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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-Petitioners,
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, Intervenors-Defendants-Appellants,
PARENTS FOR SCHOOL CHOICE, Pilar Gonzalez, Dinah Cooley, Julie Vogel, Kate Helsper, Blong Yang, Gail Crockett, Yolanda Lassiter and Jeanine Knox, Intervenors-Defendants-Appellants-Petitioners.
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. Mincberg, 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-Petitioners,
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, Intervenors-Defendants-Appellants,
PARENTS FOR SCHOOL CHOICE, Pilar Gonzalez, Dinah Cooley, Julie Vogel, Kate Helsper, Blong Yang, Gail Crockett, Yolanda Lassiter and Jeanine Knox, Intervenors-Defendants-Appellants-Petitioners.
NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, Felmers O. Chaney, Lois Parker, on behalf of herself and her minor child, Rashaan Hobbs, Derrick D. Scott, on behalf of himself and his minor children, Deresia C.A. Scott and Desmond L.J. Scott, Constance J. Cherry, on behalf of herself and her minor children, Monique J. Branch, Monica S. Branch, and William A. Branch, Plaintiffs-Respondents,
v.
John T. BENSON, Superintendent of Public Instruction of Wisconsin, in his official capacity, Defendant-Appellant.
Supreme Court of Wisconsin
*841 For the defendants-appellants-petitioners, John T. Benson, et al., there were briefs by Edward S. Marion and Murphy & Desmond, S.C., Madison and Kenneth W. Starr, Jay P. Lefkowitz, Theodore W. Ullyot and Kirkland & Ellis, Washington, D.C., and oral argument by Jay P. Lefkowitz.
*842 For the intervenors-defendants-appellants-petitioners, parents for school choice, et al., there were briefs by Steve P. Hurley and Hurley, Burish & Milliken, S.C., Madison; William H. Mellor, III, Clint Bolick, Nicole S. Garnett and Institute for Justice, Washington, D,C, and Michael D. Dean, Waukesha and oral argument by Clint Bolick.
For the intervenors-defendants-appellants, Marquelle Miller, et al., there were briefs by Kevin Potter and Brennan Steil, Madison and Richard P. Hutchison and Landmark Legal Foundation, Kansas City, MO and oral argument by Richard P. Hutchison.
For the plaintiffs-respondents, Warner Jackson, et al., there was a brief by Jeffrey J. Kassel, Melanie E. Cohen and LaFollette & Sinykin, Madison; Peter M. Koneazny and American Civil Liberties Union of Wisconsin Foundation, Inc., Milwaukee; Steven R. Shapiro and American Civil Liberties Union Foundation, New York, NY and Steven K. Green and Americans United for Separation of Church & State, Washington, D.C., and oral argument by Jeffrey J. Kassel.
For the plaintiffs-respondents, there was a brief by Robert H. Chanin, John M. West and Bredhoff & Kaiser, P.L.L.C., Washington, D.C.; Richard Perry, Richard Saks and Perry, Lerner & Quindel, Milwaukee; Bruce Meredith, Chris Galinat and Wisconsin Education Association, Madison; Elliot M. Mincberg, Judith Schaeffer, Washington, D.C. and Timothy Hawks and Schneidman, Myers, Dowling & Blumenfield, Milwaukee and oral argument by Robert H. Chanin.
For the plaintiffs-respondents, NAACP, et al., there was a brief by William H. Lynch and Law Offices of William H. Lynch, Milwaukee and James H. Hall, *843 Jr., and Hall, Patterson & Charne, Milwaukee and oral argument by James H. Hall, Jr.
Amicus curiae was filed by K.Scott Wagner and Hale & Lein, S.C., Milwaukee and James C. Geoly, Kevin R. Gustafson and Burke, Warren, MacKay & Serritella, P.C., Chicago, IL for the Center for Education Reform, American Legislative Exchange, CEO America, CEO Central Florida, CEO Connecticut, Putting Children First, James Madison Institute for Public Policy Studies, Jewish Policy Center, "I Have a Dream" Foundation (Washington, D.C. Chapter), Institute for Public Affairs, Liberty Counsel, Maine School Choice Coalition, Pennsylvania Manufacturers Association, Reach Alliance, Arkansas Policy Foundation, North Carolina Education Reform Foundation, Texas Justice Foundation, Minnesota Business Partnership, Minnesotans for School Choice, Toussaint Institute, South Carolina Policy Counsel, and United New Yorkers for Choice in Education.
Amicus curiae was filed by Ralph I. Thomas, Madison; Steven T. McFarland, Kimberlee W. Colby and Christian Legal Society, Annandale, VA and of counsel, Thomas C. Berg and Cumberland Law School, Birmingham, AL for The Christian Legal Society, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Lutheran Church-Missouri Synod and the National Association of Evangelicals.
Amicus curiae was filed by David R. Riemer, Milwaukee for Howard L. Fuller, John O. Norquist, Steven M. Foti, Alberta Darling, Margaret A. Farrow, Joseph Leean, John S. Gardner, Warren D. Braun, Bruce R. Thompson, Jeanette Mitchell and David Lucey.
Amicus curiae was filed by Daniel Kelly and McLario, Helm & Bertling, S.C., Menomonee Falls for the Family Research Institute, Christian Defense *844 Fund, Center for Public Justice, Family Research Council, Toward Tradition, Liberty Counsel and Focus on the Family.
Amicus curiae was filed by Bradden C. Backer and Godfrey & Kahn, S.C., Milwaukee and Robert L. Gordon and Weiss, Berzowski, Brady & Donahue, Milwaukee for The Milwaukee Jewish Council for Community Relations and The Wisconsin Jewish Conference.
Amicus curiae was filed by Marc D. Stern, Lois C. Waldmani and American Jewish Congress, New York, NY for the American Jewish Congress.
¶ 1. DONALD W. STEINMETZ, J.
This case raises a number of issues for review:
(1) Does the amended Milwaukee Parental Choice Program (amended MPCP) violate the Establishment Clause of the First Amendment to the United States Constitution? Neither the court of appeals nor the circuit court reached this issue. We conclude that it does not.
(2) Does the amended MPCP violate the religious establishment provisions of Wisconsin Constitution art. I, § 18? In a divided opinion, the court of appeals held that it does. We conclude that it does not.
(3) Is the amended MPCP a private or local bill enacted in violation of the procedural requirements mandated by Wis. Const. art. IV, § 18? The court of appeals did not reach this question, and the circuit court held it is. We conclude that it is not.
(4) Does the amended MPCP violate the uniformity provision of Wis. Const. art. X, § 3? The court of appeals did not reach this issue, and the circuit court *845 concluded that the amended MPCP does not violate the uniformity clause. We also conclude that it does not.
(5) Does the amended MPCP violate Wisconsin's public purpose doctrine, which requires that public funds be spent only for public purposes? The court of appeals did not reach this issue, and the circuit court concluded that the amended MPCP does violate the public purpose doctrine. We conclude that it does not.
(6) Should children who were eligible for the amended MPCP when this court's injunction issued on August 25, 1995, and who subsequently enrolled in private schools, be eligible for the program if the injunction is lifted? Neither court below addressed this issue. We conclude that they 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. Higginbotham, Judge, granting the Respondents' motion for summary judgment. The majority of the court of appeals concluded that the Milwaukee Parental Choice Program, Wis. Stat. § 119.23, as amended by 1995 Wis. Act 27, §§ 4002-4009 (amended MPCP), was invalid under Article I, § 18 of the Wisconsin Constitution because it directs payments of money from the state treasury for the benefit of religious seminaries. The majority of the court of appeals declined to decide whether the amended MPCP violates the Establishment Clause of the First Amendment or other provisions of the Wisconsin Constitution. In dissent, Judge Roggensack concluded that the amended MPCP did not violate either the federal or state constitution. The State appealed from the decision of the court of appeals. We granted the State's petition for review and *846 now reverse the decision of the court of appeals. We also conclude that the amended MPCP does not violate the Establishment Clause or the Wisconsin Constitution.
¶ 3. We are once again asked to review the constitutionality of the Milwaukee Parental Choice Program provided in Wis. Stat. § 119.23 (1995-96).[1] The Wisconsin legislature enacted the original Milwaukee Parental Choice Program (original MPCP) in 1989. See 1989 Wis. Act 336. As amended in 1993, the original MPCP permitted up to 1.5 percent of the student membership of the Milwaukee Public Schools (MPS) to attend at no cost to the student any private nonsectarian school located in the City of Milwaukee, subject to certain eligibility requirements.
¶ 4. Under the original MPCP, the legislature limited the students eligible for participation in the original program. To be eligible for the original MPCP, a student (1) had to be a student in kindergarten through twelfth grade; (2) had to be from a family whose income did not exceed 1.75 times the federal poverty level; and (3) had to be either enrolled in a public school in Milwaukee, attending a private school under this program, or not enrolled in school during the previous year. See Wis. Stat. § 119.23(2)(a)1-2 (1993-94).
¶ 5. The legislature also placed a variety of qualification and reporting requirements on private schools choosing to participate in the original MPCP. To be eligible to participate in the original MPCP, a private school had to comply with the anti-discrimination provisions *847 imposed by 42 U.S.C. § 2000d[2] and all health and safety laws or codes that apply to Wisconsin public schools. See id. at § 119.23(2)(a)4-5. The school additionally had to meet on an annual basis defined performance criteria and had to submit to the State certain financial and performance audits. See id. at § 119.23(7), (9).
¶ 6. Under the original MPCP, the State Superintendent of Public Instruction was required to perform a number of supervisory and reporting tasks. The legislature required the State Superintendent to submit an annual report regarding student achievement, attendance, discipline, and parental involvement for students in the program compared to students enrolled in MPS in general. See id. at § 119.23(5)(d). The original MPCP further required the State Superintendent to monitor the performance of students participating in the program, and it empowered him or her to conduct one or more financial and performance audits of the program. See id. at § 119.23(7)(b), (9)(a).
¶ 7. Under the original MPCP, the State provided public funds directly to participating private schools. For each student attending a private school under the program, the State paid to each participating private school an amount equal to the state aid per student to which MPS would have been entitled under state aid distribution formulas. See id. at § 119.23(4). In the 1994-95 school year, this amount was approximately $2,500 per participating student. The amount *848 of state aid MPS received each year was reduced by the amount the State paid to private schools participating in the original program. See id. at § 119.23(5)(a).
¶ 8. The original MPCP withstood a number of state constitutional challenges in Davis v. Grover, 166 Wis. 2d 501, 480 N.W.2d 460 (1992). In Davis, this court first held that the original program, when enacted, was not a private or local bill and therefore was not subject to the prohibitions of Wis. Const. art. IV, § 18. See id. at 537. The court then held that the program did not violate the uniformity clause in Wis. Const. art. X, § 3 because the private schools did not constitute "district schools" simply by participating in the program. See id. at 540. The court finally held that the program, although it applied only to MPS, served a sufficient public purpose and therefore did not violate the public purpose doctrine. See id. at 546.
¶ 9. During the 1994-95 school year, approximately 800 students attended approximately 12 nonsectarian private schools under the original program. For the 1995-96 school year, the number of participating students increased to approximately 1,600 and the number of participating nonsectarian private schools increased to 17.
¶ 10. In 1995, as part of the biennial budget bill, the legislature amended in a number of ways the original MPCP. See 1995 Wis. Act 27, §§ 4002-4009. First, the legislature removed from Wis. Stat. § 119.23(2)(a) the limitation that participating private schools be "nonsectarian." See 1995 Wis. Act 27, § 4002. Second, the legislature increased to 15 percent in the 1996-97 school year the total percentage of MPS membership allowed to participate in the program. See id. at § 4003. Third, the legislature deleted the requirement that the State Superintendent conduct annual performance *849 evaluations and report to the legislature, and it eliminated the Superintendent's authority to conduct financial or performance evaluation audits of the program. See id. at §§ 4007m and 4008m.
¶ 11. Fourth, the legislature amended the original MPCP so that the State, rather than paying participating schools directly, is required to pay the aid to each participating student's parent or guardian. Under the amended MPCP, the State shall "send the check to the private school," and the parent or guardian shall "restrictively endorse the check for the use of the private school." Id. at § 4006m. Fifth, the amended MPCP places an additional limitation on the amount the State will pay to each parent or guardian. Under the amended MPCP, the State will pay the lesser of the MPS per student state aid under Wis. Stat. § 121.08 or the private school's "operating and debt service cost per pupil that is related to educational programming" as determined by the State. See id. The amended MPCP does not restrict the uses to which the private schools can put the state aid. Sixth, the legislature repealed the limitation that no more than 65 percent of a private school's enrollment consist of program participants. See id. at § 4003. Finally, the legislature added an "optout" provision prohibiting a private school from requiring "a student attending the private school under this section to participate in any religious activity if the pupil's parent or guardian submits to the teacher or the private school's principal a written request that the pupil be exempt from such activities." Id. at § 4008e.[3]
*850 ¶ 12. The Respondents, Warner Jackson, et al. and Milwaukee Teachers Education Association (MTEA), et al. filed two original actions in August 1995. Together the lawsuits challenged the amended MPCP under the Establishment Clause of the First Amendment; Wis. Const. art. I, § 18; art. X, § 3; art. IV, § 18; and the Wisconsin public purpose doctrine. On August 15, 1996, the National Association for the Advancement of Colored People (NAACP) filed a separate lawsuit, alleging the same claims as the first two lawsuits and adding a claim that, on its face, the amended MPCP violated the Equal Protection Clause of the Fourteenth Amendment and Wis. Const. art. I, § 1. The NAACP then filed a motion to consolidate the lawsuits. The circuit court consolidated the cases, but bifurcated the proceedings so that the equal protection claims would be heard only if the amended MPCP was upheld.
¶ 13. The State filed, under Wis. Stat. § (Rule) 809.70, a petition for leave to commence an original action, seeking from this court a declaration that the amended MPCP was constitutional. This court accepted original jurisdiction 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, this court split three-to-three on the constitutional issues, dismissed the petition, and effectively remanded the case to the circuit court for further proceedings. See State ex rel. Thompson v. Jackson, 199 Wis. 2d 714, 720, 546 N.W.2d 140 (1996)(per curiam).
¶ 14. Following remand, the circuit court partially lifted the preliminary injunction, thereby allowing the State to implement all of the 1995 amendments *851 except the amendment allowing participation by sectarian private schools. In January 1997, the circuit court granted the Plaintiffs' motions for summary judgment, denied the State's motion for summary judgment, and invalidated the amendments to the MCPC. The circuit court held that the amended MPCP violates the religious benefits and compelled support clauses of Wis. Const. art. I, § 18, the public or local bill prohibitions of Wis. Const. art. IV, § 18, and the public purpose doctrine as the program applied to sectarian schools. The circuit court also found that the amended program did not violate the uniformity clause in Wis. Const. art. X, § 3 or the public purpose doctrine as it applied to the nonsectarian private schools. Because the circuit court invalidated the amended MPCP on state constitutional grounds, the court did not address the question whether the program violates the Establishment Clause. The State appealed from the circuit court's order, and the court of appeals, with Judge Roggensack dissenting, affirmed.
¶ 15. A majority of the court of appeals held that the amended MPCP violates the prohibition against state expenditures for the benefit of religious societies or seminaries contained in Wis. Const. art. I, § 18. The court of appeals, therefore, struck the amended MPCP in its entirety and found it unnecessary to reach the other state and the federal constitutional issues. The State appealed to this court, and we granted the State's petition for review.
¶ 16. In the circuit court, the Respondents challenged the amended MPCP under the Establishment Clause of the First Amendment; Wis. Const. art. I, § 18; art. X, § 3; art. IV, § 18; and the Wisconsin public purpose doctrine. We address each issue in turn.
*852 ¶ 17. Before we begin our analysis of the amended MPCP, we pause to clarify the issues not before this court. In their briefs and at oral argument, the parties presented information and testimony expressing positions pro and con bearing on the merits of this type of school choice program. This debate largely concerns the wisdom of the amended MPCP, its efficiency from an educational point of view, and the political considerations which motivated its adoption. We do not stop to summarize these arguments, nor to burden this opinion with an analysis of them, for they involve considerations not germane to the narrow constitutional issues presented in this case. In the absence of a constitutional violation, the desirability and efficacy of school choice are matters to be resolved through the political process. This program may be wise or unwise, provident or improvident from an educational or public policy viewpoint. Our individual preferences, however, are not the constitutional standard.
Standard of Review
[1-3]
¶ 18. Procedurally, this case is before the court pursuant to the circuit court's grant of summary judgment to the Plaintiffs-Respondents. We independently review a grant of summary judgment, see Burkes v. Klauser, 185 Wis. 2d 308, 327, 517 N.W.2d 503 (1994), applying the same methodology as that used by the circuit court. See, e.g., Kafka v. Pope, 194 Wis. 2d 234, 240, 533 N.W.2d 491 (1995); Voss v. City of Middleton, 162 Wis. 2d 737, 748, 470 N.W.2d 625 (1991). A motion for summary judgment must be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Wis. Stat. § 802.08(2). The underlying issue in this case is *853 the constitutionality of the amended MPCP. The constitutionality of a statute is a question of law which we review independently, without giving deference to the decisions of the circuit court and the court of appeals. See State v. Post, 197 Wis. 2d 279, 301, 541 N.W.2d 115 (1995); State v. Migliorino, 150 Wis. 2d 513, 524, 442 N.W.2d 36 (1989).
[4]
¶ 19. Like any other duly enacted statute, the amended MPCP enjoys a strong presumption of constitutionality. All legislative acts are presumed constitutional, and every presumption must be indulged to sustain the law. See State v. Randall, 192 Wis. 2d 800, 824, 532 N.W.2d 94 (1995); State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 47, 205 N.W.2d 784 (1973). Accordingly, "[it] is not enough that respondent[s] establish doubt as to the act's constitutionality nor is it sufficient that respondent[s] establish the unconstitutionality of the act as a probability. Unconstitutionality of the act must be demonstrated beyond a reasonable doubt." La Plante, 58 Wis. 2d at 46; see also State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d 654 (1989); Quinn v. Town of Dodgeville, 122 Wis. 2d 570, 577, 364 N.W.2d 149 (1985).
I. Establishment Clause
[5]
¶ 20. The first issue we address is whether the amended MPCP violates the Establishment Clause of the First Amendment to the United States Constitution. Neither the circuit court nor the court of appeals reached this issue. Upon review we conclude that the amended MPCP does not violate the Establishment Clause because it has a secular purpose, it will not *854 have the primary effect of advancing religion, and it will not lead to excessive entanglement between the State and participating sectarian private schools.[4]
¶ 21. The First Amendment to the United States Constitution provides in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This mandate applies equally to state legislatures by virtue of the Due Process Clause of the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940); Holy *855 Trinity Community Sch. v. Kahl, 82 Wis. 2d 139, 150, 262 N.W.2d 210 (1978). The Establishment Clause, therefore, prohibits state governments from passing laws which have either the purpose or effect of advancing or inhibiting religion. See Agostini v. Felton,___ U.S. ___, 117 S. Ct. 1997, 2010 (1997).
[6]
¶ 22. When assessing any First Amendment challenge to a state statute, we are bound by the results and interpretations given that amendment by the decisions of the United States Supreme Court. See State ex rel. Holt v. Thompson, 66 Wis. 2d 659, 663, 225 N.W.2d 678 (1975). "Ours [is] not to reason why; ours [is] but to review and apply." State ex rel. Warren v. Nusbaum, (Nusbaum I), 55 Wis. 2d 316, 322, 198 N.W.2d 650 (1972). Our limited role is not aided by the Supreme Court's candid admission that in applying the Establishment Clause, it has "sacrifice[d] clarity and predictability for flexibility." Committee for Pub. Educ. and Religious Liberty v. Regan, 444 U.S. 646, 662 (1980).
¶ 23. The Supreme Court has repeatedly recognized that the Establishment Clause raises difficult issues of interpretation, and cases arising under it "have presented some of the most perplexing questions to come before [the] Court." Committee for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973); see, e.g., Mueller v. Allen, 463 U.S. 388, 392 (1983); Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). We are therefore cognizant of the Court's warnings that:
There are always risks in treating criteria discussed by the Court from time to time as `tests' in any limiting sense of that term. Constitutional adjudication does not lend itself to the absolutes of *856 the physical sciences or mathematics...[C]andor compels the acknowledgment that we can only dimly perceive the boundaries of permissible government activity in this sensitive area of constitutional adjudication.
Tilton v. Richardson, 403 U.S. 672, 678 (1971); see also Mueller, 463 U.S. at 393; Lemon, 403 U.S. at 612.
[7]
¶ 24. In an attempt to focus on the three main evils from which the Establishment Clause was intended to afford protection: sponsorship, financial support, and active involvement of the sovereign in religious activity, see Walz v. Tax Commission, 397 U.S. 664, 668 (1970), the Court has promulgated a three-pronged test to determine whether a statute complies with the Establishment Clause. See Lemon, 403 U.S. at 612. Under this test, a statute does not violate the Establishment Clause if (1) it has a secular legislative purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not create excessive entanglement between government and religion. See id. at 612-13. We must apply this three-part test to determine the constitutionality of Wis. Stat. § 119.23.[5]
*857 a. First Prong Secular Purpose
¶ 25. Under the first prong of the Lemon test, we examine whether the purpose of the state legislation is secular in nature. Our analysis of the amended MPCP under this prong of the Lemon test is straightforward. Courts have been "reluctan[t] to attribute unconstitutional motives to the states, particularly when a plausible secular purpose for the state's program may be discerned from the face of the statute." Mueller, 463 U.S. at 394-95.
[8]
¶ 26. As the court of appeals recognized, the secular purpose of the amended MPCP, as in many Establishment Clause cases, is virtually conceded. See Jackson, 213 Wis. 2d at 29. The purpose of the program is to provide low-income parents with an opportunity to have their children educated outside of the embattled Milwaukee Public School system. The property of providing educational opportunities for children of poor families in the state goes without question:
A State's decision to defray the cost of educational expenses incurred by parentsregardless of the type of schools their children attendevidences a purpose that is both secular and understandable. An educated populace is essential to the political and economic health of any community, and a State's efforts to assist parents in meeting the rising cost of educational expenses plainly serves this secular purpose of ensuring that the State's citizenry is well-educated. *858 Mueller, 463 U.S. at 395. The propriety of such legislative purpose, however, does not immunize the amended MPCP from further constitutional challenge. See Nyquist, 413 U.S. at 773-74. If the amended MPCP either has a primary effect that advances religion or if it fosters excessive entanglements between church and state, then the program is constitutionally infirm and must be struck down. See id. at 774.
b. Second Prong Primary Effect of Advancing Religion
¶ 27. Analysis of the amended program under the second prong of the Lemon test is more difficult. While the first prong of Lemon examines the legislative purpose of the challenged statute, the second prong focuses on its likely effect. A law violates the Establishment Clause if its principal or primary effect either advances or inhibits religion. See Lemon, 403 U.S. at 612; see also Agostini, 117 S.Ct. at 2010; Mueller, 463 U.S. at 396.
¶28. This does not mean that the Establishment Clause is violated every time money previously in the possession of a state is conveyed to a religious institution. See Witters v. Washington Dep't of Services for the Blind, 474 U.S. 481, 486 (1986). "The simplistic argument that every form of financial aid to churchsponsored activity violates the Religion Clauses was rejected long ago...." Tilton, 403 U.S. at 679; see Nusbaum I, 55 Wis. 2d at 321 n.4. The constitutional standard is the separation of church and state. See Zorach v. Clauson 343 U.S. 306, 314 (1952). "The problem, like many problems in constitutional law, is one of degree." Id.
¶ 29. We begin our analysis under the second prong of the Lemon test by first considering the cumulative *859 criteria developed over the years and applying to a wide range of educational assistance programs challenged as violative of the Establishment Clause. See Tilton, 403 U.S. at 677-78. Although the lines with which the Court has sketched the broad contours of this inquiry are fine and not absolutely straight, the Court's decisions generally can be distilled to establish an underlying theory based on neutrality[6] and indirection:[7] state programs that are wholly neutral in offering educational assistance directly to citizens in a *860 class defined without reference to religion do not have the primary effect of advancing religion. The Court has explained:
Given that a contrary rule would lead to such absurd results, we have consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit.
Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8 (1993).
¶ 30. The Court's general principle under the Establishment Clause has, since its decision in Everson, been one of neutrality and indirection.[8] Writing for the majority in Everson, Justice Black set out the view of the Establishment Clause that still guides the *861 Court's thinking today. The Everson Court explained that "the clause against establishment of religion by law was intended to erect `a wall of separation between Church and State.'" Everson, 330 U.S. at 16 (quoting Reynolds v. United States, 98 U.S. 145, 164 (1878)). The Court tempered its statement, however, by cautioning that in maintaining this wall of separation, courts must "be sure that [they] do not inadvertently prohibit [the government] from extending its general State law benefits to all its citizens without regard to their religious belief." Id. at 16. Under this reasoning, the Court held that the Establishment Clause does not prohibit New Jersey from spending tax-raised funds to reimburse parents directly for the bus fares of parochial school pupils as a part of a general program under which the State pays the fares of pupils attending public and other schools. See id. at 17.
¶ 31. In Nyquist, the Court struck down on Establishment Clause grounds a New York program that, inter alia, provided tuition grants to parents of children attending private schools. Under the program, New York sought to assure that participating parents would continue to send their children to religion-oriented schools by relieving their financial burdens. See Nyquist, 413 U.S. at 783. Before striking the tuition grants, the Court distinguished on two grounds the New York statute from the New Jersey statute reviewed in Everson: (1) unlike the statute in Everson, the New York statute was non-neutral because it provided benefits solely to private schools and parents with children in private schools, see id. at 782 n.38; and (2) the New York statute provided financial assistance rather than bus rides, see id. at 781-82. The Court concluded that the fact that aid was distributed directly to parents rather than the schools, although a *862 factor in its analysis, did not save the statute because the effect of New York's program was "unmistakably to provide desired financial support for nonpublic, sectarian institutions." Id. at 783.
¶ 32. Significant to the case now before us, however, the Court in Nyquist specifically reserved the issue whether an educational assistance program that was both neutral and indirect would survive an Establishment Clause challenge:
Because of the manner in which we have resolved the tuition grant issue, we need not decide whether the significantly religious character of the statute's beneficiaries might differentiate the present cases from a case involving some form of public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or publicnonpublic nature of the institution benefited.
Id. at 782 n.38. In cases following its decision in Nyquist, the Court has piecemeal answered this question as it has arisen in varying fact situations. See, e.g., Mueller,