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SCHOOL CHOICE WARS

11:00 PM, Mar 30, 1997 • By CRAIG GILBERT
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THE FUTURE OF THE NATION'S chief experiment in private-school vouchers is about to be decided in a sleepy spring election where the great mass of voters will simply tune out and stay home. Welcome to the saga of school choice in Milwaukee -- and the funkier side of federalism in the '90s.


Wisconsin goes to the polls April 1 to fill a seat on its highest court and pick its chief education bureaucrat. These are not contests that top the 10 o'clock news. But they've become urgent matters to partisans in the choice wars.


Wisconsin's school choice program was the first of its kind in the country. Since 1990, taxpayer supported tuitions have been strictly confined to fewer than 2,000 poor Milwaukee schoolchildren attending nonsectarian schools.


Two years ago, the program was dramatically redefined to allow 15,000 kids to participate and to include religious schools, provoking a constitutional challenge that has prevented the expansion from taking effect. The Wisconsin Supreme Court has already deadlocked in one choice ruling, returning the case to a trial judge who struck the program down. At some point, possibly this year, the court will get it back.


But before it does, next week's race between a conservative sitting justice and a liberal lawyer will decide the balance of power on the seven-member panel. A pro-voucher court could open the door to an unprecedented and hugely controversial education experiment. An anti-voucher court could shelve religious-school vouchers until the Milwaukee case (or choice cases in Vermont or Ohio) reaches the U.S. Supreme Court.


In this era of state-based "laboratories" of reform, the track that vouchers have taken in Wisconsin is one example of how the process can play out. In the past few years, the school-choice frontier has shifted from one decision-making venue to another: from politics and lawmaking (the plan was launched by the governor and passed by the legislature), to the courts (where nonsectarian-private-school vouchers passed muster but religious-school vouchers haven't), to the most peculiar venue of all: judicial elections. While they will have growing importance in the choice wars, these are elections in which almost nobody votes.


Elected judges have at least two things in common with elected education officials: They can have a big impact on people's lives, and they're anonymous.


Next week's election will be held two days after Easter. Less than a quarter of the electorate is expected to participate. One reason is that spring campaigns are covered lightly in the media. A bigger reason is the faceless quality of the offices being contested.


The education race pits incumbent state superintendent of schools John Benson against the conservative schoolteacher he defeated four years ago, Linda Cross. Benson opposes vouchers, Cross supports them, but the issue is largely beyond their control.


Of greater consequence is the court race, between incumbent justice and former GOP lawmaker Jon Wilcox and labor and civil rights attorney Walt Kelly.


The stealth quality of nonpartisan spring elections usually favors the incumbent: No Supreme Court justice has lost here in 30 years. But low turnouts also boost the influence of interest groups, and in these contests the battle lines couldn't be clearer. In each race, one candidate is backed by the teachers' union, the other by business groups. Advantage teachers' union: It is huge, sophisticated, and organized.


Wilcox's position on religious-school vouchers is straightforward. In the court's earlier 3-3 ruling, he determined that the voucher plan did not violate the state or federal constitution.


The state's rules of judicial conduct have kept Kelly from stating how he'd rule on choice. But it is widely assumed he's opposed. He has criticized the way Wilcox voted on the issue, and he is a past board member of the ACLU, one of the groups that challenged the law. The teachers' union that is backing him is also fighting vouchers. In its endorsement, the union declared, "We must have a justice who supports the constitutional separation of church and state and who recognizes the dangers in sending tax dollars to religious schools."


All the interested parties know where the two contestants are on vouchers and what's at stake in the election. Whether most voters know is another question.


"Most people who vote on April 1 will have no idea where either of them stands on school choice," says Kelly's campaign adviser, Bill Christofferson. "Even if they did, it wouldn't matter. Everything I've seen suggests it's a [public-opinion] wash."