Teachers unions are belittling the importance of the Supreme Court's decision not to review a lower court decision upholding the Milwaukee school choice program, says the attorney who successfully argued the case before the Wisconsin Supreme Court.

The teachers and the American Civil Liberties Union (ACLU) are trying to forestall similar reforms around the country by predicting the U.S. Supreme Court will declare them unconstitutional the next time around. Currently, low-income Milwaukee students are the only in the nation who are guaranteed the opportunity to use public funds for education vouchers to attend public, private or religious schools.

However, 50 years of Supreme Court jurisprudence refutes the contention that school-choice plans violate the Establishment Clause's separation of church and state. As long as the benefits are available to religious and nonreligious schools alike, and as long as the funds aren't paid directly to the religious schools, the court has approved them.

• In 1947, in Everson v. Board of Education, the court held that a state may reimburse parents for the cost of transporting their children to and from religious schools.

• In 1983, in Mueller v. Allen, the court approved a Minnesota law that permitted parents to take a tax deduction for expenses related to private sectarian schools.

• In 1986 in Witters v. Washington Department of Services, the court unanimously upheld a state grant to a blind student to attend a theological seminary.

• In 1993, in Zobrest v. Catalina Foothills School District, the court said Arizona should provide a sign-language interpreter to a deaf student attending a Catholic high school, just as it did for nonsectarian schools.

• In 1995, in Rosenberger v. Rector and Visitors of the Univ. of Virginia, the court ruled a state university couldn't deny a student organization's religious newspaper funding.

• And most recently, in 1997, in Agostini v. Felton, the court upheld a federally funded program to provide remedial instruction by public school teachers at religious schools.

Thus there was no need for the court to review the Wisconsin case: it has spoken.

Source: Jay P. Lefkowitz, "Supreme Court on School Choice: 50 Years of Precedents," Wall Street Journal, November 23, 1998.