Jackson v. Benson
| Decision Date | 22 July 1997 |
| Docket Number | No. 97-0270,97-0270 |
| Citation | 213 Wis.2d 1,570 N.W.2d 407 |
| Parties | , 122 Ed. Law Rep. 277 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, d 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, Parents For School Choice,d Pilar Gonzalez, Dinah Cooley, Julie Vogel, Kate Helsper, Blong Yang, Gail Crockett, Yolanda Lassiter and Jeanine Knox, Intervenors-Defendants-Appellants. 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, d 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, Parents For School Choice, Pilar Gonzalez, Dinah Cooley, Julie Vogel, Kate Helsper, Blong Yang, Gail Crockett, Yolanda Lassiter and Jeanine Knox, Intervenors-Defendants-Appellants. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, Felmers O. Chaney, Lois Parker, on behalf of herself an |
| Court | Wisconsin Court of Appeals |
On behalf of the defendants-appellants, John T. Benson, et al., the cause was submitted on the briefs of Jay P. Lefkowitz, Theodore W. Ullyot and Paul D. Clement of Kirkland & Ellis of Washington, D.C. and Edward S. Marion of Murphy & Desmond, S.C. of Madison. Oral argument by Edward S. Marion.
On behalf of the intervenors-defendants-appellants, Marquelle Miller, et al., the cause was submitted on the briefs of Lauren Brown-Perry of Hicks & Brown-Perry Law Office, S.C. of Madison and Richard P. Hutchison of Landmark Legal Foundation of Kansas City, MO. Oral argument by Richard P. Hutchison.
On behalf of the intervenors-defendants-appellants, Parents for School Choice, et al., the cause was submitted on the briefs of Clint Bolick, William H. Mellor III and Nicole S. Garnett of the Institute for Justice of Washington, DC; Stephen P. Hurley of Hurley, Burish & Milliken, S.C. of Madison; and Michael D. Dean of Waukesha. Oral argument by Clint Bolick.
On behalf of the plaintiffs-respondents, Warner Jackson, et al., the cause was submitted on the brief of Steven R. Shapiro of New York City, on behalf of American Civil Liberties Union Foundation; Steven K. Green of Washington, DC, on behalf of Americans United for Separation of Church and State; Peter M. Koneazny of Milwaukee, on behalf of American Civil Liberties Union of Wisconsin Foundation, Inc.; and Jeffrey J. Kassel and Melanie E. Cohen of LaFollette & Sinykin of Madison. Oral argument by Jeffrey J. Kassel.
On behalf of the plaintiffs-respondents, Milwaukee Teachers' Education Association, et al., the cause was submitted on the brief of Elliot M. Mincberg and Judith Schaeffer of Washington, DC, on behalf of People for the American Way; Robert H. Chanin and John M. West of Bredhoff & Kaiser, P.L.L.C. of Washington, DC; Timothy E. Hawks of Shneidman, Myers, Dowling & Blumenfield of Milwaukee, on behalf of Wisconsin Federation of Teachers; Bruce Meredith and Chris Galinat of Madison, on behalf of Wisconsin Education Association Council; and Richard P. Perry and Richard Saks of Perry, Lerner & Quindel of Milwaukee. Oral argument by Robert H. Chanin.
On behalf of the plaintiffs-respondents, National Association for the Advancement of Brief of amicus curiae was submitted by Bradden C. Backer of Godfrey & Kahn, S.C. and Robert L. Gordon of Weiss, Berzowski, Brady & Donahue, both of Milwaukee, on behalf of the Milwaukee Jewish Council for Community Relations and the Wisconsin Jewish Conference.
Colored People, et al., the cause was submitted on brief by James H. Hall, Jr. of Hall, Patterson & Charne of Milwaukee and William H. Lynch of Law Offices of William H. Lynch of Milwaukee. Oral argument by James H. Hall, Jr.
Brief of amicus curiae was submitted by Marc D. Stern and Lois C. Waldman of New York City, on behalf of the American Jewish Congress and Anti-Defamation League.
Brief of amicus curiae was submitted by K. Scott Wagner of Hale & Lein, S.C. of Milwaukee; and James C. Geoly, Ryan D. Meade and Kevin R. Gustafson of Chicago, IL, on behalf of the Center for Education Reform, American Legislative Exchange Council, CEO America, CEO Central Florida, CEO Connecticut, CEOS for Educational Change, Citizens for Educational Reform, Educational Freedom Foundation, James Madison Institute, the Jewish Policy Center, the "I Have a Dream" Foundation (Washington, D.C. Chapter), Institute for Public Affairs, Liberty Counsel, Maine School Choice Coalition, Pennsylvania Manufacturers Association, Reach Alliance, South Carolina Policy Council, Texans for School Choice, and United New Yorkers for Choice.
Before DYKMAN, P.J., and ROGGENSACK and DEININGER, JJ.
The Milwaukee Parental Choice Program, § 119.23, STATS., 1995 Wis. Act 27, §§ 4002-4009, permits up to 15% of the student membership of the Milwaukee Public School (MPS) system to attend private schools, both sectarian and nonsectarian, at state expense. Plaintiffs brought these actions claiming that the amended program violates the First Amendment of the U.S. Constitution and various provisions of the Wisconsin Constitution. Defendants appeal the trial court's order which granted plaintiffs' motions for summary judgment and declared the amended program unconstitutional. Because we conclude that the amended program violates the religious benefit clause of Article I, section 18 of the Wisconsin Constitution, 1 we affirm.
The parties have stipulated to certain facts. The following background summary is taken from the agreed upon facts, including exhibits attached thereto, and with respect to certain matters, from the trial court's decision and order.
The legislature enacted the Milwaukee Parental Choice Program, § 119.23, STATS., as a part of 1989 Wis. Act 336. As amended in 1993, the program permitted up to 1.5% of the pupil "membership" 2 of MPS to attend "at no charge, any nonsectarian private school located" in the City of Milwaukee, subject to certain eligibility requirements. The total pupil membership of MPS was more than 98,000 for the 1995-96 school year. Approximately 1500 pupils were permitted to participate under the original program, and as we discuss below, approximately 15,000 pupils would be eligible for the program as subsequently amended in 1995. Eligibility for participation in the program is limited to pupils from families whose income does not exceed 1.75 times the federal poverty level.
A private school accepting students under the program must notify the State Superintendent of Public Instruction of its intent to participate by May 1st of the previous school year. Additionally, a private school accepting students under the program must comply In return for accepting students under the original program, a private school receives payments directly from the State equal to the amount of state aid per student to which MPS would be entitled under state school aid distribution formulas. The aid amount was approximately $2500 per student in the initial year of the program. The amount of state aid received by MPS is reduced by the amount of payments made to private schools under the program.
with state and federal anti-discrimination laws, and with health and safety provisions that apply to public schools. Not more than 65% (originally 49%) of a private school's enrollment may consist of pupils attending the private school under the original program. In order to continue participation in the program in subsequent years, a private school must satisfy certain performance criteria, assuring that at least a certain percentage of the pupils participating in the program advance one grade level each year, maintain a certain average attendance rate, demonstrate significant academic progress, or meet parent involvement criteria established by the school.
The original program called for extensive monitoring, evaluation, and reporting regarding the program and its participants. Specifically, the State Superintendent of Public Instruction was required to submit an annual report to the legislature regarding student achievement, attendance, discipline, and parental involvement for students in the program as compared to pupils enrolled in MPS district schools. The original statute further directed the State Superintendent to monitor performance of pupils in the program and...
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Jackson v. Benson
...should. ¶2 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 for Dane County, Paul B. Higginboth......
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Jackson v. Benson, 2002 WI 14 (Wis. 7/9/2002)
...an order of the circuit court for Dane county, Paul B. Higginbotham, Judge, finding the amended MPCP unconstitutional. Jackson v. Benson, 213 Wis. 2d 1, 570 N.W.2d 407 (Ct. App. 1997). The majority of the court of appeals concluded that the amended MPCP was invalid under Article I, Section ......
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Jackson v. Benson
...an order of the circuit court for Dane county, Paul B. Higginbotham, Judge, finding the amended MPCP unconstitutional. Jackson v. Benson, 213 Wis. 2d 1, 570 N.W.2d 407 (Ct. App. 1997). The majority of the court of appeals concluded that the amended MPCP was invalid under Article I, Section ......
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State v. Kirkpatrick
...primary responsibility is to decide the case before us, not to develop and declare the law of this state. Jackson v. Benson, 213 Wis.2d 1, 18, 570 N.W.2d 407, 415 (Ct.App.1997). We will thus review whether, under the facts and circumstances of this case, Kirkpatrick had a reasonable expecta......
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Government as administrator vs. government as purchaser: do rules or markets create greater accountability in serving the poor?
...of the biennial budget. 1995 Wis. Laws 27 [subsection] 4002-4009. (9.) Davis v. Grover, 480 N.W.2d 460 (Wis. 1992); Jackson v. Benson, 570 N.W. 2d 407, rev'd 578 N.W.2d 602 (Wisc. 1998), cert. denied, 525 U.S. 997 (10.) Davis v. Grover, 480 N.W.2d 460 (Wis. 1992); Jackson v. Benson, 570 N.W......