first class are sufficiently different from those of other classes of cities so to suggest at least the propriety of substantially different legislation. See Davis, 166 Wis. 2d at 526-37. 51 No. 97-0270 Davis, the classification imposed by the amended MPCP does not satisfy the second element of the Brookfield test. We therefore limit our discussion to the second element of the Brookfield test. ¶77 The second element of the Brookfield test requires that "the classification adopted must be germane to the purpose of the law." Brookfield, 144 Wis. 2d at 907, 917-20. we that concluded the original MPCP satisfied In Davis, this element because it was "an experiment intended to address a perceived problem of inadequate educational opportunities Davis, 166 Wis. 2d at 530, 535. disadvantaged children." for We there explained: [T]he classification of first class cities is germane to the purpose of the law. Clearly, improving the quality of education and educational opportunities in Wisconsin is a matter of statewide importance. The best location to experiment with legislation aimed at improving the quality of education is in a first class city, a large urban area where the socio-economic and educational disparities are greatest and the private educational choices are most abundant. Id. at 535. ¶78 The Respondents contend that our holding in Davis does not control the determination in this case because the amended MPCP is no longer experimental in nature and therefore the classification of cities of the first class is no longer germane to the purpose of that law. We disagree. Despite some amendments, the program has retained its experimental character. In concluding that the original MPCP was experimental legislation, the Davis court focused on two characteristics of 52 No. the program: its limited participation (one percent 97-0270 of MPS membership) and its data compilation and reporting provisions. See id. at 533-34. The amended MPCP has retained these two characteristics. ¶79 First, like the original program, the amended MPCP is not an abandonment of the public school system. With the 1995 amendments, the legislature expanded the program by increasing to 15 percent of total MPS membership the number of financially disadvantaged students eligible to attend private schools under the amended MPCP. Even though this represents a substantial increase total in the number of students eligible to participate, the program still affects only a small portion of MPS membership. No less than 85 percent of the MPS membership will be unaffected by the amended MPCP. Although it provides a somewhat larger view, MPCP still "window of the effectiveness the opportunity alternative to the MPS." ¶80 amended to test provides but of a an Id. at 533.26 Second, like the original program, the amended MPCP continues to allow the State to measure the effects of choice and competition on education. See Davis, 166 Wis. 2d at 533. With the 1995 amendments, the legislature deleted some of the 26 Rather than destroying the program's experimental nature, the expansion of the program to a larger sample of students may make it easier for researchers to measure the effectiveness of this experiment in education. See Jay P. Greene, Paul E. Peterson, & Jiangtao Du, The Effectiveness of School Choice in Milwaukee: A Secondary Analysis of Data From The Program's Evaluation, at 26-27. 53 No. monitoring requirements from the original plan. the legislature deleted the requirement 97-0270 Specifically, that the State Superintendent conduct annual performance evaluations and report to the legislature, and it eliminated the Superintendent's authority to conduct financial or performance evaluation audits of the program. See 1995 Wis. Act 27 at §§ 4007m and 4008m. The amended MPCP, however, requires the Legislative Audit Bureau to conduct a financial and performance evaluation of the program and to submit it to each house of the legislature by January 15, See id. at § 4008s. 2000. ¶81 The mere fact that the legislature has chosen to conduct one evaluation in the year 2000 rather than on an annual basis does not destroy the experimental nature of the amended MPCP. As we explained in Davis, "[t]his experiment tests a theory of experiment education." will be Id. at 534. measured not only The by effects of test scores the this or graduation rates of those students to whom "life preservers" have been thrown,27 but also by the education those students who remain in MPS receive. Nor will the success or failure of this experiment by be measured focusing solely on those students participating in the program, but also by considering whether parental choice spurs competitiveness and innovation within the public education system. The 27 legislature has provided a See Davis, 166 Wis. 2d at 547 (Ceci, J., concurring)("The Wisconsin legislature . . . has attempted to throw a life preserver to those Milwaukee children caught in the cruel riptide of a school system floundering upon the shoals of poverty, status-quo thinking, and despair."). 54 No. 97-0270 reasonable process by which to review the effects of the amended MPCP. Article IV, § 18 does not dictate a particular timetable for such review. We therefore express no opinion whether yearly evaluations or one evaluation at the end of four years will provide a more accurate or more cost-effective measure of the amended MPCP's effects. ¶82 In short, we conclude that the amended MPCP, like the original address program, is experimental a perceived problem in the legislation quality educational opportunities in Wisconsin. of intended to education and The best location to experiment with such a program is in a city of the first class, where "socio-economic and educational disparities . . . are most Id. at 535. abundant." The amended MPCP's classification of cities of the first class is therefore germane to the purpose of the law. The satisfied. second element of the Brookfield test is Accordingly, we hold that the amended MPCP is not a private or local bill within the meaning of Wis. Const. art. IV, § 18, and thus not subject to its procedural requirements. IV. ¶83 Uniformity Clause The fourth issue presented in this case is whether the amended MPCP violates the uniformity provision of Wis. Const. art. X, § 3. The court of appeals did not reach this issue, and the circuit court concluded that the amended program does not violate the uniformity clause. ¶84 Wisconsin Constitution art. X, § 3 states: The legislature shall provide by law for the establishment of district schools, which shall be as 55 No. 97-0270 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; . . . . ¶85 The Respondents first argue that the amendments to the program, primarily the removal of funding limits that prevented a private effectively school from transforms operating private solely schools on public participating funds, in the amended MPCP into district schools subject to the nonsectarian clause of art. X, § 3. As in Davis, the key to this argument is whether private schools, by participating in the amended MPCP, become "district schools" for the purposes of the uniformity clause. We conclude that they do not. ¶86 Relying on the classification in Wis. Stat. § 115.01(1) and on the fact that a private school could receive 100 percent of its tuition from public funds, the Respondents contend that private schools participating in the amended MPCP will become "public schools" because they will be "elementary and high schools supported by public taxation." court squarely rejected the argument that In Davis this private schools receiving state funds under the original MPCP were "district schools" to which the uniformity Davis, 166 Wis. 2d at 538. requirement applies. See The court noted that the original MPCP explicitly referred to participating schools as "private schools" and observed that "[i]n no case have we held that the mere appropriation of public monies to transforms that school into a public school." 56 a private school Id. at 539-40. No. ¶87 We apply the same reasoning in this case. original MPCP, the amended program expressly participating schools as "private schools." school" is defined by statute to 97-0270 Like the refers to The term "private include those private institutions satisfying the requirements of Wis. Stat. § 118.165 or determined to be a private school by the State Superintendent under Wis. Stat. § 118.167. See Wis. Stat. § 115.001(3r). "We assume that the legislature was aware of this statutory meaning and intended to use 'private school' . . . as a statutory term of art." Davis, 166 Wis. 2d at 538. As in Davis, we conclude that the mere appropriation of public monies to a private school does not transform that school into a district school under art. X, § 3. This conclusion is not affected by the amount of public funds a private school receives. ¶88 The Respondents also argue that art. X, § 3 prohibits the State from diverting students and funds away from the public school system. Article X, § 3, the Respondents contend, requires that the district schools be the only system of statesupported education. This argument specifically rejected in Davis. too was raised and See Davis, 166 Wis. 2d at 538- 40. ¶89 In Davis, the choice opponents argued that the explicit requirement in art. X, § 3 that the State establish public district schools implicitly prohibits the legislature from spending public funds to support any schools other than district schools. As a dissenting opinion argued: "the constitutional system of public education was intended to be the 57 No. 97-0270 only general school instruction to be supported by taxation." Davis, 166 Wis. 2d at 558 (Abrahamson, J., dissenting). court, relying contention. on precedent of this court, The rejected that See id. at 537-38 (citing State ex rel. Comstock v. Joint Sch. Dist. No. 1, 65 Wis. 631, 636-37, 27 N.W. 829 (1886) and Kukor v. Grover, 148 Wis. 2d 469, 496-97, 436 N.W.2d 568 (1989)); accord Buse v. Smith, 74 Wis. 2d 550, 565, 247 N.W.2d 141 (1976); Reuter, 44 Wis. 2d at 221; City of Manitowoc v. Town of Manitowoc Applying the Rapids, 231 reasoning Wis. of 94, 98, Comstock 285 and N.W. Kukor, 403 the (1939). court concluded that art. X, § 3 provides not a ceiling but a floor upon which the legislature can build additional opportunities for school children in Wisconsin: The uniformity clause clearly was intended to assure certain minimal educational opportunities for the children of Wisconsin. It does not require the legislature to ensure that all of the children in Wisconsin receive a free uniform basic education. Rather, the uniformity clause requires the legislature to provide the opportunity for all children in Wisconsin to receive a free uniform basic education. Davis, 166 Wis. 2d at 539. ¶90 Similar to the original MPCP upheld in Davis, the amended MPCP in no way deprives any student of the opportunity to attend a public school with a uniform character of education. By enacting the amended MPCP, the State has merely allowed certain disadvantaged children to take advantage of alternative educational opportunities in addition to those provided by the State under art. X, § 3. The students participating in the 58 No. 97-0270 amended MPCP do so by choice and may withdraw at any time and return to a public school. "[W]hen the legislature has provided for each [] child the privileges of a district school, which he or she may freely enjoy, the constitutional requirement in that behalf is complied with." Comstock, 65 Wis. at 636-37. As in Davis, we conclude that the legislature has done so here. The amended MPCP merely reflects a legislative desire to do more than that which is constitutionally mandated. ¶91 We therefore hold that the sectarian private schools participating in the MPCP do not constitute "district schools" for the purposes of the uniformity clause. We also reaffirm the position that the legislature has fulfilled its constitutional duty to provide for the basic education of our children. The State's experimental attempts to improve upon that foundation in no way deny any student the opportunity to receive the basic education in the public school system. See Davis, 166 Wis. 2d at 539. V. Public Purpose Doctrine ¶92 The fifth issue presented in this case is whether the amended MPCP violates Wisconsin's public purpose doctrine. The court of appeals did not reach this issue, and the circuit court concluded that it does. ¶93 any The public purpose doctrine, although not recited in specific established clause in the constitutional state doctrine. constitution, See Hopper is a v. City Madison, 79 Wis. 2d 120, 128, 256 N.W.2d 139 (1977). wellof As this court stated in State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 59 No. 97-0270 414, 208 N.W.2d 780 (1973), "[p]ublic funds may be expended for only public purposes. An expenditure of public funds for other than a public purpose would be abhorrent to the constitution of Wisconsin." ¶94 Under the public purpose with the 'wisdom, merits concerned legislature's enactment.' 'public purpose can doctrine, or "[w]e are practicability not of the Rather we are to determine whether a be conceived which might reasonably be deemed to justify or serve as a basis for the expenditure.'" Millers Nat'l Ins. v. City of Milwaukee, 184 Wis. 2d 155, 17576, 516 N.W.2d 376 (1994)(quoting 129)(internal citation omitted). Hopper, 79 Wis. 2d at "A court can conclude that no public purpose exists only if it is 'clear and palpable' that there can be no benefit to the public." La Plante, 58 Wis. 2d at 56 (citation omitted). ¶95 public No party disputes that education constitutes a valid purpose, or that further that purpose. function. See Education, 347 recognized that schools may be employed to Education ranks at the apex of a state's Yoder, U.S. private 406 483, equal U.S. 493 at 213; (1954). educational Brown This v. court opportunities Board has of long are a fundamental right, see, e.g., Buse, 74 Wis. 2d 550, and that the State has broad discretion to determine how best to ensure such opportunities. See Davis, 166 Wis. 2d at 541-44; Kukor, 148 Wis. 2d 492-94; Atwood, 170 Wis. at 263-64. ¶96 The parties in this case dispute only whether the private schools participating in the amended program are under 60 No. proper governmental control and supervision, as 97-0270 required by Wisconsin Industrial School for Girls, 103 Wis. at 668. See Davis, 166 Wis. 2d at 541-42; Reuter, 44 Wis. 2d at 216. The Respondents allege that the amended MPCP lacks sufficient control and accountability to secure a public interest. They note that some of the reporting requirements in the original MPCP upon which the court in Davis focused have been eliminated by amendment. ¶97 The control and accountability requirements See Reuter, under the public policy doctrine are not demanding. at 216. imposed In Davis we explained: To test the propriety of expending public monies to a private institution for public purposes, this court must determine whether the private institution is under reasonable regulations for control and accountability to secure public interests. 'Only such control and accountability as is reasonably necessary under the circumstances to attain the public purpose is required.' Davis, 166 Wis. 2d at 542 (quoting 216)(internal citation omitted). only whether the amended Reuter, 44 Wis. 2d at We therefore must determine MPCP includes control and accountability requirements reasonably necessary to secure the public purpose to which it is directed. ¶98 The control and accountability arguments raised by the Respondents in this case were largely handled by this court in Davis. See id. at 541-45. In Davis, we upheld the original MPCP under a public purpose doctrine challenge. As in this case, the choice opponents in Davis argued that the controls in 61 No. the original MPCP were woefully inadequate. that the statutory controls applicable 97-0270 We there concluded to private schools coupled with parental choice sufficed to ensure that the public purpose was met. ¶99 See id. at 546. Similarly, in Reuter this court held that public appropriations to a private medical school did not violate the public purpose doctrine where the circumstances presented "no frivolous pretext for giving money to a private school but the using of a private school to attain a public purpose." 44 Wis. 2d at 214. not regulated to Reuter, The court noted that the private school was the same extent as public schools, but it concluded that: A private agency cannot and should not be controlled as two-fistedly as a government agency. . . . A private agency is selected to aid the government because it can perform the service as well or better than the government. We should not bog down private agencies with unnecessary government control. . . . We do not think it is necessary or required by the constitution that the state must legally be able to control the agency corporation in order to find sufficient regulations for control and accountability. The state is not interested in controlling the dayto-day operation of the medical school but in its end product. Id. at 217. ¶100 In light of the standard applied in Davis and Reuter, we conclude that control and accountability safeguards in the amended MPCP are sufficient to ensure that the program fulfills its purpose of promoting education. First, the private schools participating in the amended MPCP continue to be subject to the instruction, curriculum, and attendance regulations that govern 62 No. all private schools. 97-0270 See Wis. Stat. §§ 118.165(1) and 118.167; Davis, 166 Wis. 2d at 543. Second, the amended MPCP continues to require an annual financial audit by the State Superintendent and provides for an additional review by the Legislative Audit Bureau covering both financial and performance evaluations of the plan. See Wis. Stat. § 119.23(7)(am), (9). Finally, as in Davis, the schools participating in the amended MPCP are also subject to the additional school choice. checks inherent in the notion of "Control is also fashioned with the [plan] in the form of parental choice. . . . If the private school does not meet the parents' expectations, the parents may remove the child from the school and go elsewhere." 544. Davis, 166 Wis. 2d at These combined elements of the amended MPCP are more than sufficient control and accountability measures to ensure that the program serves the public purpose to which it is directed. ¶101 The Respondents MPCP violates the additionally public purpose argue doctrine that the because amended it funds religious education and other religious activities that are not public purposes. held, that The Respondents argue, and the circuit court because public funds flow to religious schools, the program does not serve a public purpose. this argument unfounded. private We find We have never interpreted the public purpose doctrine to incorporate an anti-establishment principle. That the State has chosen to include sectarian private schools in the amended MPCP does not render the program's public purpose invalid. Whether the State may adopt such an approach is an issue we resolve under the provisions of art. I, § 18. 63 No. ¶102 We therefore hold that the amended MPCP 97-0270 does not violate the public purpose doctrine because it fulfills a valid public purpose, and it contains sufficient and reasonable controls to attain its public purpose. VI. ¶103 In NAACP's Equal Protection Claim addition to the challenges raised by the Respondents, the NAACP alleges that the amended MPCP violates the equal protection clauses of the Fourteenth Amendment to the United States Constitution and art. I, § 1 of the Wisconsin Constitution.28 Although this issue was not addressed by the circuit court or the court of appeals, it was briefed and argued before this court by the NAACP. Upon review, we conclude that the NAACP's facial equal protection claim must fail as a matter of law. ¶104 It issues not is the often considered by repeated the 28 rule circuit in this court state will not that be The Fourteenth Amendment to the United States Constitution provides "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The functional equivalent of this clause is found in Wis. Const. art. I, § 1: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed." As we noted in State ex rel. Sonneborn v. Sylvester, 26 Wis. 2d 43, 49-50, 132 N.W.2d 249 (1965) even though art. I, § 1 is based on the Declaration of Independence, "there is no substantial difference" between its equal protection and due process provisions and that of the Fourteenth Amendment. Thus, in our analysis of the NAACP's equal protection argument, the two constitutional provisions are treated as equivalent. See id. at 50. 64 No. considered for the first time on appeal. 97-0270 See Binder v. City of Madison, 72 Wis. 2d 613, 618, 241 N.W.2d 613 (1976); Wirth v. Ehly, 93 Wis. 2d 433, 443, 287 N.W.2d 140 (1980). not absolute, however, and exceptions are made. This rule is See Binder, 72 Wis. 2d at 618; Cords v. State, 62 Wis. 2d 42, 54, 214 N.W.2d 405 (1974). In this case, all the issues raised are legal questions that can be disposed of "based upon a consideration of the record." State v. Conway, 34 Wis. 2d 76, 83, 148 N.W.2d 721 (1967); see Smith v. Katz, No. 96-1998, op. at 9 (S. Ct. June 2, 1998); Wirth, 93 Wis. 2d at 443-44. In the interests of judicial economy and the finality of this decision, we exercise our discretion to decide the entire case while it is before us. See Carlson & Erickson Builders v. Lampert Yards, 190 Wis. 2d 650, 656, 529 N.W.2d 905 (1995); Burger v. Burger, 144 Wis. 2d 514, 518, 424 N.W.2d 691 (1988); Wirth, 93 Wis. 2d at 444. We therefore proceed to address the NAACP's equal protection claim. ¶105 The Fourteenth Amendment guarantee of equal protection provides "a right to be free from invidious discrimination in statutory classifications and other governmental Harris v. McRae, 448 U.S. 297, 322 (1980). activity." The central purpose of the Equal Protection Clause is to prevent "official conduct discriminating on the basis of race." U.S. 229, violation 239 of (1976). this To guarantee, show a Washington v. Davis, 426 racial plaintiff discrimination must show in that a statute was enacted with a purpose or intent to discriminate. See id. at 242; see also Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-265 (1977). 65 The No. Supreme Court has adhered to this principle in 97-0270 school desegregation cases: "that there are both predominately black and predominately white schools in a community violative of the Equal Protection Clause." is not alone Davis, 426 U.S. at 240 (citing Keyes v. School Dist. No. 1, 413 U.S 189 (1973)). Even accepting the NAACP's allegations as true and construing them liberally, see Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 669, 292 N.W.2d 816 (1980), we conclude that the NAACP's allegations do not support a claim of a violation of equal protection. ¶106 In its facial challenge, the NAACP has not alleged, and we cannot reasonably infer, that the State acted with an intent to enacted discriminate the amended on the MPCP. basis of race Although the when NAACP the State generally concludes that the purposes of the MPCP were expanded to include segregation of the races in the MPS, the NAACP does not allege that the State enacted the discriminate based on race. private schools amended MPCP with the intent to Nor does the NAACP allege that the participating in 66 the amended program have No. 97-0270 excluded students on the basis of race or have in any other way intentionally discriminated against students based on race.29 ¶107 We note that, on its face, the amended MPCP is raceneutral. As we have explained, the amended MPCP allows a group of students, chosen without regard to race, to attend schools of their choice. participating provisions Furthermore, schools of 42 § 119.23(2)(a)4. to comply U.S.C. In the with § addition, amended the requires anti-discrimination 2000d. the MPCP See participating Wis. Stat. schools required to select program students on a random basis. are See id. at § 119.23(3)(a). ¶108 None of the facts presented by the NAACP support a claim that the State enacted the amended MPCP with an intent or purpose to discriminate based on race. Relying solely on the racial makeup of the MPS and of the private schools likely to participate in the amended MPCP, 29 the NAACP alleges that the In its brief and at oral argument, the NAACP relied heavily on Norwood v. Harrison, 413 U.S. 455 (1973). The claims made in Norwood are distinguishable from those made by the NAACP in this case. First, the plaintiffs in Norwood did not raise a facial challenge to the Mississippi textbook program, but rather challenged the program as it applied to particular private schools. See id. at 457. Second, unlike the NAACP in this case, the plaintiffs in Norwood alleged that the private schools receiving benefits under the textbook program had racially discriminatory policies and had excluded students on the basis of race. See id. Third, the plaintiffs in Norwood alleged that the State lent textbooks to private schools without regard to whether any of those schools had racially discriminatory policies. See id. at 456. In contrast to the program in Norwood, the amended MPCP requires that all participating schools comply with the anti-discrimination provisions of 42 U.S.C. § 2000d. See Wis. Stat. § 119.23(2)(a)4. 67 No. 97-0270 program violates equal protection because its likely effect will be to further segregate the MPS. We recognize that an invidious discriminatory purpose may be inferred from the totality of the relevant facts, including the fact that a challenged law may, in effect, bear more heavily on one race than another. 426 U.S. at 242. this case. facts See Davis, We, however, can make no such inference in In its facial challenge, the NAACP cannot establish sufficient to show that the amended MPCP has had a disproportionate impact on one race or that its provisions have been applied so as to invidiously discriminate on the basis of race. The NAACP's current facial challenge and our review in this case is limited to the statute on its face and to the stipulated facts. From the record before us, we conclude that the NAACP has not sufficiently alleged that the State enacted the amended MPCP with the discriminatory intent necessary to establish an equal protection claim. See Davis, 426 U.S. at 238-48. ¶109 While we accept as true the facts pled, we are not required to assume as true the legal conclusions pled by the NAACP. See State v. Wisconsin Tel. Co., 91 Wis. 2d 702, 720, 284 N.W.2d 41 (1979). We find that there are no circumstances under which the NAACP can prevail in its facial equal protection challenge to the amended MPCP. We therefore conclude that the NAACP's claim must be dismissed as a matter of law for failure to state a claim upon which relief can be granted. See Voss, 162 Wis. 2d at 748; Evans v. Cameron, 121 Wis. 2d 421, 426, 360 N.W.2d 25 (1985). 68 No. VII. ¶110 Since we find 97-0270 Severability that the amended MPCP passes constitutional scrutiny in all the issues presented before this court, we need not consider whether individual provisions are severable from Wis. Stat. § 119.23. VIII. Injunction ¶111 On August 25, 1995, this court granted an injunction enjoining implementation of all portions of the amended MPCP. After further proceedings, the circuit court dissolved this injunction for all portions of the amended program except with respect to the participation of sectarian private schools. Since we now conclude that the amended program is constitutional in its entirety, we order the circuit court to dissolve the injunction for all portions of the amended MPCP. ¶112 When the injunction first issued against implementation of the amended MPCP, thousands of children who were eligible for full tuition under the program already had enrolled in or begun attending their new private schools. Faced with having to remove their children from their chosen schools, many parents accepted private assistance to keep their children in those schools. students no When the injunction is lifted, many of these longer will be eligible to participate in the amended MPCP because they are already attending private schools. See Wis. Stat. § 119.23(2)(a)2. Their ineligibility is no fault of their own, but instead is solely a consequence of this litigation. Those children certainly are among the intended beneficiaries of this program. To require them to return to MPS 69 No. for a year to reestablish eligibility would be 97-0270 manifestly inequitable and disruptive to the public schools, to the private schools, and most importantly, to the children themselves. ¶113 In dissolving the injunction, we therefore remove the disability that the injunction placed on the school children, so that with respect to educational status, eligibility under the amended MPCP is determined on the date the injunction was issued. IX. ¶114 In conclusion, Conclusion based upon our review of both the statute now before us and the stipulated facts, we conclude that the amended MPCP does not violate the Establishment Clause of the First Amendment; Wis. Const. art. I, § 18; art. IV, § 18; art. X, § 3; or the Wisconsin public purpose doctrine. therefore reverse the decision of the court of appeals We and remand the matter to the circuit court with directions to grant the State's motion for summary judgment, to dismiss the NAACP's facial equal protection claim, and to dissolve the injunction barring the implementation of the amended MPCP. By the Court. The decision of the court of appeals is reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion. ¶115 ANN WALSH BRADLEY, J. did not participate. 70 No. 97-0270.wab ¶116 WILLIAM A. BABLITCH, J. (dissenting). I conclude, as did a majority of the court of appeals, see Jackson v. Benson 213 Wis. 2d 1, 570 N.W.2d 407 (Ct. App. 1997), that the amended Milwaukee Parental contained in Choice Wis. Const. the Program art. benefit of violates I, the § 18, religious prohibition against state expenditures for societies or seminaries. For the reasons recited therein, I respectfully dissent. ¶117 I am authorized to state that Chief Justice Shirley S. Abrahamson joins in this dissent. 1

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.