Does Judge Lisa Neubauer agree with Justice Shirley Abrahamson that school vouchers are unconstitutional?

Wisconsin’s very successful and popular school voucher programs are currently under assault by Democratic Governor Tony Evers who last week called for a freeze in the voucher program. For now, the legislature – led by Republican leadership – will stand firm against Evers.

But, depending on the outcome of the upcoming elections, school choice could face a much bigger threat – the Wisconsin Supreme Court.

Wisconsin has an incredibly successful school voucher program; around 40,000 low-income, predominantly minority students use a school voucher to attend a private school of their choosing. In Milwaukee, 84 percent of private schools in the Milwaukee Parental Choice Program are identified as religious. Many of those schools are incredibly successful, and according to a study, Catholic and Lutheran choice schools outperform traditional Milwaukee Public Schools on the state mandated math and reading tests. Religious education works in Milwaukee for many low-income students.

But, liberal judges and attorneys, for decades, have argued that school vouchers are unconstitutional and a violation of the Establishment Clause, which, in short, prohibits government from “respecting an establishment of religion.” This includes Wisconsin Supreme Court Justice Shirley Abrahamson who previously dissented in cases about the constitutionality of vouchers on those grounds.

So, given how Judge Lisa Neubauer has embraced the legacy and ideology of Abrahamson, voters deserve to know whether Neubauer believes the school voucher program is unconstitutional and should be ended for religious private schools.

Over the years, school voucher programs have survived a number of legal challenges in state and federal court. Shortly after the Milwaukee Parental Choice Program was created in 1990 (it originally excluded religious schools), liberal activists sued the program, arguing that voucher program violated various prohibitions on uniformity and the public purpose requirement. In Davis v. Grover (1992), the Wisconsin Supreme Court upheld the program, although Abrahamson dissented.

Most famously, after the legislature expanded the Milwaukee Parental Choice Program to include religions schools in 1995, liberal activists sued the program again. This time claiming that it violated the U.S. Constitution’s Establishment Clause and a similar provision in Wisconsin Constitution because vouchers were being used to promote religious schools.

In 1998, the Wisconsin Supreme Court in Jackson v. Benson held that it was not a violation of the state’s constitution for taxpayer-funded vouchers to go to religious schools. Foreshadowing reasoning that would be adopted by the United States Supreme Court, the Wisconsin Supreme Court held that the choice program is non-religious on its face; nothing in the law requires money to go to religious schools. In addition, the intent of the program was non-religious in nature. It was designed, not to help religious schools, but to help low-income families educate their children and attend a private school of their choosing. The choice was up to the parents; the school could be religious or it could not be.

But, without explanation, Abrahamson dissented, agreeing with the lower courts that the voucher program violated the state constitution’s prohibitions on spending money on religious societies.

Later, in 2002, in regards to the U.S. Constitution, the United States Supreme Court followed the reasoning of the Wisconsin Supreme Court in upholding Ohio’s school voucher program in Zelman v. Simmons-Harris on a 5-4 basis. The Court held that it does not violate the Establishment Clause of the First Amendment for parents to direct public money to private religious schools. Because the Ohio program was neutral between religious and non-religious private schools, parents – and not the state – was making the decision to go to a religious school.

Looking back, what is clear is that if the ideology of Abrahamson, who’s intellect has been praised by Neubauer, would have controlled the Wisconsin Supreme Court, there would be no Milwaukee voucher program. The same could reasonably be said if Abrahamson’s ideology ever regains the majority.

That’s why the upcoming election for state Supreme Court in April between Judge Brian Hagedorn and Neubauer is so important for the future of school choice. In the past, school choice has survived by a single vote, relying on the support of justices who, like Hagedorn, favor interpreting the text of the Constitution and following the rule of law.

With the ideological balance of the state Supreme Court up for grabs depending on the next two elections, voters deserve to know where the candidates stand on how Jackson v. Benson was decided and Wisconsin’s Establishment Clause.

This was a campaign issue before in a state Supreme Court race. In 2007 in her unsuccessful campaign, liberal Linda Clifford against (now) Justice Annette Ziegler remarked that there could be First Amendment issues with school choice and the voucher program, hinting that it was ripe for a legal challenge.

So, does Neubauer agree with other liberal judicial candidates, attorneys, and Justice Shirley Abrahamson that school vouchers are unconstitutional? Voters deserve to know before they head to the polls on April 2.

 CJ Szafir is the Executive Vice President of the Wisconsin Institute for Law & Liberty (WILL). These views are his own and do not represent an official opinion of WILL.