A Catholic high school that straddles Milwaukee and a suburb is not eligible to participate in the publicly funded school voucher program for poor Milwaukee students, a state appeals court ruled Tuesday.

Thomas More High School cannot participate in the Milwaukee Parental Choice Program because the physical school buildings are in St. Francis, even though green space, a parking lot and the school track are located in the city of Milwaukee, the First District Court of Appeals ruled.

The court ruled 2-1 the Department of Public Instruction was correct in denying the school's application, saying state law clearly limits the program to schools in Milwaukee. Because the buildings are not located in the city, the school cannot obtain safety permits from the city required under state rules, the court noted.

In a dissent, judge Ralph Fine said the ruling allows DPI Secretary Elizabeth Burmaster "to trump the Legislature's command that poor children living in the City of Milwaukee be able to attend private schools 'located in the city' of Milwaukee."

"In my view, a school is where it is, and if it straddles two or more municipalities, it is 'located' in each of them," Fine wrote.

The ruling is a setback for Thomas More and advocates for expanding the 15-year-old voucher program under which the state pays for poor students to attend private schools, including religious ones. About 15,000 students used vouchers to attend more than 100 schools last school year.

"We're disappointed for those families that are unable to afford a quality private education in the city of Milwaukee that want to come to Thomas More," said Lawrence Haskin, a lawyer for the school.

Thomas More, a school of about 440 students, has unsuccessfully tried to join the program since 1999. After the state turned down its application, voters rejected a plan to detach the land from St. Francis so it could be annexed by Milwaukee.

Haskin said the school had not yet decided whether to appeal to the state Supreme Court or to renew efforts to lobby for a state law allowing the school to join.

Gov. Jim Doyle in 2003 vetoed a bill that would have allowed Thomas More and other schools located in the county of Milwaukee to take part in the program, agreeing with critics who say an expansion would take away funding for public schools.

The Wisconsin Education Association Council, the state's largest teachers' union, has opposed any expansion of the program and has been major backers of Doyle and Burmaster, who won re-election this spring.

In his dissent, Fine said Burmaster had made "a clearly political decision" in rejecting Thomas More's application.

DPI spokesman Joe Donovan said the department's decision was based on state law that limits the program to schools in Milwaukee and that politics had no role.

"The Department of Public Instruction does its best to implement the laws that are written and we're happy the court agrees with us," he said.