McCallum says state will file brief with U.S. Supreme Court

Gov. Scott McCallum cast Wisconsin's lot Monday with the state of Ohio in a landmark school voucher case and said the U.S. Supreme Court should give low-income children in Cleveland the same opportunity they have in Milwaukee: to attend private and religious schools with taxpayers' money.

"This is a program that is working in Milwaukee - a wonderful program," McCallum told third- and fourth-graders at St. Marcus Lutheran School, one of 113 schools in the city's private school choice program.

McCallum praised St. Marcus, 2215 N. Palmer St., as a place where students love to read and rarely miss school.

Chris Ahmuty, executive director of the American Civil Liberties Union of Wisconsin, dismissed the announcement as political "spin" meant to bolster an unconstitutional program. Some voucher schools fail to educate children, Ahmuty said.

The ACLU's Ohio chapter is representing some Cleveland voucher opponents.

Wisconsin's friend-of-the-court brief is expected to be one of many filed by third parties in the Cleveland case. President Bush's administration jumped in even before the Supreme Court agreed to decide the matter, arguing in a rare unsolicited brief that the issue had "vital national importance."

The heightened interest comes partly because observers see the case as also holding the keys to the future of existing voucher programs in Milwaukee and Florida, and in efforts to launch programs elsewhere. Not since 1973 has the Supreme Court dealt directly with whether the Constitution allows government money to flow to religious schools.

But in the intervening years, a new legal theory has given that question added significance in a whole range of arenas where people receive services from the government. In essence, this "choice" model holds, the government is not supporting religion if it gives money to people who voluntarily pass the money on to schools or social service agencies with religious ties.

Ahmuty said it's "a sham" to argue that voucher programs involve only the free choices of families that receive government money. The program directly supports schools, he said, because the vouchers' value is based on schools' operating costs and not on actual tuition, which is usually lower. "If it were just benefiting the parents, they could just pay tuition and that would be it," he said.

Gordon Giampietro, an attorney at the Milwaukee law firm of Michael Best & Friedrich who is working on the state's brief, said previous Supreme Court decisions support the choice theory.

Wisconsin also will argue that a federal appeals court should have considered more than Cleveland's brief experience with vouchers in striking down the program there, Giampietro said.

A 6th Circuit U.S. Court of Appeals panel ruled 2-1 that because most schools accepting vouchers in Cleveland were religious, the program violated the First Amendment's ban on any government establishment of religion. In Milwaukee, Giampietro said, more secular schools have opened or begun participating in the school choice program as the years have passed.

"You really can't take a snapshot of facts and decide the constitutionality of a voucher program on that snapshot," he said.

Milwaukee's voucher program, with 10,739 students in its 12th year, is the nation's oldest and largest. It has allowed students to attend religious schools only since 1998, after the Wisconsin Supreme Court said that would be constitutional and the U.S. Supreme Court declined to hear an appeal. The vouchers in Milwaukee are worth up to $5,553 a student this year.

Cleveland's program has about 4,000 students who receive up to $2,250 apiece toward tutoring or tuition at private schools. The Ohio General Assembly established the program in 1995.

McCallum called the choice program especially important in light of an October report that showed Milwaukee Public Schools failed to meet 14 of 15 key goals for student performance. Asked how he would help MPS improve, McCallum said the choice program helps because it lets families hold the district accountable.

"If you don't have alternatives for parents, you're saying, 'Scores may go down, but too bad,' " McCallum said.

He said more money for public schools isn't an option because the state is facing a budget deficit of up to $1.3 billion.

But, terming support for school choice an investment in the state's future, McCallum said Wisconsin will pay attorneys from Michael Best & Friedrich and a Madison firm up to $25,000 to prepare its brief. The work didn't go to Attorney General James Doyle, McCallum said, because Doyle "has not been supportive of the program."

A spokesman for Doyle said it was difficult to comment without seeing the governor's brief, which has not been filed but is due Friday. The court is expected to hear the case this winter and rule by June.