Ep. 195: Big Ideas – “A Guide to Designing Educational Choice Programs” with David Hodges

July 23, 2020

We chat with David Hodges, educational choice attorney at the Institute for Justice. He discusses his new report, “A Guide to Designing Educational Choice Programs,” and the Institute for Justice’s recent win in the Espinoza v. Montana case at the U.S. Supreme Court.

Jason Bedrick: Hello and welcome back to EdChoice Chats. I’m your host Jason Bedrick, director of policy at EdChoice and this is another edition of our Big Ideas series. Today I’m excited to be joined by David Hodges who has the title of educational choice attorney at the Institute for Justice, the law firm which just won the landmark Espinoza v. Montana case at the U.S. Supreme Court. David is also the author of a new report from IJ, “A Guide to Designing Educational Choice Programs,” which is the subject of our discussion today. David, congratulations and welcome to the podcast.

David Hodges: Thank you so much for having me.

Jason Bedrick: For starters, perhaps you could briefly summarize what this Espinoza case was all about.

David Hodges: Sure. So, basically a number of years ago the Montana legislature established a tax-credit program to provide tuition assistance to parents who want to send their children to private schools. Basically the program granted a tax credit to anyone who donated to a certain scholarship organization and it would in turn award these scholarships to students who attended these schools. But the thing is that Montana has something called a Blaine Amendment and the Department of Revenue interpreted their Blaine Amendment with something called Rule One to basically ban students from using these scholarships at religious schools.

And essentially when this issue went up to the Montana Supreme Court, the Montana Supreme Court disposed of it by just eliminating the program altogether. And so when we went up to the U.S. Supreme Court we felt that that wasn’t right and that a state could not disallow a school choice program simply because it included religious options. And we were very pleased to see that the Supreme Court agreed with us and basically the nut of it was, according to Chief Justice Roberts, is that a state need not subsidize private education. But once a state decides to do so it cannot disqualify some private schools solely because they are religious.

Jason Bedrick: Just to back up a little bit, most of our listeners I think probably are familiar with the Blaine Amendments, but for those who aren’t what are the Blaine Amendments? Where do they come from?

David Hodges: Sure. The Blaine Amendments refer to these amendments to state constitutions that basically have their origins in 19th century anti-Catholic sentiment. They began prior to the Civil War, but they really took hold afterward in the 1870s when a senator named James Blaine used anti-Catholic sentiment to try to pass something which became known as the Blaine Amendment. And basically what it did was that it would basically ban any kinds of public funds from going to so called sectarian schools. Now sectarian sounds like a sort of anodyne word, but it was really a code word for Catholic. See at the time the public schools, which were known as common schools, essentially had a Protestant monopoly. And when there was increased Catholic immigration into the country, that monopoly felt threatened. And so basically they passed these anti-aid amendments to basically prevent any kind of aid going to non-Protestant so called sectarian schools.

Jason Bedrick: Alright. So the U.S. Supreme Court essentially held that the Blaine Amendments can no longer fulfill what was really their primary purpose which is to prevent public dollars from flowing to religious schools so long as there is a general program that’s available to secular and religious schools alike. And does that mean that the Blaine Amendments were struck down?

David Hodges: It doesn’t mean that they were struck down. They weren’t struck down, but it does mean that they have effectively been neutralized. You’re no longer to rely on one of these Blaine Amendments to impede or prevent a school choice program from being declared constitutional solely because of a Blaine Amendment.

Jason Bedrick: OK. So they’re technically still on the books. They may have some other practical applications, but at least as far as school choice Blaine is no longer an obstacle. Is that correct?

David Hodges: That’s pretty much the case in almost all of the country.

Jason Bedrick: So, actually for many years hanging next to my desk I’ve had a map of the United States which I color coded based on the constitutionality of school choice in each state. Right after the Blaine, rather right after the Espinoza decision, I took it down because the legal landscape has entirely changed. You actually have a great new map in your report which really gives a great overview of the overall effect of the decision. So in which states did Espinoza clear a constitutional path to publicly funded educational choice?

David Hodges: Oh boy, that’s a big question. I think it’s probably easier to look at it from the states where it hasn’t completely faired the path and those states are Massachusetts and Michigan. But for the States that it made a difference in terms of clearing the way for all forms of choice that would be California, Delaware, Florida, Idaho, Maine, Missouri, New Hampshire, South Dakota, Vermont, Virginia, Washington. So quite a few.

Jason Bedrick: Quite a few. So I mean just looking at the map, and I highly recommend that our listeners go to ij.org and find this report, which again is titled, “A Guide to Designing Educational Choice Programs.” You can take a look at this map, the entire map of the United States is in green with the exception as you mentioned. There are two states that are in gray, that’s Michigan and Massachusetts. And then there are four states that are in yellow, that would be Arizona, Kentucky, Alaska, and Hawaii. So let’s start with those two gray states. Why are those states still blocked?

David Hodges: So, these are states, Michigan and Massachusetts, that basically outright prohibit private school choice. So they don’t have… their amendments do not turn on religion. They just flat out ban any kind of aid going to any sort of private school. And so since Espinoza turned on the religious question it does not affect Michigan or Massachusetts.

Jason Bedrick: And then how about these other states? I mean interestingly Arizona is one of these four that are in yellow, but Arizona has some of the most robust educational choice programs in the country. They were the first to adopt the tax-credit scholarship, first to adopt education savings accounts. Outside of a few other states, Florida and Pennsylvania, you’ve got more students actually enrolled in school choice programs in Arizona than anywhere else, but it’s yellow on the map. Why is that?

David Hodges: Sure. So Arizona basically only currently allows tax-credit and ESA programs. The reason for that, the reason why it doesn’t also include vouchers, is a decision called Cain v. Horne. Which basically invoked the Arizona Constitution to prohibit aid to any private or sectarian school. However we think that if another case goes up in the future that the court may reconsider and it may change if they recognize that the benefits, they really don’t go to schools. They go to students and so we think that if the court one day reconsiders the issue that it will also clear the way for vouchers in Arizona. But we don’t want to say that that’s what it does now because it just doesn’t.

Jason Bedrick: Right. So Arizona’s voucher program had been struck down. The tax-credit scholarship, if I’m understanding this correctly, is constitutional because it relies on private funds that are donated to school tuition organizations for which the donors get a tax credit. But those have been held both at the Arizona Supreme Court and the U.S. Supreme Court and Arizona Christian Tuition Organization v. Winn to be private funds and therefore does not trigger the Blaine Amendment. And then Arizona’s ESA in some ways actually came out of the Cain v. Horne decision. I don’t know if you’re familiar with the history of all that, but the attorneys at Goldwater during the oral arguments, they got the other side essentially to concede that if this were broader than just schools… in other words, if in addition to school tuition you could also purchase a whole bunch of other things that it would be constitutional. And so they sort of followed the breadcrumbs of that and came up with the ESA idea.

And so, because it’s not just for private schools, and in fact there are many students using the ESA that don’t go to a brick and mortar school at all. They’re using it for tutoring or textbooks, homeschool curricula, online learning, educational therapy. Because it’s not earmarked just for schools, the State Supreme Court gave that the okay. But what about these other states? Alaska, Hawaii, Kentucky. What’s going on there?

David Hodges: Right. So, Alaska, Hawaii and Kentucky basically only allow a tax-credit program. So basically for the reasons that you say in talking about Arizona. As in Arizona they don’t allow public funds, i.e. through vouchers, to go to any kinds of private or religious schools. But when it comes to tax-credit programs, which involve private money, they’re basically OK with that. And again these are states, or particularly Alaska and Hawaii, where that may change if the courts one day reconsider and decide that, “Hey, these benefits go to students, not schools.” But that’s not where they are yet. Kentucky is slightly different. Basically their state constitution requires that any publicly funded education program must be submitted to a voter referendum. So that would be a voucher program. So, while we think that a legislature could do that, it just seems like quite a big effort, quite a big lift and so it’s better to just stick with the tax-credit option.

Jason Bedrick: So if policymakers are interested in designing a school choice program, whether they’re in one of the green states or the yellow states, and they want to make sure that it passes constitutional muster, what do you recommend that they do?

David Hodges: Well they should call us up. We’re the school choice experts. We know all about these issues. They can go to our website where we have model legislation, both for the tax-credit program as well as for the straight up voucher. And they should contact us and then we can walk them through the different options in their state. We can examine their state constitutions together. Different constitutions have different things that you need to be looking out for. But these policymakers can know that if we have marked their state as green or yellow, that they are good to go. We just ask that they talk with us first so that we can help them shepherd it through.

Jason Bedrick: And I noticed that Maine, Vermont and New Hampshire, they’re highlighted as green on your map. These three states have town-tuitioning programs. In Maine and Vermont these really date back to the late 1860s, early 1870s. They’re the oldest school choice programs in the country. New Hampshire was effectively doing some form of town tuitioning for more than a century, but only in recent years made that clear in statute. But in each of those states the programs can only be used to access secular schools. Religious schools may not participate in these programs. Do you think that the Espinoza decision may have an effect on the town tuitioning, the voucher like town-tuitioning programs in these three states?

David Hodges: For sure. Those programs are squarely in the sight lines of Espinoza. As John Robert said, you don’t have to subsidize private education, but once you do you can’t disqualify some private schools simply because they’re religious. And that’s what these states are doing.

Jason Bedrick: So, here’s maybe a harder question. What about charter schools? Right? You may have a religious organization that would like to apply for a charter school. They want to run as a charter school. Let’s say they qualify on every other single measure except that they are a religious institution or they want to create a charter school that is a religious institution. They’d be willing to have open enrollment just like other charter schools, accept students from all races, religions, and backgrounds. Do you think Espinoza is going to clear the path toward religious charter schools?

David Hodges: So I guess my answer is that that’s not what we argued for in our case and we don’t believe that that’s what the Supreme Court said in the decision. The simple fact of the matter is is that charter schools, although they are non-traditional public schools, they still are public schools. And as such they’re subject to the same restrictions as public schools because it involves government speech. So while we don’t see a path forward for that, it’s hard for us to see how that would end up coming to pass.

Jason Bedrick: Interesting. So what do you think beyond Maine, New Hampshire and Vermont will be the next step in terms of school choice litigation? Or is that the end goal?

David Hodges: Well I mean one of the issues that was left unaddressed in the case that we’ve seen from our school choice opponents is that they’re trying to basically make hay of John Roberts’ status use distinction in Espinoza. We think it’s a pretty thin read.

Jason Bedrick: Could you explain what is that? The status use distinction that Roberts made that Gorsuch vehemently objected to.

David Hodges: Sure. Basically it’s about whether you are being discriminated against because of who you are as opposed to what you were doing. The way that Gorsuch put it in his criticism was that it’s one thing to simply be a religious person, but being a religious person involves quite a lot. It matters doing certain things. And so if you’re saying that you can discriminate… that discriminating on the basis of status is impermissible than you are perhaps implicitly saying that discriminating on the basis of use is permissible. But we think that the way that Roberts wrote the opinion is fairly narrow and it’s been pretty hard to consider what kind of case would come up which would involve use and that would still not implicate the other criteria that Roberts listed in Espinoza. The other side is certainly going to try, but we think it’s going to be a pretty tall road for them.

Jason Bedrick: Are there any other items that you think our listeners need to know? Things that might be coming down the pike when it comes to religious liberty lawsuits that are already in the process of being filed both for or against. What’s next in the religious liberty and school choice litigation?

David Hodges: Oh. I think probably the next cases that are going to come up will probably revolve around the admissions and hiring at various private schools. There has definitely been rumblings about that in certain school choice states and we’re going to keep an eye on that. And they’re also going to be certainly trying to look for different holes in Espinoza, particularly in the use context to figure out what the future looks like. But I think that the bottom line is that there have been some really massive victories for the good guys and I wouldn’t want to be the other side trying to figure out how to operate in this new environment and how to impede school choice programs.

Jason Bedrick: Our guest today has been David Hodges, the educational choice attorney at the Institute for Justice. You can find his report, “A Guide to Designing Educational Choice Programs” on the Institute for Justice’s website ij.org. David, thank you so much for joining us today.

David Hodges: Thank you. It’s my pleasure.

Jason Bedrick: This has been another edition of EdChoice Chats. If you have any ideas for authors you’d like us to interview for the Big Idea series please send them to media@edchoice.org and be sure to subscribe to our podcast wherever you get your podcasts. Follow us on social media at EdChoice And don’t forget to sign up for our emails on our website edchoice.org. Thank you. We’ll catch you next time.