(dissenting). While the majority opinion obviously entailed much thought and effort, I believe its analysis of the constitutional questions presented by this appeal led to an erroneous conclusion, in part because it did not undertake an analysis of the Milwaukee Parental Choice Program (Parental Choice) under the Establishment Clause of the First Amendment before examining Parental Choice under the Wisconsin Constitution. If the majority had done so, I am confident it would not have concluded that Establishment Clause jurisprudence was in "hopeless disarray." Rather, it would have recognized that it provides a well articulated guide, directing where the policies that underlie the Establishment Clause are related to the issues presented by each challenge. To *47begin the Article I, § 18 analysis in this case with an examination of the Establishment Clause, permits a thorough comparison of the constitutional issues presented by Parental Choice with the standards of jurisprudence necessary to an effective review. Because I conclude that Respondents have failed to meet their burden to prove Parental Choice unconstitutional beyond a reasonable doubt, I must respectfully dissent.
DISCUSSION
First Amendment.1
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." So begins the First Amendment to the United States Constitution, with words so simple to repeat, but so difficult to interpret.2 The Establishment Clause and the Free Exercise Clause may both bear on the same state conduct. As the United States Supreme Court has repeatedly recognized, there is a tension within the religion clauses of the First Amendment *48itself. The Free Exercise Clause3 and the Establishment Clause are both written in absolute terms, yet it is impossible to completely permit the former without offending the latter. Committee for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 788 (1973). As a consequence of this internal tension, states which legislate in this area are required to maintain an attitude of neutrality which neither advances nor inhibits religion. Id. As the Court explained, "[T]he basic purpose of these provisions ... is to insure that no religion be sponsored or favored, none commanded, and none inhibited." Walz v. Tax Comm'n of the City of New York, 397 U.S. 664, 669 (1970).
1. Evolution of Establishment Clause Jurisprudence.
As in many areas of the common law, Establishment Clause jurisprudence has developed through years of court decisions which make specific that which the Constitution provides only in general terms. In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court set out the general structure of the analysis which it has used in Establishment Clause cases since Lemon:
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; *49finally, the statute must not foster "an excessive government entanglement with religion."4
Id. at 612-13 (citations omitted). However, while the principles enunciated in Lemon remain well settled, the explication of those principles in varying factual situations shows that a bright line test for Establishment Clause challenges is not possible. In part, this is true because our nation's history has never been one in which the church and the state were completely and absolutely separated. As Justice Powell points out in Nyquist, "[i]t has never been thought either possible or desirable to enforce a regime of total separation, and as a consequence cases arising under these Clauses have presented some of the most perplexing questions to come before this Court.” Nyquist, 413 U.S. at 760. What the First Amendment requires by way of analysis is a careful examination of the law challenged on establishment grounds to determine whether it furthers the three evils which the Establishment Clause was designed to prevent: state financial support of religion, state sponsorship of religion and the active involvement of the state in religious activity. Walz, 397 U.S. at 668.
There have been numerous Establishment Clause challenges to state laws touching upon education. As those challenges have arisen in the context of varying factual patterns, the general contours of the Lemon test have been defined more clearly. For example, in Mueller v. Allen, 463 U.S. 388 (1983), the Court dismissed a challenge to a Minnesota statute which allowed a deduction for state income taxes for the *50expenses that parents of school children actually incurred5 for textbooks, tuition and transportation. It was acknowledged that the great bulk of the deductions would go to the parents of those students who attended private schools because public school students were provided free textbooks, tuition and generally free transportation as well. Additionally, ninety-five percent of the private school students attended schools that were sectarian. Id. at 391.
The secular legislative purpose of ensuring that the state's citizenry be well educated was clear in Mueller. Therefore, the bulk of the Court's decision focused on the second element of the Lemon test, that of determining whether the principal or primary effect of the statute was one which neither advanced nor inhibited religion. At the start of its analysis, the Court confirmed that "[o]ne fixed principle in this field is our consistent rejection of the argument that 'any program which in some manner aids an institution with a religious affiliation' violates the Establishment Clause." Mueller, 463 U.S. at 393 (citation omitted). Key to the Court's upholding the constitutionality of the statute was its religious neutrality, where the beneficiaries of the statute were defined on a religiously neutral ground {i.e., school children) and where no state payments were made directly to any religious schools. The Court recognized that financial assistance provided to parents would ultimately have some economic effect comparable to that of state aid given directly to the schools attended by their children, but it found decisive *51that the only way in which those sectarian schools could benefit was as the result of "private choices of individual parents of school-age children." Id. at 399. Therefore, removing the state from the decision-making process about whether the children would attend sectarian institutions was material to avoiding the three evils the First Amendment was designed to prevent.
In Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481 (1986),6 a challenge was made to permitting a particular student to participate in a program which provided public funds for special education and/or training in a profession, business or trade, in order to assist visually handicapped persons overcome vocational handicaps and to obtain the maximum degree of self-support and self-care of which they were capable. Witters was suffering from a progressive eye condition which made him eligible under the act, but he was attending Inland Empire School of the Bible, a private Christian college in Spokane, Washington where he studied the Bible, ethics, speech and church administration in an effort to equip himself for a career as a pastor, missionary or youth director. The state denied him assistance because the monies that would have been provided would have passed through him to a religious school. Witters brought suit in state court for a review of the administrative decision denying him aid. When the state courts affirmed the denial of aid, he appealed to the Supreme Court, which reversed. Justice Marshall, writing for the Court, began with the *52same basic principle used in Mueller when he stated that:
It is well settled that the Establishment Clause is not violated every time money previously in the possession of a State is conveyed to a religious institution. For example, a State may issue a paycheck to one of its employees, who may then donate all or part of that paycheck to a religious institution, all without constitutional barrier; and the State may do so even knowing that the employee so intends to dispose of his salary.
Id. at 486-87. The Court also stated that on the other hand, a state may not give a "direct subsidy" to a religious school. The Court defined the question presented in Witters as whether the extension of the aid to Witters and then his use of that aid to support his religious education was a permissible transfer similar to the hypothetical salary donation or an impermissible "direct subsidy." Id. at 488. The Court concluded that the only way that a religious institution would benefit from the aid given to Witters would be through Witters' personal choice, because the State of Washington's program was made generally available without regard to the sectarian/nonsectarian, or public/hon-public nature of the school at which the aid would be spent. Additionally, the Court concluded that giving money to Witters was in no way an incentive for him to undertake a sectarian education. Id.
Justice Powell, who was the author of Nyquist and concurred in Witters, concisely set forth his understanding of the test to be used when evaluating whether the principal or primary effect of payments made to citizens was actually state advancement of religion when he stated that "state programs that are *53wholly neutral in offering educational assistance to a class defined without reference to religion do not violate the second part of the Lemon v. Kurtzman test, because any aid to religion results from the private choices of the individual beneficiaries." Id. at 490-91 (Powell, J., concurring). And, in her concurring opinion, Justice O'Connor reiterated that the aid to religion at issue in Witters was solely the result of a private choice. The conclusion that a private choice controlled the use of the state aid was important to her because "[n]o reasonable observer is likely to draw from the facts ... an inference that the State itself is endorsing a religious practice or belief." Id. at 493 (O'Connor, J., concurring) (citations omitted). And, it is a state's promotion or restriction of religious practices which the Establishment Clause proscribes, not that of private individuals.
In Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993), the Supreme Court reviewed Arizona's refusal to provide a sign-language interpreter to a deaf student who attended a private Roman Catholic high school in Tucson, Arizona. Under federal law, and state law, Zobrest would have been entitled to an interpreter as a result of his disability. However, his request was denied because the state concluded that to provide Zobrest with an interpreter in a Catholic high school would run afoul of the Establishment Clause.
In addressing the issues for the Court, Chief Justice Rehnquist began again with a premise similar to those asserted in Witters, Mueller and Nyquist when he stated:
We have never said that "religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs." . . . [W]e have consistently held that *54government 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, 509 U.S. at 8 (citations omitted). When the Court applied the Lemon test, it concluded the statute was motivated by a valid secular purpose. In analyzing the second prong of Lemon which requires that the principal or primary effect of the law neither advance nor inhibit religion, it reasoned that the statute provided a benefit to a class (deaf children) that was not measured by religious preference, or lack thereof, and that any benefit which a religious school would receive occurred only after Zobrest's parents chose of their own free will to place him in a pervasively sectarian environment. Id. at 13. Therefore, it was not the state that was endorsing religion, but Zobrest and his parents. Additionally, the Court concluded that providing an interpreter did not indirectly finance religious education by relieving the sectarian school of costs it otherwise would have borne in educating its students. Id. at 12.
In Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819 (1995), an Establishment Clause challenge was again made in an educational setting. There, the University of Virginia had collected fees and established a Student Activities Fund from which student groups who published newspapers or magazines could retrieve their publication costs. However, a student organization, Wide Awake Productions, which would have been otherwise entitled to publication monies from the Student Activities Fund, was denied those monies because it published a newspaper *55with a Christian point of view. Wide Awake Productions challenged the University's decision and the Supreme Court agreed with Wide Awake Productions. It held that the University and the courts below had erred by:
focusing on the money that is undoubtedly expended by the government, rather than on the nature of the benefit received by the recipient. If the expenditure of governmental funds is prohibited whenever those funds pay for a service that is, pursuant to a religion-neutral program, used by a group for sectarian purposes, then Widmar,7 Mergens,8 and Lamb's Chapel9 would have to be overruled.
Rosenberger, 515 U.S. at 843. In so holding, the Supreme Court clarified that the benefit received by the recipient must be one that does not inhibit or promote religion and that what the student does with that benefit, even if it is to spend 100% of it on religion-related expenditures, as in Witters and Rosenberger, does not violate the Establishment Clause. This holding is bottomed on the understanding that forbidding *56the recipient of the benefit from spending it according to his own personal beliefs would not be religion neutral, but instead would convey a state-approved hostility toward religion. As Justice O'Connor explained:
[It] would leave an impermissible perception that religious activities are disfavored: "the message is one of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion."... Neutrality, in both form and effect, is one hallmark of the Establishment Clause.
Id. at 846 (O'Connor, J., concurring) (citation omitted).
The most recent Supreme Court pronunciation on an Establishment Clause challenge in an educational context is found in Agostini v. Felton, 117 S.Ct. 1997 (1997). There, the Supreme Court overruled its holding in Aguilar v. Felton, 473 U.S. 402 (1985), and a portion of its holding in School Dist. of City of Grand Rapids v. Ball, 473 U.S. 373 (1985), when it held that public school teachers could provide remedial education, guidance and job counseling to eligible students within the confines of private schools, ninety percent of which were sectarian, without contravening the Establishment Clause. In so doing, the Court re-examined the following presumptions which had been operational in Aguilar and Ball:
[That] (i) any public employee who works on the premises of a religious school is presumed to inculcate religion in her work; (ii) the presence of public employees on private school premises creates a symbolic union between church and state; and (iii) any and all public aid that directly aids the educa*57tional function of religious schools impermissibly finances religious indoctrination, even if the aid reaches such schools as a consequence of private decisionmaking.
Agostini, 117 S.Ct. at 2010.
The Court concluded that those presumptions were no longer valid because the Court's "understanding of the criteria used to assess whether aid to religion has an impermissible effect" had changed. Id. First, it concluded that allowing state-paid teachers to work in parochial schools does not always result in the impermissible effect of state-sponsored indoctrination, nor does it always constitute a symbolic union between church and state. Id. Rather, the neutral eligibility criteria ensure that believers and nonbelievers are treated equally under the statute. Second, the Court discarded the rule that all government aid that "directly aids" the educational function of religious schools is presumptively invalid. It concluded that when the religious institution is able to benefit from the state program only as the result of an independent choice of a citizen who is eligible for the program, the Establishment Clause is not contravened. Id. at 2011 (citation omitted). Third, the Court will no longer presume that when aid is provided to students at the schools of their choice, those services relieve the sectarian school of costs it would otherwise have had to spend in educating its students, even without the program under challenge. Id. at 2011-12. Fourth, the constitutionality of an aid program does not depend on the number of sectarian school students who will receive otherwise neutral aid under the program. Id. at 2013.
The Court concluded that Establishment Clause analyses should focus on the criteria used by the state *58to identify the beneficiaries of an aid program because they are relevant to whether the program subsidizes religion and also to whether the criteria create a financial incentive for the recipient to undertake religious education. Id. at 2014. The Court reasoned that an "incentive is not present, however, where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis." Id.
2. Milwaukee Parental Choice Program.
Parental Choice was enacted to broaden the educational opportunities and increase learning for students from lower-income Milwaukee families because these students were among the lowest academic achievers in the state. The beneficiaries of Parental Choice are defined by the economic circumstances and geographic location of the family in which a school-aged child is found. In order to be eligible to participate, a child's family may have income no greater than 175% of the poverty level as determined by the federal office of management and budget, must reside in Milwaukee, and must be otherwise eligible to attend kindergarten through grade twelve.10
Participating private schools may be sectarian or nonsectarian. They must select their students for the program on a random basis, except that they may give preference to siblings of pupils already accepted. The participating schools must be located in Milwaukee and meet all the requisite state and federal laws and codes for accreditation. The private schools cannot require pupils attending under the program to partici*59pate in any religious activity. That choice is left to the parents. The parents of participating students are paid "an amount equal to the private school's operating and debt service cost per pupil that is related to educational programming, as determined by the department,"11 limited by the per-pupil amount to which the public school district is entitled under § 121.08, STATS. The checks are sent to the parent's choice of schools and can be cashed only for the cost of the pupil's "educational programming, as determined by the department." Section 119.23(4), Stats.
The case at hand presents a facial challenge to the constitutionality of Parental Choice because it seeks to strike down all possible applications of the act which created it. Bowen v. Kendrick, 487 U.S. 589, 600 (1988). Therefore, Respondents must establish, beyond a reasonable doubt, that there are no possible applications or interpretations of the statute which would be constitutional. United States v. Salerno, 481 U.S. 739, 745 (1987). Because the trial court granted summary judgment to the Respondents, there must also be no issues of material fact in dispute. Lisa R.P. v. Michael J.W., 210 Wis. 2d 132, 141, 565 N.W.2d 179, 183 (Ct. App. 1997).
This Establishment Clause analysis begins by applying the Lemon test. Parental Choice easily satisfies the first prong, with the secular purpose of improving the academic achievement for children from lower-income families. However, the major concerns about the constitutionality of Parental Choice center on the second prong of the Lemon test.
The Respondents maintain the statute fails the primary effect analysis of Lemon, and thereby violates *60the Establishment Clause. Respondents assert Parental Choice provides "direct" support to a religious activity, even if the statute were construed to be facially neutral12 and to have a secular purpose. The Appellants counter that any support received by a religious school is "indirect" because an independent choice by a student's parent is a condition precedent to a religious school's receipt of money; and therefore, the program is constitutional. To which Respondents reply, that even indirect support may contravene the prohibitions of the Establishment Clause.
My analysis of the second prong of the Lemon test begins with a recognition of the basic principles of Establishment Clause jurisprudence which are relied on in Agostini, Witters, Mueller and Nyquist. First, merely because a social welfare program in some manner aids an institution with a religious affiliation, it does not necessarily follow that the program is unconstitutional. Second, the class benefited must be described without reference to religion. Third, the nature of the benefit provided must neither be hostile to religion nor provide a religious incentive. In applying the primary effect test, I utilize the directive of Justice Powell that "state programs that are wholly neutral in offering educational assistance to a class defined without reference to religion do not violate the second part of the Lemon v. Kurtzman test, because any aid to religion results from the private choices of individual beneficiaries." Witters, 474 U.S. at 490-91. See also Agostini, 117 S.Ct. at 2011-12 and 2014.
Here, the class of beneficiaries is defined by the income levels of the students' families and the geographic locations in which the students reside. As set *61out in the statute, the beneficiaries comprise a neutral classification that has no reference to religion. The nature of the benefit provided is the opportunity for additional educational choices for the parents and students of lower-income families. The benefit neither promotes religion nor is hostile to it. Rather, it promotes the opportunity for increased learning by those currently having the greatest difficulty with educational achievement. In so doing, the State leaves the choice of the site of each child's education to his/her parents. It is constitutionally permissible under current Establishment Clause jurisprudence for parents to choose a religious education for their children, even when they are receiving financial payments from the State to fund that choice. Zobrest, 509 U.S. at 13; Mueller, 463 U.S. at 399. As the Court held in Witters, the Establishment Clause is not violated merely because money previously in the possession of a state is conveyed to a religious school. A parent's choice to send his or her child to a religious private school and thereafter to transfer the monies provided under the program to that school does not run afoul of the First Amendment. See Mueller, 463 U.S. at 399; Witters, 474 U.S. at 486-87; Rosenberger, 515 U.S. at 842; Agostini, 117 S.Ct. at 2016.
Furthermore, just because the majority of the schools which have applied to participate in Parental Choice are sectarian schools, it does not necessarily follow that the statute is unconstitutional. As the Supreme Court reasoned in Agostini:
Nor are we willing to conclude that the constitutionality of an aid program depends on the number of sectarian school students who happen to receive the otherwise neutral aid. Zobrest did not turn on the *62fact that James Zobrest had, at the time of litigation, been the only child using a publicly funded sign-language interpreter to attend a parochial school. Accord, Mueller v. Allen, 463 U.S. 388, 401, 103 S.Ct. 3062, 3070, 77 L.Ed.2d 721 (1983) ("We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law.").
Agostini, 117 S.Ct. at 2013, citing Mueller, 463 U.S. at 401.
However, repeatedly in cases from Nyquist to Agostini, the Court's analysis involves consideration of whether the state payments actually supplant costs the sectarian schools would have incurred, even without the program under challenge. Therefore, I consider this factor as well. Section 119.23(4), Stats., provides for state payments to parents equal to the "cost per pupil that is related to educational programming," so long as that cost is not more than the per-pupil payment received by Milwaukee Public Schools. However, § 119.23(4) is ambiguous because it is capable of being understood by reasonably well-informed persons in at least two ways. D.S. v. Racine County, 142 Wis. 2d 129, 134, 416 N.W.2d 292, 294 (1987). The words "cost per pupil that is related to educational programming, as determined by the department" could mean the cost for the educational programming related solely to Parental Choice students, or the phrase could mean the cost for the educational programming for all students in a given private school divided by the number of students in that school.13 The record does not reflect whether *63the latter construction would result in a larger payment to the parents, which they would then spend at a participating school, than would the former construction. And, Agostini teaches that courts are no longer free to presume that when aid is provided to students who attend religious schools those monies are supplanting costs the school would have had, even without the program at issue. Agostini, 117 S.Ct. at 2013. However, to the extent that such a construction would result in a larger payment that would supplant costs which the schools would have incurred, even without participating in Parental Choice, it must be avoided. This is consistent with the basic maxim of statutory construction which requires that a facial challenge to a statute will not succeed when a limiting construction is available that will maintain the legislation's constitutional integrity. Broadrick v. Oklahoma, 413 U.S. 601, 613(1973).
It has long been a tenet of First Amendment law that in determining a facial challenge to a statute, if it be "readily susceptible" to a narrowing construction that would make it constitutional, it will be upheld.
Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397 (1988). Therefore, I conclude that § 119.23(4), Stats., describes only the costs participating schools incur due to educating Parental Choice students.14
I also conclude that Parental Choice passes the third prong of the Lemon test because the program *64does not require excessive state entanglement with religion under the standards established in Agostini. Parental Choice requires the Department of Public Instruction to determine the amount of the payment parents will receive, to confirm that the participating schools have complied with all the requisite laws and codes and that they select pupils on a random basis, exclusive of siblings already admitted, and to monitor student performance. The Legislative Audit Bureau will also perform a financial and performance evaluation audit of the program. All are tasks that will not involve the State in the religious teachings at any sectarian school. And, no Respondent argued that the statutory responsibilities of the State result in constitutional infirmity under the third prong of the Lemon test.
The. majority contends that Nyquist is the Establishment Clause case whose facts most closely resemble Parental Choice; and therefore, Nyquist, not more current jurisprudence, determines the outcome in this case. I disagree for two reasons. First, Establishment Clause jurisprudence is an evolving legal concept, where the outlines of the structure necessary to an effective analysis of a constitutional challenge are sharpened and clarified through successive court decisions. Therefore, Nyquist must be interpreted and applied with current Establishment Clause jurisprudence in mind. Second, Nyquist is factually distinguishable in ways the United States Supreme Court has found significant.
Nyquist examined an act which provided stipends to lower-income families who sent their children to private schools. The stipends were capped by a percentage of the tuition paid, but the amount received was tied to whether the child attended elementary or secondary *65school, not to the amount the parent paid for tuition. It also provided for tax deductions for higher-income families who did not qualify for the stipends. The deductions were also unrelated to tuition actually paid. The nonpublic schools were characterized by the Court as those which could:
(a) impose religious restrictions on admissions; (b) require attendance of pupils at religious activities; (c) require obedience by students to the doctrines and dogmas of a particular faith; (d) require pupils to attend instruction in the theology or doctrine of a particular faith; (e) are an integral part of the religious mission of the church sponsoring it; (f) have as a substantial purpose the inculcation of religious values; (g) impose religious restrictions on faculty appointments; and (h) impose religious restrictions on what or how the faculty may teach.
Nyquist, 413 U.S. at 767-68. In striking down the stipends and tax deductions, the Court concluded that the act had made no effort to maintain a separation between secular and religious educational functions at the private schools. Additionally, it concluded that because the act provided unrestricted cash for the families to use, the stipends and tax deductions operated as impermissible "incentives" that provided "encouragement" to parents to send children to religious schools. Id. at 785-86, 791.
By contrast, Parental Choice made significant efforts to separate the secular and religious aspects of the participating schools when it stated that no student was required to participate in any religious activity and that the schools were required to select students on a random basis, giving preference only to siblings of students already in attendance. Additionally, the record *66does not reflect that there is any religious component to hiring of faculty for Parental Choice schools. And finally, the payments received by the parents of Parental Choice students are directly tied to the cost to the school of educating Parental Choice students. Therefore, parents' use of the funds is restricted, providing no incentive for parents to send their children to sectarian schools.
In summation, I conclude Parental Choice does not violate the Establishment Clause of the First Amendment because it offers educational assistance to a class of persons (children from lower-income families) defined without reference to their religion; it provides a benefit (increased educational opportunity) that is religion neutral; any monies which, eventually reach a religious institution do so only after an independent choice by a parent; and the payments made do not subsidize religious institutions for costs they would have incurred, even without participating in Parental Choice.
Wisconsin Constitution.
1. Article I, § 18.
Article I, § 18 of the Wisconsin Constitution formed two bases for the majority's conclusion that Parental Choice was unconstitutional; the benefit clause and the compelled support clause. Article I, § 18 states in relevant part:
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 *67any 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.
It contains constitutional guarantees of several personal liberties bottomed on the idea of religious freedom.
Often when a statute is challenged on religious freedom grounds, it is challenged under both the First Amendment and Article I, § 18. When that occurs, the Wisconsin Supreme Court has repeatedly stated that "[w]hile words used may differ, both the federal and state constitutional provisions relating to freedom of religion are intended and operate to serve the same dual purpose of prohibiting the 'establishment' of religion and protecting the 'free exercise' of religion." State ex rel. Warren v. Nusbaum, 55 Wis. 2d 316, 332, 198 N.W.2d 650, 658 (1972)15 (where the Lemon test was first employed by a Wisconsin appellate court in its Establishment Clause analysis); State ex rel. Warren v. Nusbaum, 64 Wis. 2d 314, 328, 219 N.W.2d 577, 584 (1974);16 King v. Village of Waunakee, 185 Wis. 2d 25, 53-54, 517 N.W.2d 671, 683 (1994).
However, the quoted statements do not mean that the protections afforded by Article I, § 18 are identical in all respects to those provided by the First Amendment. State v. Miller, 202 Wis. 2d 56, 65-66, 549 N.W.2d 235, 239 (1996). And, even though it has been held that if a First Amendment provision involving religious freedom is violated, Article I, § 18 of the Wisconsin Constitution is also violated, Nusbaum I, 55 *68Wis. 2d at 333, 198 N.W.2d at 659, it does not always follow that if the First Amendment has not been violated, Article I, § 18 has not been transgressed. Miller, 202 Wis. 2d at 65-66, 549 N.W.2d at 239.
Miller, which involved a free exercise of religion challenge brought by members of the Old Order Amish faith, is an example of a difference between First Amendment jurisprudence and Article I, § 18 jurisprudence. In analyzing their claim under the Wisconsin Constitution, the Court acknowledged federal law and its past relationship to free exercise challenges under Article I, § 18, but decided not to use the current federal analysis for a free exercise challenge and instead retained the compelling state interest/least restrictive means analysis formerly used in free exercise challenges under the First Amendment.17 However, it did not create a bright line and hold that all challenges to alleged restrictions of religious freedom must always be analyzed differently from the analyses used with parallel challenges under the First Amendment. Rather, it held that:
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.
Id. at 64 (emphasis added). The analysis used in Miller is appropriate for a free exercise challenge, but it is not applicable to the benefit clause and compelled support *69clause challenges at issue here. Therefore, I examine those challenges using the analytical framework designated by the Wisconsin Supreme Court for the benefit clause and the compelled support clause.
a. Benefit Clause.
The Respondents' benefit clause challenge, at least in some respects, parallels an Establishment Clause challenge under the First Amendment. The benefit clause states: "[N]or shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries."18
State ex rel. Atwood v. Johnson, 170 Wis. 218, 176 N.W. 224 (1919), addresses a benefit clause challenge in an educational context.19 There, the Court considered a law which gave financial stipends to returning World War I veterans to enable them to attend any nonprofit college, vocational school, high school or elementary school in the state, including religious schools. The use of the funds by the schools was not restricted. While not articulating a lengthy reasoning process in reaching the conclusion that the act did not violate the benefit clause, the Court clearly examined whether the payments received by the schools offset the additional *70costs to the schools which were generated by educating the veterans. It stated:
The contention that financial benefit accrues to religious schools from the act is equally untenable. Only actual increased cost to such schools occasioned by the attendance of beneficiaries is to be reimbursed. They are not enriched by the service they render. Mere reimbursement is not aid.
Id. at 263-64, 176 N.W. at 228 (emphasis added). As has been discussed above in First Amendment context, and as will be discussed below in Article I, § 18 challenges, the concern that a religious school not be compensated for expenses which it would have had notwithstanding the program at issue remains a part of religious freedom jurisprudence. This is so because payment of those expenses may be viewed as subsidizing religion, if the institution's use of the funds is unrestricted. See Agostini, 117 S.Ct. at 2011; Nusbaum I, 55 Wis. 2d at 327, 198 N.W.2d at 655.
In State ex rel. Reynolds v. Nusbaum, 17 Wis. 2d 148, 115 N.W.2d 761 (1962), the Court addressed a facial challenge to a statute which provided transportation to and from public schools for all pupils residing in a school district two or more miles from the nearest public school, regardless of whether they attended public or private schools. In coming to its conclusion that an unconstitutional benefit would be provided to parochial schools under the act,20 the Court employed an *71analysis which predates the use of the Lemon test21 under federal or state jurisprudence, but which applied criteria very similar to the first two prongs of Lemon.
First, the Court in Reynolds directed that when confronted with a challenge under the benefit clause, "the crucial question is whether the benefits which the parochial schools would receive under the act are of a category to constitute a violation of sec. 18, art. I, Wisconsin constitution." Id. at 157, 115 N.W.2d at 766 (emphasis added). Second, it examined "category" in two ways: in terms of the specific benefit provided and in terms of the class to which the benefit was directed. The Court listed examples of benefits, such as police and fire protection, that did not run afoul of the benefit clause and concluded they were benefits that were neutral22 in regard to religion. "[A]ll of these public services and facilities are provided to the public, . . . generally on a basis whereby no classification is made as to religious organizations or schools. It is this which distinguishes these benefits from those sought to be conferred by the instant act." Id. The Court also considered benefits given directly to religious organizations which did not apply to the public generally, such as the tax exemption given to religious or parochial school property under § 70.11(4), Stats. The Court concluded tax benefits were in a category that was neutral23 because the class to which it applied included all nonprofit organizations, not simply those affiliated with a *72religious organization. Id. at 158-59, 115 N.W.2d at 766.
As part of its analysis of whether the act provided for a "category" of religiously neutral benefits, the Court found24 that prior to the act, the parochial schools had paid part, or all, of the cost of transportation of their pupils; and therefore, it was the schools who stood to benefit financially because, by the operation of the new law, they were being relieved of costs they would have had anyway.25 Id. at 156, 115 N.W.2d at 765. Therefore, the specific benefit was not neutral to religion because it subsidized the costs of the religious schools. The analysis used in Reynolds is very similar to the primary effect test of Lemon, which currently requires religious neutrality in the criteria which define the class of beneficiaries and religious neutrality in regard to the specific benefit provided. Witters, 474 U.S. at 490-91 (Powell, J., concurring).
However, of equal significance, when Reynolds is examined in light of current federal and state jurisprudence for establishment challenges, the Court concluded the act failed the equivalent of the first *73prong of the Lemon test: It didn't have a valid secular purpose. The Court explained:
The attorney general argues that this act is sustainable on the basis that the transportation of parochial school pupils would promote their health and welfare. It could also be argued with equal plausibility that a direct grant in aid of public funds to parochial schools promotes the general welfare of pupils of such schools because it aids in their education.
Reynolds, 17 Wis. 2d at 160, 115 N.W.2d at 767. And lest there be any doubt that the Court in Reynolds did not find a valid secular purpose for passing the act, in Warren v. Reuter, the Court reiterated that determination:
In State ex rel. Reynolds v. Nusbaum (1962), 17 Wis. 2d 148, 115 N.W.2d 761, this court did not accept the declaration of the legislature but determined the purpose of the school bus law in its "realistic operation" was to benefit the private schools rather than promote the safety of children.
State ex rel. Warren v. Reuter, 44 Wis. 2d 201, 212, 170 N.W.2d 790, 794 (1969).
In Nusbaum II, the Court upheld the constitutionality of a comprehensive act whose purpose was to provide handicapped children with special services to meet their educational needs, even when that purpose was accomplished by school boards contracting directly with religious organizations and paying them to provide educational programs for the children. In analyzing the constitutional challenges, the Court stated, "Initially it must be recognized that the mere contracting for goods or services for a public purpose with a sectarian institution is appropriate state *74action." Nusbaum II, 64 Wis. 2d at 324, 219 N.W.2d at 583. This reasoning is consistent with the conclusion set forth in Atwood, that if the act simply allows payment for the services a religious organization provides, the money drawn from the treasury is not for the benefit of a religious organization. It is also consistent with the converse proposition stated in Reynolds, that if payment supplants costs a religious school would have had notwithstanding the act, it does have the primary effect of benefiting religion.
King provides the most recent Wisconsin Supreme Court consideration of a benefit clause challenge. There, King claimed a creche the Village of Waunakee placed in a village park during the Christmas holiday season was unconstitutional. It was contended that village monies were used to erect and maintain the creche, thereby bestowing a benefit on those of the Christian faith contrary to Article I, § 18. The Appellants urged the Court to conclude that Reynolds required a constitutional analysis for Article I, § 18 that is different from that used in Establishment Clause cases.26 But the Court rejected that contention, and it held that, at least for a benefit clause challenge,27 it would interpret and apply Article I, § 18 in accord with the United States Supreme Court's interpretation of the Establishment Clause. King, 185 Wis. 2d at 54, 517 N.W.2d at 683.
Therefore, this dissent follows the directive of King in analyzing this facial challenge to Parental Choice. *75As explained above, Parental Choice passes the Lemon test, as that test has been explained by the United States Supreme Court. However, that conclusion does not end my analysis, contrary to what is stated in the majority opinion. Wisconsin Supreme Court decisions support my conclusion that Parental Choice does not violate the Wisconsin Constitution.
The majority agrees that the act has a valid secular purpose, but, it defines "benefit" as the money the State provides and concludes that religious schools would be "benefited" because they would be paid for the services they provide to lower-income children under the act. There are two errors in that analysis: First, by focusing on the money the State is providing, rather than on the nature of the benefit received by the children, the majority assumes that a recipient of state funds cannot choose to use state funds to purchase services from a religious institution without offending the constitution. This is an incorrect assumption under both Wisconsin and the United States constitutional jurisprudence. Atwood, 170 Wis. at 263-64, 176 N.W. at 228 (concluding that veterans may use state-provided dollars to attend religious schools); Nusbaum II, 64 Wis. 2d at 324, 219 N.W.2d at 583 (concluding that it is constitutionally permissible to use state funds to purchase goods or services from a sectarian institution); Rosenberger, 515 U.S. at 842 (concluding that the expenditure of governmental funds is not prohibited simply because those funds pay for a service that is sectarian in some respects); Zobrest, 509 U.S. at 8 (concluding that religious institutions are not disabled by the First Amendment from participating in publicly sponsored social welfare programs); and Witters, 474 U.S. at 488 (concluding that it is constitutionally per*76missible for a private citizen to choose to purchase a religious education with government funds).
Second, the majority assumes that when a religious school is paid, it has received public funds for the benefit of a religious seminary. This latter assumption appears to be bottomed in part on the concern that there are no restrictions on how the schools can use the monies they receive and in part on the majority's conclusion that sectarian secondary and elementary schools are "religious seminaries." However, if each school is paid no more than the cost to it of providing educational programming for Parental Choice students whom it serves,28 no school will receive a constitutionally impermissible benefit. Atwood,29 1 70 Wis. at 263-64, 176 N.W. at 228 (concluding that payment for rendering a service is not a financial benefit to a religious school); Witters, 474 U.S. at 488 (concluding there is no constitutional impediment to a Christian college's receipt of monies provided by the government under a social welfare program). And, Nusbaum II clearly states, "[T]he court has not accepted the recurrent argument that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends." Nusbaum II, 64 Wis. 2d at *77324, 219 N.W.2d at 583. Furthermore, as indicated in note 18 of this dissent, just because a school has sectarian ties, one cannot presume it is a "religious seminary." Nusbaum I, 55 Wis. 2d at 335 n.33, 198 N.W.2d at 660 n.33.
Another factor on which the majority opinion rests is the determination that the religious mission of the participating schools so infuses every aspect of instruction that state sponsored religious indoctrination is certain to occur. It concludes that "the sectarian aspects of their educational program are intertwined with the secular subjects"; and therefore, there will be a "purposeful infusion" of religion into all aspects of the education provided. This is a factual determination in regard to how religiously affiliated schools will teach secular subjects. In support of this assertion, the majority repeats some mission statements from the exhibits which were attached to the stipulated facts. However, the same documentation provides the following information which would support an opposite factual determination:
Catholic East Elementary School: "Children of all religions and races are admitted."
All Saints Catholic Elementary School: "All Saints Catholic Elementary School is proud of the broad, multi-cultural background of its students. Applicants are accepted without regard to race, creed, or ethnic heritage." (Only one religious person is listed on its staff roster.)
Blessed Trinity School: The staff is made up of thirteen married women, two women listed after a "Ms." designation, and three men, who are not priests or religious brothers. There is no informa*78tion provided about their religious beliefs or lack thereof.
"The curriculum incorporates competency based levels of instruction in the reading and math programs and appropriate grade-level instruction in language arts, science, social studies, physical education and the fine arts. The foundation of our education approach stresses the uniqueness of the individual and generates an appreciation for each child's needs and contributions."
Marquette University High School: "Each year 99% of graduates attend four-year colleges and universities. ... In 1993, Marquette High School recorded 19 National Merit Semi-Finalists."
Divine Savior Holy Angels High School: "DSHA offers a comprehensive and challenging academic program; approximately 95 percent of our graduates attend college. . . . DSHA offers two new state-of-the-art computer labs with 62 fully-configured workstations available to students throughout the day."
Given that information, and much more contained within the exhibits attached to the stipulation of facts, it would be reasonable to infer that the children who would attend these sectarian schools and the professional educators who teach in them would focus on mathematics when they are in math class, on chemistry when they are in chemistry class, and on penmanship when that is the topic of the moment. If they had not done so in the past, the students would not have achieved the academic success shown by the exhibits.
Furthermore, the record before this court does not indicate the religious preference of the teachers of secular subjects in the private schools. Nor was any *79information provided about the type of textbooks used to teach secular subjects. Drs. Fuller and White's report does show that for the public high schools listed in Table 18, the religious affiliation of the students who attended those schools in 1993-94, differed from that of the institution by as much as sixty percent and the exhibits reflect that children of all creeds are welcomed.
Given the conflicting factual inferences revealed by the record, I am mindful that this appeal occurs after a motion for summary judgment. On this record, a court cannot conclude, as a matter of law, that all subjects that will be taught at sectarian schools will be infused with a religious message. Vocational, Technical and Adult Educ., Dist. 13 v. DILHR, 76 Wis. 2d 230, 240, 251 N.W.2d 41, 46 (1977) (concluding that there must be only one reasonable inference that can be drawn from the facts presented before a factual determination may be made as a matter of law). Furthermore, a presumption that religion would be injected in secular subjects was present in Ball, which Agostini overturned, instructing that such a presumption may not be valid in each educational institution. Agostini, 117 S.Ct. at 2010. The Wisconsin Supreme Court has also concluded that "pervasively sectarian" is a factual determination. "The determination whether an institution is pervasively religious is to be made with regard to the entire context in which the institution operates." State ex rel. Wisconsin Health Facilities Auth. v. Lindner, 91 Wis. 2d 145, 158, 280 N.W.2d 773, 780 (1979). Therefore, the conclusion that a statute sponsors religious indoctrination now requires a factual record to support it. However, no conclusive factual record exists here.
*80And in addition, § 119.23(7)(c), STATS., requires the private schools to abide by the choice of each student's parents in regard to whether the student will participate in any religious activity. The statute does not limit "religious activity" to that which occurs in religion class. Parents have the choice to opt-out of all religious activities. Therefore, I am unwilling to presume, unsupported by a conclusive factual record, that the participating sectarian schools will attempt to violate the clear mandate of the law regarding religious activities, simply because some have a religiously focused mission statement. And, given the holding in Agostini, a court should not presume that state sponsored religious indoctrination or a symbolic union between the church and state occurs by virtue of the payments made to parents under the program because it is the parents who choose religion, not the State. Agostini, 117 S.Ct. at 2010. That is not to say that there may not be certain participating schools that are so infused with religious messages that even attendance at a mathematics class would constitute religious instruction, but this record is insufficient to determine how the instructions in secular classes are conducted. Furthermore, individual challenges to the constitutionality of the statute are not before this court. See Tilton v. Richardson, 403 U.S. 672, 682 (1971) (holding that in deciding on a facial constitutional challenge, it is improper to consider only limited hypothetical applications).
The majority concludes that the benefit clause challenge is controlled by Reynolds and State ex rel. Weiss v. District Bd. of Sch. Dist. No. 8 of the City of Edgerton, 76 Wis. 177, 44 N.W. 967 (1890). While I agree that each case provides guidance on the development of benefits clause jurisprudence, neither case is *81dispositive of this appeal and the majority's reliance on them is misplaced.
First, Parental Choice differs from the busing at issue in Reynolds because all parties agree that there was a valid secular purpose underlying the passage of Parental Choice. While in Reynolds, the Court specifically concluded that the act was an attempt to benefit private schools rather than to promote the safety of school children.30 Furthermore, the payments made under the Parental Choice program will pay only for the educational programming services Parental Choice students receive. They will not supplant costs that the schools would have had were it not for Parental Choice.31 Second, later cases have retreated from the broad edicts of Weiss when analyzing benefit clause challenges. For example, Nusbaum I addresses a change in the definition of "religious seminary" stated in Weiss:
On the corollary point of whether the university here is to be considered as one of the "religious or theological seminaries" in this state, we agree that the university, in all of its operations, cannot be considered as a completely secular institution. However, Tilton32 lessens the reach of earlier decisions of this court33 insofar as the first amendment is concerned, and we accept that decision as entirely persuasive, even if not controlling, in establishing a *82difference based on function between various aspects of the university operation.
Nusbaum I, 55 Wis. 2d at 334, 198 N.W.2d at 659 (emphasis added). Therefore, I conclude the Respondents have not met their burden to prove, beyond a reasonable doubt, that Parental Choice violates the benefit clause.
b. Compelled Support Clause.
The compelled support clause of Article I, § 18 states, "[N]or shall any person be compelled to attend, erect or support any place of worship." The majority opinion also concludes that Parental Choice violates this clause, mainly due to Weiss.
"Compelled support" may be examined in terms of participation or in terms of money. In Weiss, it was based on both: participation in a religious activity (Bible reading) that was contrary to the beliefs of some of the students and taxpayers' financial support of the school where the Bible reading occurred. In order to examine the challenge within the words of the constitution, the Court first decided that Bible reading was "worship." Weiss, 76 Wis. at 213, 44 N.W. at 980. And, because that participation occurred in school, the Court concluded that the school became a "place of worship," at least for the time when the Bible reading was occurring. Id. In concluding that Bible reading violated the compelled support clause, it determined that because taxpayers were compelled to pay for the school through their taxes, they were being compelled to support a place of worship in violation of the religious freedoms guaranteed in Article I, § 18. Weiss leaves open the question of whether a school which has religious teaching during a part of its schedule is a *83place of worship when secular subjects are being taught.
In Holt v. Thompson, 66 Wis. 2d 659, 225 N.W.2d 678 (1975), the Court examined a statute which provided for released time from public school instruction so that students could attend religious education classes. Attendance reports were required from the religious organizations on a monthly basis, as the classes were not conducted in the public schools. In this regard, the challenge focuses on compelled support, in the sense of participation. In holding the act constitutional, the Court noted that: 1) participation in religious education was only "permitted," as attendance was voluntary; 2) the parents chose whether a child would attend religious instruction, not the State; and 3) even though the State did require attendance reports, those reports were not to compel attendance at religion classes, but rather to prevent deception by students who were "heading to the local pool hall." Id. at 676-77, 225 N.W.2d at 683. The Court also pointed out that while there might be some application of the statute which would operate to compel a student to attend or support a place of worship, such a challenge could not be made facially to the statute as enacted. Id. at 677, 225 N.W.2d at 683.
Parental Choice complies with the principles of Holt. It does not require any parent to send his/her child to a religious school. That choice is left to the parents. It does not require participation in any religious activity. That choice is left to the parents. The participating schools are required, notwithstanding any religious affiliation which they may have, to admit students on a random basis, with the limited exception of giving preference to siblings already in attendance. Furthermore, if parents choose to send their children to *84religious education classes, that is a choice that was approved by the Court in Holt, so long as the instruction does not take place in a public school.
Parental Choice also does not run afoul of the holdings of Weiss and the later cases which examine the definitions of constitutional terms found in Weiss. Parental Choice provides an opportunity for alternate education for children from lower-income families. The only way in which the State can do that is to give the parents money that is tied to educational opportunity. When that occurs, it does not follow that taxpayers are compelled to support a place of worship. Rather, taxpayers are supporting a social welfare program designed to increase academic achievement for those who need it most. Additionally, if one focuses on the money paid by the State to citizens for social programs rather than on the benefit the citizens receive, one could conclude that many state-funded programs are constitutionally infirm, e.g., state payments for medical care delivered in a religious hospital, state payments for childcare provided in a sectarian nursery and many post secondary educational programs.34
Furthermore, the record presented in this summary judgment proceeding is insufficient for this court *85to conclude, as a matter of law, that the sectarian schools that are eligible to participate are so "pervasively sectarian" that it isn't possible for a parent to choose that his or her child not receive religious instruction. For example, the stipulation of facts provides there were "approximately 89" sectarian schools eligible to participate in Parental Choice during the 1995-96 school year, but the record contains materials from only 51 sectarian schools. No information is provided about the remaining 38 religious schools. There is no information provided about how secular subjects are taught or about the religious persuasion of the teachers who teach them. The factual record presented is just as capable of supporting the conclusion that many of the sectarian schools teach religion only in religion class, much as mass is said in a Catholic hospital each day, but the hospital also provides quality patient care that is not tied to any religious message, as it is the majority's conclusion that there is a "purposeful infusion of religion" in all subjects.
A complete factual record is critical to this court because Nusbaum I directs that we must examine the specific function at issue and the reason for the function before we can conclude whether it is sectarian or nonsectarian. For example, the function of mathematics classes in the sectarian schools and the manner in which they are being taught are questions which must necessarily enter into our consideration of whether an institution is so sectarian that even attendance at mathematics class entails religious indoctrination. Nusbaum I, 55 Wis. 2d at 335, 198 N.W.2d at 660. Additionally, Nusbaum I limits some of the sweeping language in Weiss and Reynolds, thereby giving further support to Appellants' argument that because parents can choose whether to send their children to a secta*86rian school in the first instance and can choose to exempt their children from all religious activities, Parental Choice does not result in compelled support of a place of worship.
One must not lose sight of the reason underlying the compelled support clause of Article I, § 18. It is to prevent the State from making pro-religion choices for its citizens. It is not to prevent parents from making pro-religion choices for their children. The State must remain neutral in regard to religion, neither preferring nor evincing hostility towards it. Parental Choice maintains that neutrality. To paraphrase Justice O'Connor in Witters, no reasonable observer is likely to conclude that by enacting Parental Choice, the State of Wisconsin is endorsing, promoting, compelling or preferring a religious practice or belief. Therefore, on the record before the court, I conclude Parental Choice has not been proven to violate the compelled support clause.
The majority summarizes its conclusion of a constitutional violation in the statement that 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." As set forth more completely above in this dissent, that statement incorporates a factual finding about how secular subjects would be taught in the sectarian schools that the record does not support. The majority also focuses on money, not on the social program at issue. Social welfare programs generally involve state funds. Therefore, it is my determination, that on this record, the Respondents have not met their burden of proving Parental Choice violates the com*87pelled support clause, beyond a reasonable doubt in all possible applications.
2. Article X, § 3.
The Respondents also challenge Parental Choice under Article X, § 3 of the Wisconsin Constitution, which states:
The legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable; and such schools shall be free and without charge for tuition to all children between the ages of 4 and 20 years; and no sectarian instruction shall be allowed therein; but the legislature by law may, for the purpose of religious instruction outside the district schools, authorize the release of students during regular school hours.
Necessary to this challenge is their assertion that any school which receives payments from parents under this program is a "district school" within the meaning of Article X, § 3. The Wisconsin Supreme Court recently addressed this contention in Davis v. Grover, 166 Wis. 2d 501, 480 N.W.2d 460 (1992). There, it was conclusively decided that only public schools are "district schools" and that payments directly to the schools which participated in the initial school choice plan did not transform those schools into public schools. Id. at 540, 480 N.W.2d at 474. While it is appreciated that there are some differences in the two school choice programs, they are not sufficient to distinguish Davis.
3. Article IV, § 18.
The Respondents further challenge Parental Choice as a local bill, under Article IV, § 18 of the Wisconsin Constitution, which states, "No private or local *88bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." This provision was designed to: 1) encourage the legislature to devote its time to laws which affect the entire state; 2) be certain the public had the opportunity to know of the subject matter of legislation under consideration; and 3) avoid the appearance of legislative favoritism and discrimination that can occur with laws of limited applicability. Milwaukee Brewers Baseball Club v. H.S.S., 130 Wis. 2d 79, 107-08, 387 N.W.2d 254, 266 (1986). Challenges based on an assertion that an act began as a local bill are first examined to determine whether the process by which the bill was passed deserves a presumption of constitutionality and then to determine whether the challenged act was a private or local bill within the meaning of Article IV. Davis, 166 Wis. 2d at 520, 480 N.W.2d at 466. There is a distinction between examining the constitutionality of the process which created the legislation and the substance of the law as enacted. City of Brookfield v. Milwaukee Metropolitan Sewerage Dict., 144 Wis. 2d 896, 912-13, 426 N.W. 591, 599 (1988).
The process by which Parental Choice was enacted was proper. The bill was not smuggled or log-rolled through the legislature. It was thoroughly debated on the floor of the Assembly and the Senate and extensive public hearings were held in many locations, such as Milwaukee, Cedarburg, Madison, Portage and River Falls. Interests both for and against Parental Choice had ample opportunity to bring their concerns to the attention of the legislature. Therefore, I conclude that Parental Choice is presumptively constitutional and the Respondents bear the heavy burden of proving a constitutional violation beyond a reasonable doubt.
*89When examining whether Parental Choice began as a local bill, Davis directs consideration be given to: 1) whether it refers to particular people, places or things; 2) whether it involves a prohibited category under Article IV, § 31; or 3) whether it creates a closed classification. Davis, 166 Wis. 2d at 524-25, 480 N.W.2d at 467-68. The third concern, that of a closed class, is the focus here because only Milwaukee students are eligible at present.
The same challenge was made and decided in favor of constitutionality in Davis. The Respondents urge this court to reconsider the issue, notwithstanding Davis, because there have been changes in the statute that undermine that holding. I do not agree. The factors which controlled the Court's decision there remain, and if an appellate court is to modify the conclusions reached in Davis based on the changes in the current school choice program, that must be done by the Wisconsin Supreme Court. Therefore, I conclude that based on controlling precedent, Parental Choice was not a local bill.
Public Purpose.
The Respondents contend that Parental Choice was enacted without a valid public purpose. The public purpose doctrine requires that "public expenditures may be made only for public purposes." Davis, 166 Wis. 2d at 540, 480 N.W.2d at 474. "[W]hat constitutes a public purpose is in the first instance a question for the legislature to determine and its opinion should be given great weight." Warren, 44 Wis. 2d at 212, 170 N.W.2d at 795. And, when public funds are appropriated for use at a private institution, the program must be subject to controls and accountability requirements sufficient to guard the public interests which justify *90the expenditure. Id. at 215-16, 170 N.W.2d at 796. "Only such control and accountability as is reasonably necessary under the circumstances to attain the public purpose is required." Id. at 216, 170 N.W.2d at 796.
There is no dispute that improving the academic achievement of lower-income students is a valid public purpose. Rather, the dispute centers on whether the controls are reasonable under the circumstances. I look to Davis for guidance in this regard. There, the Court examined controls that require: 1) the private schools to provide their students with an education that complies with § 118.165, Stats.; 2) the quality of the education in regard to student progress be subject to measurable standards; 3) parents to choose for their own children that which is most likely to promote academic achievement; and 4) the cost of the program be restricted. Davis, 166 Wis. 2d at 542-46, 480 N.W.2d at 475-77. The controls instituted by the legislature for Parental Choice measure up to those found sufficient in Davis. First, the schools must comply with all the requirements of § 118.165, Stats. Second, § 119.23(7), STATS., sets forth measurable quality standards. Third, the parents of the children are still making the choice of school for their own children, and fourth, the cost of the program is limited by the scope of its application and by the cost of providing educational programming for the Parental Choice students or the per-pupil amount allocated to Milwaukee Public Schools, whichever is less. Therefore, I conclude that Parental Choice does not violate the public purpose doctrine.
Equal Protection.
The NAACP Respondents request this court to conclude that its claim that Parental Choice violates the equal protection provisions of the United States *91and Wisconsin constitutions remains viable and can be proceeded upon, if this court should reverse the circuit court and conclude Parental Choice is constitutional. Because the claims the NAACP made were stayed by the circuit court and because the majority opinion concludes that Parental Choice is unconstitutional, thereby giving the NAACP the relief it seeks, there is no reason to consider the matter further at this time.
CONCLUSION
Parental Choice is a social welfare program which provides educational opportunities (a religion-neutral benefit) to children from lower-income families (a religion-neutral class). Because the money paid to the parents is equal to, and must be spent for, the costs to the participating schools of providing educational programming, the payments do not provide an incentive for parents to send their children to religious schools, rather than keeping them in Milwaukee Public Schools. Additionally, the schools receive no payments "for the benefit of' religious seminaries. The schools receive payments for the educational programming they provide to students who participate in the program.
Although parents can choose to permit their children to exercise this educational opportunity in sectarian schools, they can also choose that their children not participate in any religious activities. If certain schools were not to honor that choice, as the majority suggests may occur because of some mission statements, it does not follow that Parental Choice is unconstitutional. Rather, what follows is a recognition that those schools would not be in compliance with the act.
*92Furthermore, for those students whose parents choose to permit them to attend religion class, a similar choice was approved by the Wisconsin Supreme Court in Holt. That parents are able to make a choice which has a religious component only because of the state payments they receive, is not unique to Parental Choice. Other examples are: 1) the choice a citizen makes when he is treated in a religiously affiliated hospital, prays with the chaplain each day, and the State pays the hospital's bill; 2) the choice a parent makes to have his/her child cared for in a daycare which is operated by a religious organization, and the State pays the daycare bill; 3) the choice students make to attend sectarian colleges, and the State provides the money to permit that choice pursuant to §§ 39.435 and 39.44, STATS. Neither the federal nor the state constitution is contravened by any of these choices because the State is not advancing religion through the social welfare benefit it provides. It is the individual citizen who chooses to use a state social welfare benefit in a setting that has a religious connection. As Justice Douglas wrote, and as was quoted with approval in King:
When the state encourages religious instruction ... it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.
King, 185 Wis. 2d at 46, 517 N.W.2d at 680 (citing Zorach v. Clauson, 343 U.S. 306, 313-14 (1952)).
*93Because I conclude that Parental Choice neither promotes religion nor is hostile to it, but instead leaves religious choices with the parents where they are constitutionally permissible, I must respectfully dissent.
The trial court granted summary judgment to the Respondents without addressing the First Amendment challenges. The majority opinion does so as well. However, because I conclude that Parental Choice violates neither the United States Constitution nor the Wisconsin Constitution, and because a thorough explication and understanding of Establishment Clause jurisprudence is essential to a proper analysis of Parental Choice under Article I, § 18 of the Wisconsin Constitution, the First Amendment is addressed in this dissent.
The Establishment Clause of the First Amendment has been made binding on the states by the Due Process Clause of the Fourteenth Amendment. Committee for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 761 n.3 (1973).
The Miller defendants base their participation in this lawsuit on the Free Exercise Clause when they argue that without the inclusion of sectarian schools in Parental Choice, their First Amendment rights are violated. Because I conclude that the Milwaukee Parental Choice Program, which permits education in a sectarian school, is constitutional, I do not reach their argument.
This form of analysis will hereinafter be referred to as "the Lemon test," with the recognition that it provides a framework for the constitutional analysis of varying issues.
This question was reserved in Nyquist where the payments to parents were not based on the actual expenses they incurred, but instead were pre-set stipends "occasioned by the growing financial plight of such nonpublic institutions." Nyquist, 413 U.S. at 792.
The scholastic aid survived an Establishment Clause challenge, but on remand, the Washington Supreme Court held it unconstitutional under the state constitution. Witters v. Washington Dep't of Servs. for the Blind, 771 P.2d 1119 (Wash. 1989), cert. denied, 493 U.S. 850 (1989).
Widmar v. Vincent, 454 U.S. 263 (1981) (holding that exclusion of religious groups from university's open forum policy violated the First Amendment).
Board ofEduc. of Westside Community Sch. (Dist. 66) v. Mergens, 496 U.S. 226 (1990) (holding high school which allowed student secular non-curricular activities to meet on school property was required to provide equal access to a Christian student group).
Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) (holding school district violated First Amendment when it denied church use of public school facilities to show film series, solely because it presented a religious view of family values).
For a complete detail of the criteria, see § 119.23, Stats.
The amounts payable under the program are determined by the Department of Public Instruction.
The Respondents do not concede Parental Choice is neutral.
The latter interpretation was urged by counsel for the Jackson plaintiffs at oral argument. Counsel for Parents for School Choice opined that Parental Choice is a remedial pro*63gram, and it is only the costs the schools incur in providing those services that are paid to the parents.
This interpretation does not preclude the State from paying less than this amount, as indicated by the financial caps stated in the statute.
This case will be referred to hereinafter as Nusbaum I.
This case will be referred to hereinafter as Nusbaum II.
In 1990, the United States Supreme Court stopped using the compelling state interest/least restrictive means test in cases bottomed solely on a Free Exercise Clause challenge. Employment Div., Oregon Dep't of Human Resources v. Smith, 494 U.S. 872 (1990).
Reynolds v. Nusbaum, 17 Wis. 2d 148, 156, 115 N.W.2d 761, 765 (1962), interpreted the term "religious seminaries," to include parochial elementary and secondary schools (citing State ex rel. Weiss v. District Bd. of Sch. Dist. No. 8 of the City of Edgerton, 76 Wis. 177, 215, 44 N.W. 967 (1890)). However, the interpretation that a sectarian school is equivalent to a "religious seminary" was retreated from in Nusbaum I, 55 Wis. 2d at 335 n.33, 198 N.W.2d at 660 n.33.
The majority opinion does not distinguish Atwood, yet its facts most closely resemble those presented by Parental Choice and it is still good law.
The holding in Reynolds v. Nusbaum was overturned by the amendment of Article I to add § 23, which provides:
Nothing in this constitution shall prohibit the legislature from providing for the safety and welfare of children by providing for the transportation of children to and from any parochial or private school or institution of learning.
Lemon v. Kurtzman was decided in 1971.
Although the Court did not use the term "neutral," it set up the requirement of religious neutrality, both for the specific benefit given and for the characteristics of the class of recipients, if an act was to pass constitutional muster on a benefit clause challenge.
See note 18 above.
This factual finding of the court is grounded in the stipulation of facts provided by the parties.
It also concluded the religious schools were benefited by increased enrollment. Reynolds, 17 Wis. 2d at 156, 115 N.W.2d at 765. Apparently this conclusion comes from the Court's assumption that in some parochial schools the parents were required to pay for some of the costs of busing and, if relieved of that expense, more parents would be likely to choose a religious education for their children than would otherwise do so. In so reasoning, it relied on Judd v. Board of Educ., 278 N.W. 200, 212, 15 N.E.2d 576, 582 (1938), which has been overruled. Board of Educ. v. Allen, 281 N.Y.S.2d 799, 803, 228 N.E.2d 791, 793 (1967).
In the First Amendment section of its analysis, the Court applied the Lemon test.
As noted earlier, the Wisconsin Supreme Court departs from the analytical framework used in federal Establishment Clause challenges, when it reviews a free exercise challenge under Article I, § 18.
It really does not matter whether a school receives more or less than it currently charges students for tuition, so long as the amount paid does not exceed the school's cost of providing educational programming for Parental Choice students-under its care.
At oral argument, Respondents' counsel argued that Atwood was "obscure;" and therefore, of no value in analyzing the case at hand. I disagree. Atwood is a decision of the Wisconsin Supreme Court, bottomed on State payments that citizens could choose to use to attend religious schools. Therefore, an appellate court may not ignore it.
See discussion at 73, above.
See discussion at 62-64, above.
Tilton v. Richardson, 403 U.S. 672 (1971).
Weiss, 76 Wis. at 215, and Reynolds, 17 Wis. 2d at 156, were specifically limited by Nusbaum I in regard to their conclusions that religious schools are "religious seminaries" as referenced in Article I, § 18. Nusbaum I, 55 Wis. 2d at 335 n.33, 198 N.W.2d at 660 n.33.
Section 39.435(5), Stats., provides educational talent incentive grants which may be used in sectarian institutions. Section 39.44(2), STATS., provides minority undergraduate grants which may be used in religious schools. Section 39.45, Stats., provides grants for higher education, based on need, that can be spent at any public or private nonprofit educational institution. And, § 39.46, Stats., provides for payments to Marquette Dental School, structured to meet the concerns of the Court in Nusbaum I where the only choice was a religiously affiliated school and the Court required certain assurances that secular and sectarian teachings would not be intermixed.