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Charlie Sykes: Sykes Writes

Is School Choice One Vote From Being Overturned?

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By George Mitchell


In 1998, the Wisconsin Supreme Court upheld the constitutionality of the Milwaukee Parental Choice Program by a 4-2 vote.
The issue then was whether to uphold a lower court ruling against the program. A 3-3 vote would have left that ruling in place. Milwaukee’s school choice program would have died. A single vote determined the program’s fate.
The 1998 decision settled the issue in Wisconsin, right? And the issue was resolved at the highest level when the U.S. Supreme Court upheld Cleveland’s program in 2002, right?
The U.S. Supreme Court decision does not prevent a state court from deciding that its constitution — apart from the U.S. Constitution —prohibits a school choice program. That happened in Florida after the U.S. Supreme Court upheld the Cleveland program. An existing program was overturned.
With just four votes, the Wisconsin Supreme Court could undo the 1998 decision. Five years ago Supreme Court candidate Linda Clifford suggested that the Court take a new look at “school choice and the voucher program.” Clifford said this in response to a question from a Journal Sentinelreporter. Clifford lost that election to Justice Annette Ziegler.
Next April, Wisconsin voters will decide whether to give Justice Pat Roggensack a new ten-year term. Though first elected to the Supreme Court in 2003, Justice Roggensack had a central role in the 1998 case upholding Milwaukee’s program. The Wisconsin court in 1998 relied heavily on a dissent written by Roggensack as a member of the Court of Appeals. Much of her legal reasoning later was incorporated in the 2002 U.S. Supreme Court ruling.
Apart from her views on the constitutionality of school choice, Justice Roggensack is widely respected as a leading legal scholar on the current Supreme Court. While she often votes with the Court’s three conservative members, she is credited with staying above the fray that has fractured the court.
Recent news reports raise the prospect that opponents of Governor Scott Walker will field a candidate to run against Justice Roggensack. It is a gross understatement to say that her defeat in 2013 would be a serious setback, both for school choice and more broadly for sound jurisprudence.

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