Vouchers, Hypocrisy, Issues: The Supreme Court Race

by folkbum

Question: What do the following quotations have in common?

• One problem with the "whack 'em all" approach the Wisconsin Supreme Court took toward lead paint companies last spring is you never know where the hammer's going to fall next.

• School choice needs clarification from the court? In what possible way? [T]he matter is crystalline. School choice is constitutional. The matter is settled.
----------• [The Wisconsin Supreme Court] announced that it would apply rational basis scrutiny "with teeth" and proceeded to, essentially, substitute its own judgment for that of the legislature

• The court also rejected establishment clause challenges to school choice in Jackson v. Benson. Would Justice Clifford like to revisit those decisions? There is no way to know. But it does make for interesting speculation.
----------• The poll also found widespread disapproval for many of the Court’s most egregious acts of activism, including the lead paint and med mal caps decisions.

• If the case came up again, and one can imagine ways it could arise, with Linda Clifford on the Court, it is possible that Jackson could get reversed.----------• The court struck down limits on medical malpractice non-economic awards, opened the door to massive punitive damage awards, and, in a case involving lead paint, adopted an unprecedented and radical theory that will allow businesses to be sued for things they may not actually have made.

• A. Because it’s important to thousands of families in its audience.
Q. Why is it news that Linda Clifford wants to re-open the school choice case?

Each set of quotations is from the same author. Each author insists that recent Wisconsin Supreme Court cases--medical malpractice and lead paint, specifically--were wrongly decided, that the court went off in an errant and bizarre direction that needs serious correcting. There's just no way that those cases could possibly be considered settled law.

And each author is then duly shocked--just shocked!--that candidate Linda Clifford would indicate that school funding and school choice decisions of a decade ago "interested" her and might need further "clarification." That, they all say, is settled law.

As it turns out, the definition of settled law certainly seems to be "court decisions I agree with"--in much the same way judicial activism often turns out to mean "court decisions I disagree with." But I don't bring this up merely because I enjoy these kind of juxtapositions that make plain the other side's hypocrisy (though it does make me giggle on the inside). No, I bring this up because I keep getting criticized--from the left as well as the right--to write about something other than Judge Annette Ziegler's, whaddyacallit, blatant disregard for the judicial code of conduct, namely issues.

Well, here's one that I actually know and care about--the Milwaukee Parental Choice Program, or, as it's known in the vernacular, vouchers. And there's a very good reason why Linda Clifford might think that the issue is somewhat less than settled, and it's known in my house as Article I, section 18:

[N]or shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.

The question is whether or not the voucher program, which sends 80% of its taxpayer dollars (money "drawn from the treasury") to religious schools, violates Article I, section 18. The original court in Jackson v. Benson held (not without dissent) that the MPCP's expansion to include religious schools was not sufficiently "to the benefit of" the "religious societies" running the schools.

But that was in 1997 before the expansion actually happened; the court really had nothing to go on but its gut intuition about what might happen should the program be expanded. We've had a decade of data since to weigh, and it may be worth revisiting the question.

There is little chance that the United States Supreme Court would revisit the issue, since it found no conflict with the First Amendment and, frankly, I don't see much of one, either. That leaves just the state court, and the distinctly different clause--the benefits clause, as it's known. (Despite the reflexive criticism Clifford got from the right for saying so, it's true that the state and federal courts don't always have to "march in lockstep.")

Among the best collectors of data on the MPCP is the Public Policy Forum. It released its 2007 report on the program in February. It received no fanfare and, as far as I can tell, one single mention in the media, by Sarah Carr on the Journal Sentinel's education blog. I haven't written about it yet because I've been pretty busy--still am--but I'm surprised no one else has, because its conclusions are striking and bear a direct relation to this issue.

I made some predictions last year about what would happen once the increased enrollment cap came to be, with its attendant easing of financial restrictions on participation. I missed some of them and others it's too early to tell on, but there was one that I nailed:

A significant portion of the increase--I'm going to guess at least 1000, if not a full 2/3--will be moderate-income white students. Changes in the law will allow many currently ineligible students to slip right into the program without even having to change schools.

I wrote that in stark contrast to the people trumpeting the compromise as a way to help out poor minority students stuck in dead-end MPS schools. Their concern is touching, but I would bet almost all of them knew what time it was. The PPF report tells us:

The 17,951 students using vouchers represent an increase over last year of 2,516 voucher users. However, the growth in total enrollment in these schools was much less, at 620 students; almost 60% of the new voucher users were therefore not new to the private schools. [emphasis in the original]

As you dig deeper into the report, the ramifications of this become obvious:

But upon closer analysis, it appears that MPS may not be feeling the competition that voucher advocates had hoped. In 1998 and 2006, the two years in which the program had structural changes to allow thousands more students to be eligible to receive vouchers, more private school students took advantage of the changes than public school students. The new voucher users tend to already be in private school; 58% of new voucher users in 1998 and 60% in 2006. [. . . I]n the Catholic and Lutheran schools in particular, new voucher users tended to be students that were already attending these schools.

If you look at the accompanying graphs, you'll see that Catholic schools enrolled about 150 more students for this year, but added 950 to their rolls of voucher students. The Lutherans' total enrollment was up by only a handful of students, but 450 students started using vouchers this year.

Supporters of the program--the former Dennis York Christian Schneider, for example--should be confounded; Schneider writes about the Supreme Court race with exactly this issue in mind, asking to know what the candidates think about "Wisconsin’s school choice program, which gives low-income African American children a chance to escape Milwaukee’s failing schools." But now we know--and should have known back in 1999 or so, after the expansion to religious schools--that the big benefits are going to students who wouldn't be in MPS anyway; the money is propping up the Catholic and Lutheran schools who spent the 1990s hemorrhaging students and seeming doomed to failure.

If I were calling it, knowing what we know now, this seems like a "benefit" to "religious societies" that comes straight out of the state's treasury. For all I know, Linda Clifford doesn't see it as an Article I, Section 18 violation, even with the new information. And prehaps Annette Ziegler would call it a conflict. Neither one, as part of that same judicial code of conduct that Ziegler occasionally ignores, can say specifically how they'd rule.

But to say that a decade later, with a decade's worth of information about how the MPCP is using tax dollars "for the benefit of religious societies," the case cannot be reconsidered is ridiculous. It can be, and should be, and someday, I hope, it will be.