Jackson v. Benson

570 N.W.2d 407, 213 Wis. 2d 1, 1997 Wisc. App. LEXIS 973

• Court: Court of Appeals of Wisconsin
• Decided: August 22, 1997
• Docket: 97-0270
• Status: Published

Opinions

DEININGER, J.

The Milwaukee Parental Choice Program, § 119.23, Stats., as amended by 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.

BACKGROUND

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.

a. The Original Milwaukee Parental Choice Program

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 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.

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.

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 empowered him or her to conduct one or more financial and performance evaluation audits of the program. The legislative audit bureau was also directed to perform a financial and performance audit and to report to the legislature by January 15,1995.

During the 1994-95 school year, approximately 800 pupils attended approximately twelve nonsectarian private schools under the original program. For 1995-96, there were approximately 1600 pupils attending approximately seventeen nonsectarian private schools under the program.

The original program withstood a state constitutional challenge in Davis v. Grover, 166 Wis. 2d 501, 480 N.W.2d 460 (1992). The supreme court determined that the original program "was an experiment intended to address a perceived problem of inadequate educational opportunities for disadvantaged children." Id. at 530, 480 N.W.2d at 470 (citation omitted). It concluded that the enactment of the original program did not constitute a "private or local bill" within the meaning of Article IV, section 18 of the Wisconsin Constitution; that the private schools participating in the program did not constitute "district schools" for purposes of the "district school uniformity clause," Article X, section 3 of the Wisconsin Constitution; and that sufficient safeguards existed, providing governmental control and supervision of the program, to insure that the "public purpose doctrine" was not violated.

b. The Amended Milwaukee Parental Choice Program

In the biennial budget bill, 1995 Wis. Act 27, §§ 4002-4009, the legislature significantly amended the original program. Amendments to the program include the following:

(1) The limitation that participating private schools be "nonsectarian" was removed. See id. § 4002.

(2) Allowable pupil participation was increased to 7%, and eventually 15%, of the MPS pupil membership. See id. § 4003.

(3) The requirement for the State Superintendent's annual performance evaluation and report to the legislature was deleted, as was the superintendent's authority to conduct "one or more financial or performance evaluation audits" of the program. See id. §§ 4007m and 4008m.

(4) A change was made in the way state aid payments to participating private schools is administered. Instead of making the state aid for participating students payable directly to the private school of attendance, the aid is to be made payable to the student's "parent or guardian." The Department of Public Instruction (DPI) is directed, however, to "send the check to the private school," and "[t]he parent or guardian shall restrictively endorse the check for the use of the private school." See id. § 4006m.

(5) A limitation was placed on the amount of the per student aid payment. A participating school will receive the lesser of the MPS per student state aid or the private school's "operating and debt service cost per pupil that is related to educational programming" as determined by DPI. See id. § 4006m.

(6) The limitation that no more than 65% of a private school's enrollment may consist of program participants was repealed. See id. § 4003.

(7) A religious activity "opt-out" provision was added. A private school "may not require a pupil attending the private school under this section to participate in any religious activity if the pupil's parent or guardian submits to the pupil’s teacher or the private school's principal a written request that the pupil be exempt from such activities." See id. § 4008e.

The amendments to the program greatly expand not only the number of students who are allowed to participate, but also the number of private schools in the City of Milwaukee which may now accept students in the program. There are approximately 122 private schools in the city, of which approximately thirty-three are nonsectarian and approximately eighty-nine are sectarian. Approximately 84% of the pupils who attended private schools in the City of Milwaukee during the 1994-95 school year attended sectarian private schools.

Attached to the parties agreed upon statement of facts is an exhibit consisting of some 800 pages of excerpts from handbooks, mission statements, and other written materials prepared by many of the sectarian schools that indicated an intent to participate in the amended program for the 1995-96 school year. Numerous statements extracted from these materials, and quoted in the trial court's written decision and order, indicate that some of the eligible sectarian schools have an overtly religious mission, and that the sectarian aspects of their educational programs are intertwined with the teaching of secular subjects. The following statements are representative:

• "We believe our school exists to carry out the Savior's command to 'go and make disciples' (Matthew 28:19). Consequently, our school's primary reason for existence is to be a tool for bringing young souls to faith in Jesus...."

• "First and foremost Garden Homes Lutheran Church conducts and maintains a Christian elementary school to assist Christian parents in the training and nurturing of their children in the Word of God."

• "In keeping with the purpose of our school, our curriculum is taught in the setting of God's Word. Religion is not only taught as a subject, but our teachers have been trained to integrate God's Word across the curriculum.. .. Our curriculum offerings place Christ as the focal point for all study."

• "The message of Jesus is taught in religion classes and other curricular areas. . . . Because of the nature of a Catholic school, religion is taught daily as part of the curriculum. Catholic values are also incorporated into all other aspects of the curriculum."

• "The Bible forms the core and center upon which all instruction is based. . . . All subjects are taught by a Christian teacher in the light of God's Word, emphasizing God's love for all men through Jesus."

• "We teach all the traditional subjects, but we teach them differently — from a Christian perspective."

The amount of state aid per pupil provided to MPS for the 1995-96 school year was approximately $3667. For the 1996-97 school year, the MPS per student aid amount was approximately $4400. These sums represent an upper limit on the amount of payments per student to private schools for each pupil in the program. The materials in the record from the sectarian schools indicate that many charge tuition that is hundreds of dollars less than what the schools deem to be their actual cost of educating each student. The parties stipulated that:

The tuition charged by at least a majority of the sectarian private schools that notified the Superintendent of Public Instruction of their intent to participate in the [a]mended [program] during the 1995-96 school year is less than the school's per-pupil operating and debt service cost and is less than the per-pupil state aid provided to MPS.

The difference between the costs incurred for educating students at the sectarian private schools and the tuition charged to parents is generally made up by subsidies from the affiliated parishes and congregations.

The parties further stipulated that under the. amended program:

[T]he State does not prohibit the participating sectarian private schools from using funds received by the school for any purpose the school deems appropriate, including, among other things, the payment of salaries and expenses of employees affiliated with the school's religious mission, the purchase of literature and other materials identified with the school's religious mission, and the maintenance and construction of facilities used for religious purposes.

Prior to the injunction which suspended implementation of the amended program, some 4000 MPS pupils had applied to attend private schools under the amended program.

c. The Litigation

1. The Parties.

Plaintiffs Warner Jackson, et al., are citizens and taxpayers of the State of Wisconsin. These plaintiffs include parents and members of the clergy from diverse religious and ethnic backgrounds, many of whom have children enrolled in the MPS. They commenced an action challenging the amended program with respect to the inclusion of sectarian private schools. These plaintiffs will be referred to as the Jackson plaintiffs.

Plaintiffs Milwaukee Teachers' Education Association, et al., consist of teachers and other employees of MPS, parents of pupils enrolled in MPS or another public school system in Wisconsin, a member of the clergy, and various organizations that represent the individual plaintiffs. These plaintiffs commenced a separate action challenging the provisions of the amended program, and their action was consolidated with the Jackson plaintiffs' action. These plaintiffs will be identified as the MTEA plaintiffs.

Plaintiffs National Association for the Advancement of Colored People, et al., filed a later, separate action challenging the amended program. The NAACP plaintiffs raised some of the same challenges as the first two plaintiff groups, but brought an additional claim that the amended program also violates the equal protection provisions of the United States and Wisconsin Constitutions. Their action was consolidated with the first two actions, although further proceedings on the equal protection claim were stayed by the trial court. These plaintiffs will be identified as the NAACP plaintiffs.

Defendant John Benson is the Superintendent of Public Instruction for the State of Wisconsin. Defendant Department of Public Instruction (DPI) is the administrative agency of the State through which funding for the Milwaukee Parental Choice Program is directed, and to which are delegated various supervisory and administrative responsibilities with respect to the program. These defendants will be identified as the State defendants.

Intervening defendants Marquelle Miller, et al., are pupils, and the parents of pupils, who seek to participate in the amended program. They were granted leave to intervene and participate as defendants in the action. In addition to defending the amended program against the challenges raised in the consolidated actions, the Miller defendants claim that their rights to freely exercise their religions under the United States and Wisconsin Constitutions would be abridged if the amendments to the program are invalidated. These defendants will be identified as the Miller defendants.

Annette Polly Williams is a representative to the Wisconsin State Assembly for the Tenth District, in which numerous participants in the program and potential participants in the amended program reside. Representative Williams authored the original program and certain of the 1995 amendments at issue here. Parents for School Choice is an organization created to mobilize public support for an expansion of the program. Also included as intervenors with this group are parents of pupils who seek to participate in the amended program. These parties were granted leave to intervene as defendants and will be referred to as the PSC defendants.

Except where necessary to identify issues or arguments unique to a particular party, all plaintiffs in the consolidated actions will be referred to, collectively, as the challengers, and all defendants as the State.

2. Procedural History.

The Jackson and MTEA plaintiffs filed the two original actions in August 1995. The supreme court then granted leave to commence an original action in that court and entered a preliminary injunction staying the implementation of the amended program, specifying that the pre-1995 provisions of the original program were unaffected. Following oral argument, the supreme court announced that it was deadlocked three to three on the constitutional issues, and it dismissed the petition, effectively remanding the case to the Dane County Circuit Court for further proceedings. Following remand, the trial court partially lifted the preliminary injunction, thereby allowing all of the 1995 amendments to be implemented except participation by sectarian schools.

The parties filed cross-motions for summary judgment. The trial court denied the State's motions for summary judgment; granted the challengers' motions for summary judgment; and ordered "the State of Wisconsin ... to terminate the amended Milwaukee Parental Choice Program," but stayed its order until the close of the 1996-97 school year. Specifically, the trial court concluded that the amended program violates Article I, section 18 of the Wisconsin Constitution because its primary effect "is to benefit the religious missions of the elementary and secondary religious schools and because it compels Wisconsin taxpayers to support places of worship without their consent." The trial court also ruled that the amended program was a private or local bill that had been enacted in violation of the restrictions of Article IV, section 18 of the Wisconsin Constitution.³ The court further concluded that the amended program, insofar as it included sectarian private schools, violates the Wisconsin public purpose doctrine. Finally, the trial court rejected the claim that the expanded program violates Article X, section 3 of the Wisconsin Constitution.⁴ The trial court did not reach the First Amendment claim because it invalidated the amended program on state constitutional grounds.

The State appeals the trial court's order terminating the amended program.

ANALYSIS

We are an error correcting court. State v. Schumacher, 144 Wis. 2d 388, 407, 424 N.W.2d 672, 679 (1988). Our role is not to pass judgment on the wisdom of the amended program as an instrument of public policy aimed at improving educational opportunities for children from low income families in the City of Milwaukee. Nor is it primarily our role to develop and declare Wisconsin constitutional law regarding the matters argued by the parties in this case. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246, 255-56 (1997). Rather, our responsibility is to determine whether the trial court reached a result that is consistent with the text of the Wisconsin Constitution, and if necessary, the U.S. Constitution, and with existing precedents interpreting the provisions at issue. We conclude that the trial court reached such a result.

The parties requested that we expedite consideration of this appeal, and we agreed to do so. The parties argued the case shortly after briefing was completed, and this decision was issued within the month following oral argument. The parties submitted briefs which cumulate to more than 365 pages, not including appendices and the briefs of amici curiae. In order to honor our commitment to timely dispose of this appeal, we cannot specifically address each argument raised in the various briefs. To the extent that the challengers have raised issues or arguments not addressed in this opinion, we have concluded that they are not necessary to our disposition. To the extent that any arguments raised by the State remain unaddressed, we have concluded that those arguments do not persuade us that a different disposition is warranted.

a. Standard of Review

The order under review grants summary judgment on stipulated facts. The issue is the constitutionality of a state statute. This appeal, therefore, involves questions of law which we decide de novo. State v. Post, 197 Wis. 2d 279, 301, 541 N.W.2d 115, 121 (1995). The legislative enactment under review enjoys a presumption of constitutionality, and although the issue is one of law, the challengers are deemed to bear the burden "to prove" the statute unconstitutional "beyond a reasonable doubt." Id. (Citation omitted.)

The State argues that the present actions mount a "facial" challenge to the amended program because the challengers seek to have the 1995 amendments to § 119.23, Stats., enjoined in toto, rather than just in certain applications. Thus, the State, citing United States v. Salerno, 481 U.S. 739, 745 (1987), argues that the challengers' burden is to show unconstitutionality in all applications, otherwise the amended program "must be left in place" to the extent that it has constitutional applications. However, except for a footnote suggesting that students might constitutionally attend sectarian private schools where the state payment for a student in the amended program does not exceed the tuition charged for a non-program student, the State has not articulated a rationale that would allow us to declare, on this record, that the amended program "must be left in place" as to some applications.

The State's reliance on certain language in State ex rel. Warren v. Nusbaum (Nusbaum II), 64 Wis. 2d 314, 322-23, 219 N.W.2d 577, 582 (1974), for support of its "partial validity" argument is misplaced. The supreme court commented that constitutional infirmities under the statute there held valid "may arise" and would have "to be determined on ... individual facts." Id. But this statement follows the court's conclusion that the posture of the case before it, like this one, required it to analyze the claims made as a facial challenge to the statute:

Since this action is before this court on the pleadings and stipulation of facts, our decision is necessarily limited thereto. Under the facts we can only determine whether [the statute] is unconstitutional on its face.

Id. at 322, 219 N.W.2d at 582.

The amended program is quite specific as to the students and schools that may participate, how funding is determined and paid, and what restrictions and limitations apply. The agreed upon facts, with attachments, describe the sectarian private schools that have stated an intent to participate. The essential contours of the amended program are well established in the record, and it is the constitutionality of the program as described in this record that we must determine. Had the legislature wished to limit the amended program to certain applications it could have done so, but did not. Like the supreme court in Nusbaum II, we can only evaluate the program as enacted and as described in the stipulated record before us.

b. Article I, section 18 of the Wisconsin Constitution

We begin by analyzing whether the amended program violates the prohibition against state expenditures for the benefit of religious societies or seminaries contained in Article I, section 18 of the Wisconsin Constitution. We begin with this issue, first, because the trial court devoted a major part of its analysis to this issue in its decision and order, and the parties have done likewise in their briefs and oral arguments to this court. Second, beginning our analysis with the state constitutional issue enhances the economy of our effort. The Establishment Clause of the First Amendment allows "more flexibility of interpretation" than does Article I, § 18. State ex rel. Reynolds v. Nusbaum (Reynolds), 17 Wis. 2d 148, 165, 115 N.W.2d 761, 770 (1962). Thus, a conclusion that the program fails under Article I, § 18 will obviate a separate First Amendment analysis. See State v. Miller, 202 Wis. 2d 56, 62-66, 549 N.W.2d 235, 238-39 (1996). By the same token, a conclusion that the program passes muster under the state religious benefit clause would compel the same conclusion with respect to the Establishment Clause of the First Amendment, with little, if any, additional analysis being required.

Notwithstanding the fact that the provisions of Article I, § 18 have been deemed by our supreme court to be less flexible than their federal counterparts in the First Amendment, the State argues that we must import and apply federal Establishment Clause jurisprudence to our analysis of the Wisconsin provisions. If we do so, the State claims that we must arrive at the conclusion that the amended program violates neither constitution because its primary effect is to enhance educational opportunities for disadvantaged students, and any benefit to religion is indirect and incidental. We háve no quarrel with the proposition that we may look for guidance to analyses employed by the United States Supreme Court in Establishment Clause cases, however:

Some questions cannot be fully illuminated by the light of federal jurisprudence alone, but may require examination according to the dictates of the more expansive protections envisioned by our state constitution.

Miller, 202 Wis. 2d at 64, 549 N.W.2d at 239.

We thus begin by reviewing the text of Article I, § 18, and proceed next to our supreme court's interpretations of its provisions. Even before other authority is consulted, it is apparent that the authors of the Wisconsin Constitution intended to much more specifically curtail what the State may do in its interactions with religion than did the drafters of the Bill of Rights. In lieu of the curt directive to "make no law respecting an establishment of religion, or prohibiting the free exercise thereof' contained in the First Amendment, the state text provides as follows:

The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any. money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.

Wis. Const. art. I, § 18 (emphasis supplied).

That this language goes significantly further than the First Amendment in its prohibition of state support or benefit for religion has been settled law since State ex rel. Weiss v. District Board of School District No. Eight of Edgerton, 76 Wis. 177, 44 N.W. 967 (1890), decided some forty years after the adoption of the Wisconsin Constitution:

Wisconsin, as one of the later states admitted into the Union, having before it the experience of others, and probably in view of its heterogeneous population, . . . has, in her organic law, probably furnished a more complete bar to any preference for, or discrimination against, any religious sect, organization or society than any other state in the Union.

Id. at 207-08, 44 N.W. at 977. (The quotation is taken from a concurring opinion of Cassoday, J., to whom the court's opinion delegated the task of addressing Article I, § 18. It "thus represents the opinion of the court." Reynolds, 17 Wis. 2d at 165 n.3, 115 N.W.2d at 769.) The principle enunciated in this passage from Weiss is as valid today as it was a century ago, having been quoted with approval not only by the Reynolds court in 1962, but again last year in Miller, 202 Wis. 2d at 65, 549 N.W.2d at 239.

The Weiss court concluded that reading the King James version of the Bible to students attending a City of Edgerton public school violated the "religious benefit" clause of Article I, § 18. The court interpreted "seminary" as used in the state constitution to mean a school, and it concluded further that:

The thing that is prohibited is the drawing of any money from the treasury for the benefit of any religious school. If the stated reading of the Bible in the school as a text-book is not only, in a limited sense, worship, but also instruction, as it manifestly is, then there is no escape from the conclusion that it is religious instruction; and hence the money so drawn from the state treasury was for the benefit of a religious school, within the meaning of this clause of the constitution.

Weiss, 76 Wis. at 215, 44 N.W. at 980. (The court also held that the Bible readings violated the "compelled support" clause of Article I, § 18, which we discuss below, and the Article X, § 3 prohibition against sectarian instruction in the district schools.) See id. at 203-16, 44 N.W. at 976-80.

If reading a Bible to students in the Edgerton Public School converted it into a "religious seminary," for the benefit of which money had been improperly drawn from the state treasury, we fail to see how a different conclusion may be reached with respect to state payments received by sectarian schools under the amended program. The religious missions of many of these schools, and the expressed, purposeful infusion of religion into their curricula, make them religious seminaries within the meaning of Article I, § 18. See Reynolds, 17 Wis. 2d at 156, 115 N.W.2d at 765 (primary and secondary schools operated by religious organizations or sectarian groups, where some religious instruction is given, are "religious seminaries"). Unless the Weiss holding has been narrowed or abandoned, or unless the fact that state checks sent to sectarian schools under the amended program are made payable to the parents of participating students mandates a different result, we are compelled by Weiss to invalidate the amended program. As we discuss below, we conclude that the Article I, § 18 analysis in Weiss is still good law, and that the amended program cannot be convincingly distinguished.

Our conclusion is fortified by State ex rel. Reynolds v. Nusbaum, 17 Wis. 2d 148, 115 N.W.2d 761 (1962). The supreme court there reviewed the constitutionality of a state law "to require certain public school boards to furnish transportation to nonpublic school pupils and ... to require payment of state aids to these school districts on account of such transportation." Id. at 150, 115 N.W.2d at 762. The U.S. Supreme Court had previously sustained a similar New Jersey provision against a First Amendment challenge. See Everson v. Bd. of Educ. of Ewing, 330 U.S. 1 (1947). The supreme court, however, expressly rejected an invitation to "adopt the construction of [Article I, § 18] of our constitution which the [Everson court] placed upon" the Establishment Clause of the First Amendment. Reynolds, 17 Wis. 2d at 164, 115 N.W.2d at 769. Instead, the court, relying in part on Weiss, concluded that the provision of public funds for the transportation of students attending private, sectarian schools violated Article I, § 18. Id. at 165-66, 115 N.W.2d at 770.

Although the law reviewed in Reynolds referred only to pupils attending "nonpublic schools," the stipulated facts before the court allowed it to conclude that "the private schools which stand to benefit from the act are the parochial schools" and that "the benefit conferred is in reality one confined to those religious groups which operate parochial schools." Id. at 158, 115 N.W.2d at 766. The same can be said of the amended program under 1995 Wis. Act 27. Over 70% of the private schools eligible for the amended program are sectarian. The thirty-three nonsectarian schools eligible to participate in the amended program would have been eligible under the original program prior to the enactment of 1995 Wis. Act 27. Whatever benefit to private schools is conferred by the amendments in the Act, is "in reality one confined to those religious groups which operate" the eighty-nine sectarian schools that became eligible to participate as a result of the passage of the amended program. Id.

The public funds involved in Reynolds were not to be paid directly to sectarian schools, or even to these schools by way of restricted payments to the parents of pupils attending them. Rather, the law simply directed public school districts to provide transportation for private school students, via the "regular routes approved for the public school bus," to "the public school which they are entitled to attend." Id. at 153 n.1, 115 N.W.2d at 763 (quoting § 40.53(1), Stats., as amended by Laws of 1961, ch. 648). Nonetheless, the Reynolds court found a benefit to not only those sectarian schools that were then paying for the transportation of their students, but also to sectarian schools, generally, which stood to "gain through increased enrollment," stating that "an increase of enrollment is a benefit to these parochial schools." Id. at 156-57, 115 N.W.2d at 765 (citations omitted).

It seems clear that the sectarian schools participating in the amended program will experience increased enrollment. Except for students below grade 4, students may only participate in the amended program if they were not previously attending private schools other than under the program. Section 119.23(2)(a)2, Stats., as amended by 1995 Wis. Act 27, § 4002. The increase from 1500 to 15,000 in the number of pupils allowed to participate, with some 4000 having already applied for participation prior to the suspension of implementation of the amended program, virtually guarantees that many of the eighty-nine sectarian schools eligible to participate in the amended program will experience enrollment increases.

More significant than enrollment increases, however, is the benefit sectarian schools derive from the receipt of state funds which they may expend for any sectarian or nonsectarian educational purpose. These unrestricted payments cannot, under Reynolds, be deemed anything other than a benefit to the sectarian schools participating in the amended program. See also State ex rel. Warren v. Nusbaum (Nusbaum I), 55 Wis. 2d 316, 326, 198 N.W.2d 650, 655 (1972) (to be valid, a statute must provide that state payments to sectarian university be used only for secular education). The benefit accrues whether the amount a sectarian school receives for each student enrolled via the amended program is less than or more than the tuition charged for non-program students. In the latter case, of course, an even greater benefit accrues to the religious organization operating the school since the amount of subsidization it must provide to the school is less for a program student than for non-program students.

The State, however, argues that even if it is inescapable that "religious seminaries" are benefited by the expenditure of money drawn from the state treasury under the amended program, it must still be upheld because state and federal precedents, subsequent to Reynolds, make it clear that the program is unconstitutional only if a religious benefit is the "primary effect" of the amended program. The State cites the following passage in support of its argument:

This court has held that"... we cannot read [Article I, § 18] as being so prohibitive as not to encompass the primary-effect test. ..." The applicability of the primary-effect test is to make "[t]he crucial question . . . not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion."

Nusbaum I, 55 Wis. 2d at 333, 198 N.W.2d at 659 (quoting State ex rel. Warren v. Reuter, 44 Wis. 2d 201, 227, 170 N.W.2d 790, 802 (1969) and Tilton v. Richardson, 403 U.S. 672, 679 (1971) (footnotes omitted)). The State's argument is somewhat undermined at the outset in that, even after applying the "primary effect" test, the Nusbaum I court invalidated the enactment under review. The court acknowledged the secular purpose of a legislative act to make dental education available to Wisconsin residents. The court held the Act was unconstitutional under both the U.S. and Wisconsin Constitutions, however, because the law did not restrict the application of the per-student aid paid to Marquette University to secular purposes. Id. at 332-33, 336-37, 198 N.W.2d at 658-61.

Nonetheless, we accept the State's premise that, in reviewing the amended program under Article I, § 18, we may, and perhaps even must, consult United States Supreme Court cases applying the "primary effect" test. This test is the second of three parts of the "Lemon test":

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster "an excessive government entanglement with religion."

Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (citation and quoted source omitted); see Nusbaum II, 64 Wis. 2d at 322, 219 N.W.2d at 582.

Here, as in many Establishment Clause and religious benefit clause cases, the secular purpose of the amended program is virtually conceded. The purpose of the program is to expand educational opportunities for students from low income families in the City of Milwaukee. See Davis, 166 Wis. 2d at 530, 480 N.W.2d at 470. No party argues on this appeal that the legislature's "primary purpose" was to funnel money from the state treasury to sectarian schools in Milwaukee; but this does not prevent such a result from being deemed a "primary effect" of the amended program. Committee for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 774 (1973) (proper legislative purpose does not immunize act from further scrutiny if it has "a primary effect" to advance religion).

The Supreme Court in Nyquist invalidated three provisions of a New York law that: (1) made direct grants of money to private elementary and secondary schools for maintenance and repair of facilities; (2) partially reimbursed low income parents for tuition costs for their children attending private schools; and (3) provided tax deductions or credits to other parents for children attending private schools. Id. at 796-98. The intended New York tuition reimbursement program for low income families closely parallels the amended program here under review. The Court concluded that this part of the New York law failed the "primary effect" test, even though state funds were sent to parents instead of directly to private schools, the "great majority" of which (85%) were sectarian. Id. at 768, 783. Transmittal of the state aid via the parents was deemed only "one among many factors to be considered" and did not provide "per se immunity" to the program. Id. at 781.

The Nyquist Court declined to make what it labeled a "metaphysical judgment[ ]" as to whether "the 'primary' effect" of the tuition reimbursement program was to "subsidize religion" or to promote "legitimate secular objectives." Id. at 783 n.39 (emphasis supplied). Rather, the Court concluded that the "primary effect" test required only that a reviewing court "ascertain whether [a law found to have a 'primary' effect to promote some legitimate end] also has the direct and immediate effect of advancing religion." Id. The Court concluded that the tuition reimbursement program failed the test:

Indeed, it is precisely the function of New York's law to provide assistance to private schools, the great majority of which are sectarian. By reimbursing parents for a portion of their tuition bill, the State seeks to relieve their financial burdens sufficiently to assure that they continue to have the option to send their children to religion-oriented schools. And while the other purposes for that aid — to perpetuate a pluralistic educational environment and to protect the fiscal integrity of overburdened public schools — are certainly unexceptionable, the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions.

Id. at 783 (footnote omitted). After completing its review of each of the three facets of the New York law, the Court concluded that:

[E]ach, as written, has a "primary effect that advances religion" and offends the constitutional prohibition against laws "respecting an establishment of religion."

Id. at 798 (emphasis supplied).

Since Article I, § 18 provides less flexibility for interpretation than does the Establishment Clause, Reynolds, 17 Wis. 2d at 165, 115 N.W.2d at 770, we conclude that the "primary effect" test, as applied in Nyquist, does not undermine our conclusion that the amended program must be set aside on state constitutional grounds. Participation in the amended program is permitted to rise to 15,000 pupils, and private schools participating in the program stand to receive upwards of $4000 per student in state payments. Total state payments under the program could thus approach $60 million. If pupil attendance at sectarian schools under the program follows the percentage of private schools eligible to participate which are sectarian (over 70%), or if it mirrors the percentage of attendance at sectarian schools among private school students in the City of Milwaukee (84%), well over $40 million in state payments could be received by sectarian schools. We thus conclude that a primary effect of the amended program is the drawing of money from the state treasury for the benefit of religious schools.

The State argues, however, that federal cases after Nyquist have moved away from Nyquist's broad interpretation of the "primary effect" test, and it urges us to follow these later cases. We decline to do so for three reasons. First, a present member of the Supreme Court has described the Court's "Establishment Clause jurisprudence" as being in "hopeless disarray," and we do not disagree. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 861 (1995) (Thomas, J., concurring). Second, the cases the State would have us consult do not encompass facts nearly so close to those before us as did Nyquist. See Mueller v. Allen, 463 U.S. 388 (1983) (Minnesota tax deduction for educational costs incurred by students attending both public and non-public schools); Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481 (1986) (state vocational rehabilitation aid used by a student to pursue religious vocation at a Christian college); Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993) (sign language interpreter provided under Individuals with Disabilities Education Act to deaf student attending sectarian high school); and Rosenberger, 515 U.S. 819 (1995) (student fees at public university used to pay for printing of religiously oriented student newspaper).

Third, if we are to look at federal precedents as an aid in interpreting our state constitution, we must consult those which consider facts close at hand to the controversy before us. Nyquist is such a case. Even if we were to speculate that a current majority of the U.S. Supreme Court would not endorse Nyquist's treatment of the primary effect test, the case remains precedent unless or until it is overruled by the Court. See Agostini v. Felton, 117 S. Ct. 1997, 2017 (1997) (if U.S. Supreme Court precedent has application in a case but" 'appears to rest on reasons rejected in some other line of decisions,'" lower court should follow controlling case) (quoted source omitted). (In Agostini, decided while the parties were briefing this appeal, the Supreme Court overruled its prior decisions striking down laws in New York and Michigan that permitted public school teachers to go into private sectarian schools to provide "supplemental, remedial instruction to disadvantaged children on a neutral basis." Id. at 2016. The Agostini majority, however, left in place a prior ruling that a Michigan program, under which the State utilized and compensated teachers employed by sectarian schools to provide certain supplemental classes in those schools, violated the Establishment Clause. Id. at 2016-17; see also 2019 n.1 (Souter, J., dissenting); and see School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 386-87 (1985) (finding "a substantial risk that, overtly or subtly, the religious message [teachers employed by sectarian schools] are expected to convey during the regular schoolday will infuse the supposedly secular classes they teach after school.").)

Finally, we note that the trial court concluded that the amended program violated not only the religious benefit clause of Article I, § 18, but the "compelled support" clause⁵ as well. The State is critical of the trial court's analysis because, according to the State, "it turns every violation of the religious benefits clause into a violation of the compelled support clause and thereby violates the fundamental principle of constitutional interpretation that related provisions in a document should be interpreted to avoid redundancy." We disagree. When interpreting a provision in a statute or constitution, it is proper, and perhaps even mandatory, that a court consider the language of the entire section at issue, and even that of related sections. See State v. Barnes, 127 Wis. 2d 34, 37, 377 N.W.2d 624, 625 (1985).

Even though "only a small fraction of the school hours [were] devoted" to Bible reading in the Edgerton Public School, the Weiss court concluded that the practice rendered the schoolroom "a place of worship" within the meaning of Article I, § 18. Weiss, 76 Wis. at 213, 44 N.W. at 979. Since "tax-payers of the district, were compelled to aid in the . .. support of the school," the court was "very certain" that use of the school as a place of worship was "expressly forbidden by the constitution of the state." Id. at 213-14, 44 N.W. at 279. We conclude that the materials in the record describing the missions and methods of many of the sectarian schools eligible to participate in the amended program, show that some of them are at least as worthy of being deemed "places of worship" as was the Edgerton Public School in 1890. (E.g., "The Bible forms the core and center upon which all instruction is based. Each day is opened with a devotion followed by instruction in Christian doctrine and Bible study.") And, as we have noted, the amended program creates the potential for some $40 million or more in revenues generated from Wisconsin taxpayers to flow to these sectarian schools.

We do not find it necessary to find in the compelled support clause a separate and distinct ground for the result we reach. Our reading of that clause, however, consistent with its interpretation in Weiss, lends additional support to our conclusion that the amended program violates Article I, section 18 of the Wisconsin Constitution because it directs the payment of money from the state treasury for the benefit of religious seminaries.

Our conclusion that the amended program must be invalidated derives chiefly from the deletion by 1995 Wis. Act 27, § 4002, of the word "nonsectarian" from § 119.23(2)(a), Stats. We conclude, however, that all aspects of the amended program, 1995 Wis. Act 27, §§ 4002-4009, must be set aside. Except for a footnote in the State defendants' reply brief, no party has asked us to sever any part or parts of the amended program from its remaining provisions. We have not, therefore, pursued a separate treatment of the various amendments to the program made in the Act. See Waushara County v. Graf, 166 Wis. 2d 442, 451, 480 N.W.2d 16, 19 (1992) (appellate court ordinarily will not consider or decide issues not specifically raised on appeal). Had the legislature been aware that the inclusion of sectarian schools would not withstand constitutional review, it may or may not have elected to authorize a ten-fold increase in pupil participation in the program, change the computation and administration of payments to participating schools, or eliminate the percentage enrollment caps and certain of the monitoring and evaluation requirements. See Burlington Northern, Inc. v. City of Superior, 131 Wis. 2d 564, 580-81, 388 N.W.2d 916, 924 (1986) (invalid provisions may not be severed when it appears legislature intended provisions to be effective as an entirety and would not have enacted valid part by itself). Should the legislature desire to amend the program to allow additional pupils to attend nonsectarian private schools, or to amend the program in other regards, it should be allowed to do so beginning with a clean slate, that being the original program as upheld in Davis v. Grover, 166 Wis. 2d 501, 480 N.W.2d 460 (1992).

c. The Free Exercise Claim (Miller Defendants)

The Miller defendants claim that the amended program cannot be invalidated because the "religious school access provided by the [amended program] is mandated by" the Free Exercise Clause of the First Amendment. They argue that the original program violated their right to freely exercise their religion because a government created benefit, public funding for attendance at private schools, was conferred in a "discriminatory manner" by excluding attendance at private sectarian schools. We disagree. We fail to see why the original program represents any more of a curtailment by the State of the Miller defendants' free exercise rights than would be the case had the original program not been enacted. See Brusca v. Missouri ex rel. State Bd. of Educ., 332 F. Supp. 275, 279 (E.D. Mo. 1971), aff'd, 405 U.S. 1050 (1972) (state provisions to fund public schools and deny funding for sectarian schools do not violate Free Exercise Clause).

As the Jackson plaintiffs note in their brief, many state and federal programs are subject to prohibitions on the use of public funds for religious purposes. These types of restrictions serve the same function as the "nonsectarian" limitation in the original program. While we may have sympathy, as did the Nyquist court, "for the burdens experienced by those who must pay public school taxes at the same time that they support other schools because of the constraints of 'conscience,' " Nyquist, 413 U.S. at 788-89, we cannot conclude that the Free Exercise Clause is violated by a limitation designed to ensure compliance with the constitutional constraint that the State not provide a benefit to religious institutions.

d. Disposition of Remaining Claims

We have concluded that the trial court did not err in declaring that the amended program violates Article I, section 18 of the Wisconsin Constitution. Accordingly, we, like the trial court, find it unnecessary to address the challengers' claim that the amended program also violates the Establishment Clause of the First Amendment. By the same token, we decline to address the NAACP plaintiffs' separate claim that the amended program violates the equal protection clauses of the U.S. and Wisconsin Constitutions. The trial court stayed the equal protection claim after it ordered the consolidation of the NAACP action with those of the Jackson and MTEA plaintiffs. The NAACP plaintiffs have argued the claim on this appeal as an alternative ground upon which the amended program might be invalidated. Our disposition makes it unnecessary to address the equal protection arguments. We presume that the NAACP plaintiffs will be permitted to carry forward their arguments should this case engender further review.

We also decline to address the Article IV, § 18 (private or local bill) claim or the claim that the amended program violates Wisconsin's public purpose doctrine, even though the trial court based its invalidation of the amended program in part on these claims. Neither do we find it necessary to review the trial court's conclusion that the amended program survives an Article X, § 3 challenge ("district schools" to be uniform and free of secular instruction). Each of these claims was made regarding the original program and all were rejected in Davis v. Grover, 166 Wis. 2d 501, 480 N.W.2d 460 (1992). The challengers argue here that the significant expansion in the numbers of pupils and private schools allowed to participate in the amended program; the concomitant increase in state dollars committed to the program; and the elimination of the private school percentage enrollment caps and of certain monitoring requirements, combine to call into question whether the amended program can continue to withstand the challenges brought in Davis.

We defer consideration of whether the amendments to the program are of such a nature and magnitude that the supreme court's conclusions in Davis are no longer applicable to the program. Such a review, should it become necessary, is best conducted by the same court that reviewed and sustained the original program. For us to do so here, given our disposition under Article I, § 18, would amount to little more than the rendering of an advisory opinion.

e. The Dissent

The procedural history of this case demonstrates that there can well be fundamental and good faith disagreements among judges when called upon to assess the constitutionality of the amended program. Many, if not most, of the precedents upon which we rely, and others to which we have been referred by the parties, are split decisions of our supreme court and of the U.S. Supreme Court. Chief Justice Rehnquist has noted the difficulty which infuses Religion Clause jurisprudence as follows:

Differences of opinion are undoubtedly to be expected when the Court turns to the task of interpreting the meaning of the Religion Clauses of the First Amendment, since our previous cases arising under these clauses, as the Court notes, "have presented some of the most perplexing questions to come before this Court."

Nyquist, 413 U.S. at 805 (Rehnquist, J., dissenting) (quoting Justice Powell's majority opinion at 760).

There are three principal reasons why we cannot accept the dissent's result and analysis. First, the dissent's analysis is largely based on the premise that if state payments received by a sectarian school under the amended program are limited to a school's incremental costs relating only to the program students enrolled at the school (and hence, in the dissent's view, the school is not being subsidized for costs it would otherwise have incurred), then the amended program violates neither the federal or state constitutions. We cannot agree with either the premise itself or the reading of the provisions of 1995 Wis. Act 27 which it requires as a condition precedent.

The dissent finds support for its premise in State ex rel. Atwood v. Johnson, 170 Wis. 251, 263-64, 176 N.W. 224, 228 (1919), which dealt principally with a public purpose doctrine challenge to the Educational Bonus Law, an act which provided educational assistance to returning World War I veterans. The dissent acknowledges that Atwood's treatment of the religious benefit issue is not "lengthy." Dissent at 70. In fact, the entire treatment of the religious benefit issue in the case is confined to the four conclusory sentences quoted in the dissent, a passage devoid of any citation to or analysis of the language of Article I, § 18. We agree with counsel for one of the plaintiff groups, who at oral argument commented that labeling Atwood as "obscure" would overstate its prominence in Article I, § 18 jurisprudence.

Moreover, the proposition that the prohibitions of Article I, § 18 are satisfied if a religious institution is simply reimbursed for costs it would not otherwise incur, with no restrictions as to the purposes of the costs to which the reimbursement is applied, is contrary to more recent Wisconsin precedents which more rigorously analyze the religious benefit issue. The Reynolds court concluded that increased enrollment at sectarian schools, an effect it found to flow from public funding for transportation to the schools, by itself, constituted a benefit even if the costs being subsidized had not been previously borne by them. Reynolds, 17 Wis. 2d at 156-57, 115 N.W.2d at 765. And, in Nusbaum I, the supreme court concluded that Article I, § 18 would not be violated by "a proper statute" providing state payments to Marquette University to offset dental education costs for state residents, Nusbaum I, 55 Wis. 2d at 333-34, 198 N.W.2d at 659, but that such a statute must restrict payments to that end and not simply allow the payments to offset "operating costs" of the university. Id. at 326, 198 N.W.2d at 655.

The supreme court expressed similar sentiments in Nusbaum II, 64 Wis. 2d at 326, 219 N.W.2d at 584, where it upheld the purchase of special education services from religiously affiliated providers because the act in question did not provide "aid to the religious as opposed to the secular activities of the private institutions." Specifically, the court noted:

[T]he legislature has gone to great lengths to insure that the inculcation of religious tenets shall not take place. [A provision in the act] provides that, upon approval by the state superintendent, the private special educational service must be one: "Whose governing board, faculty, student body and teachings are not chosen or determined by any religious organization or for any sectarian purpose."

Id. at 325, 219 N.W.2d at 583. By contrast, not only are the provisions of 1995 Wis. Act 27 devoid of any similar limitations, but the State has stipulated that, under the amended program:

[T]he State does not prohibit the participating sectarian private schools from using funds received by the school for any purpose the school deems appropriate, including, among other things, the payment of salaries and expenses of employees affiliated with the school's religious mission, the purchase of literature and other materials identified with the school's religious mission, and the maintenance and construction of facilities used for religious purposes.

Thus, we disagree with the dissent's conclusion that if the amended provisions are construed to limit state payments to sectarian schools to the incremental costs incurred by the schools in admitting program students, the amended program therefore satisfies Article I, § 18. Even under such a construction, the state dollars received by a sectarian school would underwrite the entire "educational programming" for participating students, without restrictions limiting the application of the funds to secular services. We also cannot accept the dissent's view that the religious activity "opt-out" provision of § 119.23(7)(c), Stats., cures the constitutional infirmities of the amended program. Dissent at 80. That some parents of students participating in the amended program may have their children exempted from religious activities at sectarian schools does not alter the fact that money drawn from the state treasury would underwrite precisely those activities for other program students.

Equally untenable, in our estimation, is the dissent's adoption of a narrowing construction of the provisions of 1995 Wis. Act 27 in order to preserve its constitutionality. The dissent would have us read the amended program provisions to limit state payments to only "the cost for educational programming related solely to the Parental Choice students." Dissent at 62-64. The statutory language in question provides that the state funding per student must not exceed "an amount equal to the private school’s operating and debt service cost per pupil that is related to educational programming, as determined by [DPI]." Section 119.23(4), Stats., as amended by 1995 Wis. Act 27, § 4006m (emphasis supplied). The language of the Act cannot sustain the dissent's proposed construction. A limitation on the per-pupil cost reimbursement to those costs associated solely with the admission of program students is not to be found in § 4006m, nor in any other provision of the amended program.

None of the parties to this appeal have proposed the construction urged by the dissent, nor have they argued that the reimbursable cost provision applicable to the amended program is ambiguous, as the dissent concludes. In fact, the parties demonstrated a shared understanding of the reimbursable cost provision when they stipulated that under the amended program, "tuition charged by at least a majority of the sectarian private schools that notified the [State Superintendent] of their intent to participate in the amended MPCP during the 1995-96 school year is less than the schools' per-pupil operating and debt service cost." While this court may do so, we have no duty to consider any issues other than those presented to us, and we create " 'real problems [by] addressing unmade claims and developing arguments for one side to a dispute.'" Swatek v. County of Dane, 192 Wis. 2d 47, 52 n.1, 531 N.W.2d 45, 47 (1995) (quoted source omitted).

Moreover, we are not free to judicially re-write a plainly worded statute in an effort to preserve its constitutionality. State v. Hall, 207 Wis. 2d 54, 82-84, 557 N.W.2d 778, 789-90 (1997). The dissent does not analyze the per-pupil cost reimbursement provision of the amended program in light of its scope, legislative history, context, subject matter and purpose, which is our customary approach when we deem a statute to be ambiguous. See Pabst Brewing Co. v. DOR, 130 Wis. 2d 291, 294-95, 387 N.W.2d 121, 122 (Ct. App. 1986). Rather, the dissent simply declares that the provision "describes only the costs participating schools incur due to educating the Parental Choice students." Dissent at 64. We conclude that we cannot adopt the construction of the Act urged by the dissent, because to do so would require that we "go beyond the province of legitimate construction to save it, and where the meaning is plain, words cannot be read into it or out of it for the purpose of saving" the amended program. Hall, 207 Wis. 2d at 82, 557 N.W.2d at 789 (citations omitted).

Our second major difference with the dissent's approach is that, by beginning with an analysis of federal Establishment Clause jurisprudence and resting its conclusions regarding Article I, § 18 on that analysis, the dissent obliterates the separate identity and vitality of the religion clauses of the Wisconsin Constitution. We fear that the dissent's approach repeats this court's error in State v. Miller, 196 Wis. 2d 238, 538 N.W.2d 573 (Ct. App. 1995), of "overreading" King v. Village of Waunakee, 185 Wis. 2d 25, 517 N.W.2d 671 (1994). See Miller, 202 Wis. 2d at 62-66, 549 N.W.2d at 238-39. We recognize that Miller involved a "freedom of conscience" claim, but the supreme court did not limit its disavowal of this court's conclusion that Article I, § 18 must be construed in the same manner as the First Amendment, to the conscience clauses of § 18. The supreme court's express endorsement of the principles in Weiss and Reynolds, moreover, demonstrates once more that our supreme court deems the provisions of Article I, § 18, including the religious benefit clause, to be separate and distinct from, and less flexible than, their federal counterparts. See Miller, 202 Wis. 2d at 65-66, 549 N.W.2d at 239. Thus, unlike the dissent, but as we were instructed by the supreme court in Miller, we rest our conclusions on the language of Article I, section 18 of the Wisconsin Constitution.

Finally, we believe that the dissent misinterprets certain aspects of our analysis. The dissent asserts that we have made a factual finding, based on certain excerpts from the stipulated record, that religiously affiliated schools intending to participate in the program will purposefully infuse religion throughout their educational programs. Dissent at 77. The dissent goes on to cite excerpts from the record tending to show that some of the eligible sectarian schools do not necessarily do so, and that they provide excellent education to their students in secular subjects.

We have two responses to these assertions. First, we did not state, or even imply, that the overtly religious purposes and methods espoused by certain of the eligible sectarian schools were incompatible with excellence in the secular aspects of their programs. Second, and more importantly, the constitutional concern is that nothing in the language of the amended program restricts participating schools from using state funds to support the religious aspects of the curricula at sectarian schools, regardless of whether those aspects are a major or minor part of the educational programming.

On the record presented, it is clear that within the array of schools intending to participate in the amended program, there are those which emphasize their religious mission and methods. While it may be difficult to conceive of a non-secular approach to teaching mathematics, it is not so difficult to envision that history, social studies, or even certain of the natural sciences could be taught from a sectarian perspective. Just as we may not presume that all students participating in the amended program will receive pervasively religious instruction in all areas, neither may we conclude that participation will be limited to those schools whose approach is "less religious." The problem is that nothing in the language of the amended program ensures that state funding will flow only to the latter and not the former, even if statutory language could be devised that would not run afoul of "entanglement" concerns.⁶

Finally, we disagree with the dissent's characterization of our application of the compelled support clause. We do not rely on that clause as a separate and distinct ground for our holding. Rather, as we stated, we conclude that it is not only appropriate, but perhaps mandatory that we review all of the language of Article I, § 18 to aid us in our interpretation of the religious benefit clause. The compelled support clause, as it was interpreted in Weiss, supports our conclusion that the amended program violates the prohibition of § 18, that money not be drawn from the treasury to benefit a religious institution. (We did not, as the dissent implies, conclude that the compulsory attendance prohibition was violated, but rather the compelled taxpayer support aspect of the clause.)

CONCLUSION

For the reasons discussed above, we affirm the trial court's order declaring 1995 Wis. Act 27, §§ 4002-4009, to be in violation of Article I, section 18 of the Wisconsin Constitution.

By the Court.—Order affirmed.

1 Article I, section 18 of the Wisconsin Constitution provides in part: "[N]or shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries."

2 School district "membership" is defined in § 121.004(5), Stats.

3 "No private or local bill- which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." Wis. Const. art. IV, § 18.

4 "The legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable, ... and no sectarian instruction shall be allowed therein ...." Wis. Const. art. X, § 3.

5 "[N]or shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent...." Wis. Const. art. I, § 18.

6 We did not reach the third, or "entanglement," prong of the Lemon test because of our conclusion that the guidance provided under the Establishment Clause analysis in Nyquist shows that the amended program fails the second, or "primary benefit" test. If this case turns on "how much religion" infuses the educational programming at participating sectarian schools, as the dissent implies, then the third of the Lemon tests would be implicated. See State ex rel. Warren v. Nusbaum (Nusbaum I), 55 Wis. 2d 316, 329, 198 N.W.2d 650, 657 (1972) (" '[Elntanglement' ... is not a matter of... accounting reports or budgetary controls, but rather surveillance to make sure that religion is not intermixed with the purpose served by state aid.") (footnote omitted).