The U.S. Supreme Court ruled Thursday that private school voucher programs, such as the one involving more than 10,000 students in Milwaukee, are constitutional.
By a 5-4 to vote, with the court's conservatives on the winning side, the court gave a major boost to the movement to allow students to attend private schools, including religious schools, with public money supporting their education.

The prevailing opinion said that such programs are constitutional, provided that parents make the choice of what school their children attend and provided that there is a wide range of religious and non-religious schools to choose from.

The decision came in a case involving a challenge to a six-year-old school choice program in Cleveland, where more than 4,000 students attend private schools using $2,250 vouchers from the state of Ohio.

"We believe that the program challenged here is a program of true private choice," Chief Justice William H. Rehnquist wrote for himself and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

The oldest and largest school choice program in the United States is in Milwaukee, where 103 schools enrolled more than 10,000 students in the school year that just ended. The students used state vouchers worth up to $5,553 to pay for their education.

The decision does not mean that vouchers will be available anywhere besides Milwaukee, Cleveland and Florida, the three existing programs in the U.S., but it does mean that key legal questions that had clouded efforts to expand the voucher movement have been answered.

The decision could also provide increased momentum to Bush administration plans to expand the use of faith-based organizations in social service programs.

In Wisconsin, the decision lifts the lingering question of the legal status of the program. The state Supreme Court ruled in 1998 that including religious schools in the Milwaukee choice program was constitutional. The U.S. Supreme Court declined at that time to consider an appeal in that case.

The decision is also likely to give the school choice movement greater political strength in the state, although it is still subject to decisions, perhaps each year, in the state Legislature on whether it should be considered.

Last Friday, state Senate Democrats dropped their efforts to have the program cut sharply as part of the effort to deal with the state budget surplus, assuring that it would be funded as planned for the coming school year.

The U.S. Supreme Court agreed to consider the Cleveland case after refusing for several years to take on the question of the constitutionality of vouchers. In particular, the court in 1998 did not agree to hear an appeal of the Wisconsin Supreme Court decision that opened the way for the Milwaukee school choice program to expand dramatically and to include religious schools

But in the Cleveland case, state and federal courts had issued conflicting rulings on the constitutionality of the program, which basically forced the high court to address the issue.

In the early the 1970s, the court's position had appeared to be quite clear: Public money going to religious schools, especially for general operating support, was impermissible under the constitution.

But a series of decisions since then had moved the line closer and closer to allowing such support. Two years ago, in a 6-3 decision, the court ruled that a Louisiana program in which public money was used to buy computers for religious schools was constitutional. In that decision, Justice Stephen Breyer joined Justice Sandra Day O'Connor in an opinion that took a somewhat middle-of-the-road position approving the plan, while Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy joined in an opinion that clearly signaled their support for the idea of parent-directed school vouchers.

The idea of school vouchers is often traced back to the 1950s and to University of Chicago economics professor Milton Friedman, who proposed that all parents be given vouchers to cover the cost of their child's education and then choose the school they wanted. Friedman, a legend for his advocacy of free markets, argued that if everyone had the right to choose a school, the marketplace of education would mean good schools would thrive and bad schools would fail.

But the idea got it most tangible boosts in Wisconsin many years later.

In 1990, a combination of support from Republicans, led by then-Gov. Tommy Thompson, and from some Milwaukee African American leaders, particularly Rep. Annette Polly Williams (D-Milwaukee), led to the creation of the first voucher program in the US.

In its first year, the program involved only about 300 students at a half dozen private but secularly-operated schools. It cost less than $750,000 for the year. No religious schools were allowed to participate.

In 1995, the state Legislature, again with Thompson's strong support, voted to expand the program, raising the limit on how many students could participate from about 1,500 to about 15,000 - a ceiling that has not been reached - and allowing religious schools to participate.

A series of state Supreme Court and lower court decisions held up implementation of that plan until a 4-2 decision by the state Supreme Court in June 1998 held that the law was constitutional.

That fall, the number of students participating jumped from about 1,500 to more than 5,500 and the number of schools rose from 23 to 86. Both totals have continued to grow steadily.

For the 2001-'02 school year, 103 Milwaukee schools enrolled more than 10,700 students taking part in the choice program. About two-thirds of the schools are religious schools, most of them Catholic. The program had a budget for the past school year of almost $60 million and schools received up to $5,553 for each participating student.

The requirements to get into the Milwaukee program generally include that a student must live in the city of Milwaukee, attend a school in the city and come from a home with income that does not exceed amounts on a specific schedule set by the state. For example, for a child in a household of four (including parents and children and potentially other relatives), the income limit for the 2002-'03 school year is $31,536. For a household of six, it is $42,328.

The amount of money paid to schools through each voucher is one of the most significant differences between the Milwaukee and Cleveland programs. In Cleveland, the amount is set at $2,250 from public money. The Milwaukee payments, tied to the amount of state aid for instruction in public schools, is expected to rise to $5,785 for 2002-'03.

The 2-1 federal appeals court decision that held the Cleveland program unconstitutional was based in large part on the court's determination that the Cleveland payments were not large enough to cover the cost of educating a child. The majority in that decisions said that the result was that religious institutions, with the ability to provide additional financial support for a school, had an impermissible advantage over non-religious schools in taking part in the program. Indeed, in Cleveland, more than 90% of the participating schools are religious.