Ep. 194: Legal Updates with Leslie – Espinoza

July 16, 2020

Leslie Hiner, our VP of legal affairs, discusses the recent school choice win in Espinoza v. Montana Department of Revenue.

Jennifer Wagner: Well, good day and welcome to another episode of EdChoice Chats with today, our legal edition. I am Jennifer Wagner, our VP of communications, and I am joined by Leslie Hiner, our VP of legal affairs and the head of our Legal Defense and Education Center. And, oh my goodness gracious, Leslie, it has been quite the month. So talk a little bit about, I mean, goodness, this is probably the biggest thing that’s happened for school choice in what, a decade, the Espinoza case that came down a couple of weeks ago. And if you can just give us the lay of the land and tell us what it means for school choice in America.

Leslie Hiner: Jen, this is a really exciting time for educational choice and also religious liberty, both as it turns out. I remember when the Cleveland voucher case was decided by the U.S. Supreme Court back in 2002, which was Zelman v. Simmons-Harris. And we were just so happy. It was just such a happy day that this Supreme Court confirmed that yes, parents actually have the right to be able to participate in these school choice programs and use funding from the state to send their kids to the private school of their choice. It was just a, it was a wonderful, wonderful time. But from 2002 until 2011 school choice progressed, but it was 2011 though, when things really started to take off for school choice programs. And that’s also when litigation against school choice really took off in great earnest. So we’ve been duking it out with opponents now in the courts at the state level, the federal level for good long while.

But now the number one argument that has been used in the school choice cases, the argument that states cannot provide any kind of funding for a parent to send their child to a religious school, because there can’t be any funding for religious schools. That issue has always been the number one issue that we’ve been fighting. Now we have been winning that in state courts, but it’s been a question that is, well, it’s a difficult question. For a lot of states, legislators were afraid of it, I guess they didn’t know really how their courts would respond. And of course, litigation is scary. It’s hard, it’s scary. There’s a lot of truth in that. And I understand when they say, well, we’d really not do something that’s going to make us end up in court. But with this decision and Espinoza v. The Montana Department of Revenue, the U.S. Supreme Court lifted a big burden of uncertainty across the country. And I think that it will also lift a lot of fear that some policy makers and parents alike had regarding whether or not school choice programs were constitutional, can religious schools actually participate.

The Supreme Court could not have been any clearer in this decision. This was not one of those highfalutin, lots of difficult legal language kind of decisions. This decision was plain and clear. It is against the U.S. Constitution for any state to deny a religious school from participating in a school choice program, couldn’t be any plainer than that. So for those of us who have been duking it out in the courts for all these years, we feel a tremendous burden lifted as well. It’s just a brand new day. Fear is lifted. The burden is lifted and the opportunity for parents has just blossomed.

Jennifer Wagner: But I do, and I mean, what an amazing victory and we’ll get in just a minute to the part that you and EdChoice played in this particular case from the very outset. But right after this ruling came out, I think there was some confusion about the fact that this does not invalidate all of those Blaine amendments that remain on the books in more than a dozen states, but it does open the door for them to be invalidated. And if a state decides to offer a private school choice program, they cannot exclude religious schools. And so what is the next step? If you are a state with one of these Blaine amendments still on the books, what do you do?

Leslie Hiner: Well, there are some states, and it’s just a small handful of states, where they’ve had some prior court rulings that go against this ruling from the US Supreme Court and so it will take some follow-up litigation to fix that situation. But let’s be real clear about this, that’s all fixable. The Supreme Court was very clear about this, that in state constitutions that have Blaine amendments that are sometimes also called No Aid provisions or compelled support clauses, it’s language that specifically says that no public funding can be used in support of any sectarian institution. It’s that language, the Supreme Court said very clearly that those provisions are in conflict with the Free Exercise Clause of the First Amendment of the U.S. Constitution. And when they are in conflict with the US Constitution, they cannot stand. Court was very clear about that.

So even though those provisions may still exist and state constitutions, and frankly, there’s no need for any state to do anything with their state constitution, they don’t need to take those provisions out. They just don’t mean anything anymore. The important thing to note is just because they’re in those state constitutions, those are discriminatory against religion and against the families who opt to choose religious schools and under the U.S. Constitution, that is unconstitutional.

Jennifer Wagner: Got it. Well, that could not be clearer, indeed. I do want to talk a little bit about, again, our role as EdChoice and your role as a lawyer in this particular case, and not just as a lawyer, but I mean, EdChoice was involved way back. When, what, five, six years ago in Montana as a state that you wouldn’t necessarily think that is all that likely that maybe enact a school choice program, but we were there boots on the ground, helping get this program passed. And you’ve been there the entire time alongside some amazing partners, like the Institute for Justice fighting this fight. We drafted an Amicus brief. So talk a little bit about what this means to you personally, as someone who’s followed this case every step of the way.

Leslie Hiner: Oh, I’m really excited about this case. Personally, it’s very fulfilling as well. I see Montana as being like the little engine that could. I first got a call from a nice man named Jeff Laszloffy from the Montana Family Foundation in that state, state-based think tank, and they had been struggling to adopt some kind of school choice program there. And it just seemed like they sort of kind of got it right but they really needed some help to do it exactly right. So Jeff called and in November of 2009, I went out to Montana and that was the time when they adopted a real serious effort to get school choice in their state. Now, the downside for them was that they had governors who even when they pass school choice programs, the programs were always vetoed. So that was a little tough, but they finally passed a teeny tiny little program.

It was $3 million program tax credit scholarship program. Individuals could only donate up to $150 to a scholarship granting organization that would then try to fund scholarships for kids. Now, the good news about that program though, is that it’s completely universal. Every child in that state is eligible to participate in that program. OK, so that was the good news that I to sell people on it and say, “Look, this is good. Yeah, it’s really tiny.” Very few people in Montana, but the principles are really great, but you’re right though, the size of Montana and the size of the program, not too many people were particularly interested. And yet the people in Montana, they knew what they needed and they just weren’t willing to give up. I give them big kudos for that. They had long odds ahead of them, but they stuck with it and they stuck with it. And now look, Montana with the smallest program in the country and the fewest number of people. They are the ones responsible for this giant landmark U.S. Supreme Court case that will stand forever and that will bring this kind of opportunity to parents and families all across the country.

In the very beginning, this case was a little unusual from most. So oftentimes it’s a situation where the ACLU or the teacher’s unions or Southern Poverty Law Center or any of those groups that don’t like us very much, that they will Sue to stop a school choice program. That’s the typical litigation. This was not typical. In this case, the Department of Revenue is responsible for administering the program because it was a tax program and when they adopted the rules, they adopted a rule that said, no religious schools could participate. Now, this was a problem because the legislation did not say that. Legislation said any private school can participate. And Department of Revenue decided to pretend that they were judges and said, “Well, it must be unconstitutional to include religious schools, so we’re not going to do that.”

So the end result was that this lovely woman in Montana, Kendra Espinoza, who has a couple of darling little daughters, she had elected to send her daughters to a religious school. But then when the ruling came around from the Department of Revenue that she couldn’t do that anymore, she decided to sue. And this is where the Institute for Justice became involved in the case. So this was a different situation, this is where the school choice supporters were suing regarding the case to try to keep it going. We won at the trial court level and then we lost at the Montana Supreme Court level. Although I have to say the Montana Supreme Court did have the good sense to say, “Yeah, Department of Revenue, not your authority to rule on constitutionality.” So I’ll give them credit for that.

The rest of this decision was terrible. They went so far as to say that not only that religious schools couldn’t participate, but the court also said, because that’s even in the realm of possibility, this program is dead. We’re killing the whole program. It was just a terrible decision. Just terrible. So the best news about all this is that even though it’s fairly rare for the US Supreme Court to take up the case from a state Supreme Court, the US Supreme Court saw the merit in doing that in this case and that’s what really got the ball rolling. So yes, it’s been a long time. I love the people in Montana. They’ve been just so sincere in their efforts. And so I’m so happy to see now that those families in Montana, there’ll be able to send their kids to the right schools where their kids can learn.

Jennifer Wagner: Yeah. I mean, it truly is a, I guess, not David v. Goliath, but a Kendra v. Goliath story. And I think, one of the interesting things about the decision, too, in the dissent, even the dissenting justices couldn’t really find a good reason to oppose the holding. And so they were like, well, it’s OK. I mean, there’s really nothing to see here because the Montana Supreme Court already did away with the program so we would just be talking about something that doesn’t exist. And I thought I was like, “OK, if that’s the best that you can come up with, then I feel like we’re on solid ground here with the decision as it was written.” So I did, this is all good news, want to ask though, as you mentioned, this was a proponent of school choice bringing this case, but this by no means marks the end of school choice litigation. And in fact might actually mean that we are going to see more challenges to existing programs or programs that are coming online. And so while we can celebrate this ruling, we cannot rest on our laurels, so to speak.

Leslie Hiner: Oh, we can never rest on our laurels. No. I’m quite fond of telling our friends in the private school community that, the same thing, they can never rest on their laurels, ever. They always need to be alert to what government is doing, alert to what opponents are doing and guard what is precious to you. I will say, however that with this win, we have taken the wind out of the sails of the teachers unions, in particular, who were always involved in fighting us on the legal side, because this has been a big part of the litigation and in all of the cases and now suddenly it will not be. It will not be. There is another case that was handed down also after Espinoza that spoke to regulations in schools. And that case was the Our Lady of Guadalupe School v. Morrissey-Berru.

And in that case, which went to the question of the ministerial exception, the question was whether or not a private religious school, in this case, it was a Catholic school, whether they had, autonomy over hiring and firing their own teachers. So that in the event they had a teacher that was perhaps not in line with the faith in some way or whatever it is, that they should have the right to decide who would actually teach the children. And this was questionable under some prior rulings, but under this ruling though, the Supreme Court said, you have your own autonomy under the free exercise clause of the First Amendment to the U.S. Constitution. You have the right to handle your own internal affairs without the overreaching arm of the government coming in and telling you who you can or cannot hire and fire. The court also went on to speak at some great length about the curriculum in these schools and said very plainly, the curriculum in religious schools is based on the faith of that religious school and it is interwoven in the everyday activity that happens within that school and including the classes.

The school will be teaching math, and reading, and science and history and all to state standards. But they will be doing that teaching though within a worldview that reflects their religious views. And the court was very specific to say, that’s fine, that’s fine. And so now it’s no longer necessary as it was previously that a person should have like a title of minister or fulfilling, have a job description that is like a minister, that sort of thing. The court said, yeah, that’s crazy. For government to even step in and try to say what is or not a ministerial function. Okay. That violates the establishment clause just right off the bat, that government really has no rule and telling religion what it is or what it is not.

And so in this case, looking forward, I think any kind of litigation against school choice is not going to involve, trying to kick out religious schools, and it’s not going to involve trying to overregulate religious schools in telling them how they can teach kids and who they can or cannot fire. And those are really massive major points that have always come up in litigation and now that’s behind us. So, I mean, I don’t think for a minute that our opponents are anything less than very creative, so I’m sure they’ll come up with some other creative arguments to use against school choice. They have in recent years, come up with some doozies, but these really major ones that go to the heart of the First Amendment of the Constitution, those are behind us now.

Jennifer Wagner: Rightly so. And I think it’s always interesting to talk to opponents of school choice. And I count many of my friends in that camp. We talk about this issue. We sometimes don’t talk about this issue, but I think that from a communication standpoint and where we come at this issue from an on my team is, this opens the door or keeps opening the door for families who are seeking a faith-based education. I think what oftentimes gets missed though, is that no one is forcing you to send your child to a faith-based school. We’re just making that opportunity available to those who want to pursue it. And if it’s not your cup of tea, then go somewhere else. And I think we cannot overstate that message as school choice advocates of the pluralistic society is tolerant and accepting and inviting of all viewpoints. And I think that’s really both in Guadalupe and Espinoza, what came down pretty firmly and strongly from the justices.

Leslie Hiner: Absolutely. That’s a really important point, Jen, and I’m really glad that you raised that point. When people decide where to send their kids to school, there are some people whose faith is very central to their lives. I’ve met some parents who said, geez, if their kids couldn’t go to their religious schools or their churches schools, and they weren’t quite sure how the kids would get along because praying is a regular part of what they do and within their own faith. And the parents had some real concerns about that. So I understand that. But the other part is that parents also need to make sure that their kids are actually getting a proper academic education. I think that’s tricky as speaking as a parent of two children who learned in opposite, completely opposite ways. My children could not be more opposite in how they learn. And that was a little challenge.

But when we found ourselves in the situation where we needed to remove our kids from public schools, which came at not at the greatest time in our lives, but it was necessary. I started looking at private schools and what I discovered is that there was a local Catholic school that was really excellent. And I realized, oh, that’s really the right school. Kids are going to really learn there. This will be a good experience for them. We’re not Catholic. So we had a whole lot of questions about, okay, so what about the Hail Mary and what about Mass and what about all the Catholic things that we, it’s not part of our faith. What we’ve discovered during that process of sending our kids there was that our own faith was strengthened because the kids then came home and asked questions.

Oh mom, so the Catholics do this, but we don’t do that and so what’s that all about? And so we had these discussions that honestly, I don’t think we would have had otherwise. So it was just, it was a really rich experience. And the kids had this exposure to something that was very, very different from them that was not part of their normal lives and it was enriching and that they were welcome to learn and they were happy. They learned, they got a great education. That’s the bottom line. That’s all anybody is looking for. Their kids to be happy, welcome, and have the ability to learn.

Jennifer Wagner: And that absolutely reinforces to what we always say as advocates is that this is a very personal issue and what works for you might not work for my kids. What works for my best friend might not work for someone that I work with and that’s the important thing. And I think as we kind of wrap up here and I want to give you a chance to offer any last thoughts in just a minute, but I mean, this is a success moment. This is a door opening, barrier breaking moment. And I hope that, obviously there’ll be the detractors out there who try to say that this is wrong and this is anti-public school. But what I hope people can take away from these cases and the work that we are going to continue to do over the next 25 years as we head into our 25th anniversary is that that’s the foundation of what we do, is to make your experience as a parent or a family member who is raising a student your own and give you all the opportunity that you can possibly ask for in terms of finding that schooling option.
And as you said, your kids were totally different. My two kids, same thing. Learn completely differently night and day. Love them both equally, but maybe they need different schooling types. So I think that’s really important. I do want to give you a couple of minutes to kind of wrap up and an offer any last thoughts on the Supreme Court’s action or just what this all means, but I hope people can take away from this situation that what we’re doing here is trying to expand opportunity for everybody.

Leslie Hiner: Yeah, that’s right, Jen. You hit the nail on the head with that one. That’s exactly what we’re all about. I think that there are a couple lessons that are important from this experience. And the one just thinking back to Montana is that an individual can make a difference. This is definitely the story of just a handful of people who stuck to what they knew was right. They were willing to stand up for it. They stuck with it and the result is something really momentous and really great for people across the country. One person can make a really, really big difference and that’s what happened in this case. So the other part is that I’m realizing now that with these big questions now being resolved by the Supreme Court, with this burden of, is it constitutional or not, now that’s been lifted. With that lifted in states, as they now take a fresh look at school choice instead of thinking first, oh, I don’t know. This is going to be difficult. People aren’t going to like it. They’re going to sue us. Oh, I don’t know, which has always been part of the discussion.

Now it won’t be part of the discussion. And instead, I think policy makers across the country will have this brand new opportunity to actually just look at this question, which is, what do we need to do for the families in our state? How can we help families access the education that they choose that is the best education for their kids to be able to learn. And that’s it. So a lot of the distractions that hit these legislators for all these years will be gone.

So I think the upshot from that is that the school choice debates in states will probably be a lot less contentious in some ways, but definitely a lot more focused because now legislators can focus on the only thing that really matters. Do the parents in their state need help to be able to access educational opportunities for their kids? And if so, which is the case in every state, and if so, then which variety of school choice opportunities should we adopt to help those families make sure that these kids can learn and that the kids in our state, once they graduate from high school, they’re going to be prepared to be successful adults no matter what they choose to do after high school. That’s it, that’s the peer question. And that I think is really, it’s pretty exciting because people can get to the question that actually matters. I’m looking forward.

Jennifer Wagner: Yeah. And that conversation could not be coming at a better time as all of us, as parents are reeling from the coronavirus pandemic and our schools being appended, unless you were already in a virtual or homeschooling environment. And I’d be remiss if I didn’t self-promote a little bit. If folks listening want to see the latest data on what people think about school choice, how they’re coping with e-learning, how many parents are actually looking at making a change or potentially home-schooling. We have a monthly tracking poll on our website, edchoice.org. We also have a quarterly poll of teachers to find out where their heads are at and what they’re thinking in terms of schooling and schools reopening. So if you’re interested in that sort of angle, please check out the Public Opinion Tracker on our website, edchoice.org. And I think, Leslie, just a huge round of applause for you, for Tim Keller and all of our friends over at the Institute for Justice and all of the heavy lifting and hard work that you’ve done to make this day, make this case a reality.

I think, as a school choice advocate and on behalf of school choice advocates, a huge, huge thank you for being here today to talk about this and for all the work that you have put into this over the years.

Leslie Hiner: Oh, that’s nice, Jen. Thanks. This is really a labor of love, and I’m glad you mentioned the Institute for Justice, Tim Keller, and originally from the first day of the litigation, Dick Comber, who is now retired from the Institute for Justice, but he’s one of the guys who also has gone to bat for us for many decades in school choice. And now Tim’s taken over the reins from Dick and they’ve been such wonderful partners. I just can’t say enough good about the Institute for Justice and the folks there. They’ve been quite wonderful. I mean, this has been a labor of love, There’s no question about it. So pretty happy today. Thank you.

Jennifer Wagner: Well, thank you. And on behalf of all of us at EdChoice, I want to thank those who tuned in for this podcast and thank you, Leslie, and all your work with LDEC. I’m sure this is not the end of our podcasting about all the litigation and legal issues. But my goodness gracious, I sure hope you get to go and have a glass of wine and celebrate this amazing victory.

Leslie Hiner: I’ll do that. Thank you.

Jennifer Wagner: All right, well, thank you to everybody for listening. And this is another episode of EdChoice Chats with your host, Jennifer Wagner, our VP of comms, and Leslie Hiner, our VP of legal affairs and head of our Legal Defense and Education Center. So thank you everybody. And thank you, Leslie.