Ep. 223: Legal Updates with Leslie – SC, TN, ME

November 24, 2020

Our VP of Legal Affairs Leslie Hiner breaks down the latest school choice litigation in the states.

Jennifer Wagner: Hello, and welcome to another edition of EdChoice Chats. This is our legal edition. I’m your VP of communications here at EdChoice, Jennifer Wagner, and I am joined today by the one and only Leslie Hiner, our VP of legal affairs and the head of our Legal Defense and Education Center. Welcome back, Leslie.

Leslie Hiner: Thank you. I’m really anxious to do this podcast, because as we said during the last legal updates, litigation is fast and furious, it’s really moving, so I’m just happy to be able to update people on where some of these cases stand today.

Jennifer Wagner: Well, fantastic. You alluded to our last podcast, which was a little bit ago, and when we recorded that, we did not yet know, obviously you’ve got a lot going on with the pandemic still and the funds attached to some of the federal relief that came down, and we did not know at the time of the last podcast what would happen with respect to the U.S. Department of Education and some of the litigation that they had filed with respect to the way states are allowed to use this money, and whether or not the money could go toward private schools. So why don’t you, I guess by way of starting us out, catch us up now that it’s been a minute since that happened.

Leslie Hiner: Okay. Let’s start with the litigation that was filed against the U.S. Department of Education over the use of CARES Act funds. It’s important for us now to make a distinction regarding the CARES Act. Under the CARES Act, there is something called the Department of Education stabilization fund, and under that fund, another fund called ESSER. ESSER stands for Elementary and Secondary School Emergency Relief fund. What happened previously was that the Department of Education issued a rule that would have allowed a greater proportion of those funds to be used for private schools, because of course they found that in the pandemic, it’s not just public schools that are struggling, private schools are also.

However, the department was sued. There were four lawsuits that were filed. The department lost three of those lawsuits. The fourth one, I think for the most part just went away. But the question was whether or not the department would appeal the decisions. And the answer to that question is no. The Department of Education decided not to appeal those decisions. However, like I said, the litigation just keeps coming.

Also in the last update, we let you know that the South Carolina Supreme Court had a case before it regarding the use of GEER funds. Let’s talk about that. Also, under the CARES Act Department of Education stabilization fund, there is another fund that’s called the Governor’s Emergency Education Relief Fund, otherwise known as GEER Funds. The South Carolina case was regarding the GEER funds and how the South Carolina governor determined that the state should use those funds. It was widely known and our listeners may have heard this language that the governors had been given a certain amount of money from the feds that was discretionary money to use for education.

Well, the interesting thing about the word discretionary is that when you’re talking about federal law, there’s actually a very specific meaning behind it. The discretionary part was that governors had the discretion to take the money or not, but they did not have discretion in terms of how they used it. Of course, there are certain requirements under the law, etc. So litigation was filed saying that the governor had not used the funds properly, and that was the question that was originally before the South Carolina Supreme Court.

Now, when we spoke last, the court was about to hear oral arguments. Well, since that time, the court issued its ruling. Now, the program that South Carolina adopted, and this was by Governor McMaster, was called SAFE Grants. Sounds like a proper name for a program during the pandemic. The SAFE Grants would give money for scholarships for parents to be able to educate their children in a private school, if that’s what they chose. And of course at the time, there were a lot of the public schools that were not doing in-person instruction, but many of the private schools were. And so, parents preferred that if their kids could have in-person instruction in a safe way, thus the name of the program, SAFE Grants.

Here’s the update, the governor lost that case. That simply means that those SAFE Grants, they’re not happening in South Carolina. But an interesting thing happened, in the ruling, the South Carolina Supreme Court made a mistake and it’s a big one. Here’s the mistake. Well, first, let me say that because of the mistake, the governor of South Carolina petitioned the South Carolina Supreme Court for a rehearing of the case, and the United States and the U.S. district attorney also petitioned the court for request to file an amicus brief in support of the governor’s request for a rehearing.

Now, this is why. In the ruling by the South Carolina Supreme Court, they made two mistakes. The one that the federal government is interested in is this, that the South Carolina Supreme Court said, and I’m quoting now, “GEER funds given to private schools for student tuition must be returned to the state treasury if the student leaves the school before the school term ends. The funds then remain funds of the state to be used presumably, however the general assembly chooses.” That’s wrong. Wrong answer.

Actually, there is a federal case U.S. Supreme Court case called Buchanan v. Alexander. Now this case goes all the way back to 1846, and ever since 1846, it has been true that any federal funds given to states remain federal funds. They don’t magically turn into state funds. The only time that a state has full discretion and can keep the money from the feds would be if there was an outright grant, but the CARES Act is not an outright grant program. It’s an emergency relief program for education. And so the states have money to spend to be able to help education, help kids get to school, and they may or may not use up all the funds. Everything is so unknown under this pandemic, but if the states don’t use up all the funds, then the money goes back to the federal government and for distribution to maybe some other states that need additional funds. So federal funds always remain federal funds. It’s a basic provision of the law, and that’s why the United States is interested in getting this corrected in South Carolina.

Now, one other little problem, and this is the one that really gets our attention. The court also said in South Carolina that the funds that would be given to parents through this publicly funded aid program weren’t really intended for parents. The court said that the funds we’re really intended to give money to private schools, and under South Carolina state constitution, the general assembly cannot appropriate funds for a private school. Now, that ruling flies in the face of decades of U.S. Supreme Court cases, including the landmark case, the Zelman case that was out of Ohio back in 2000, and most recently, and the Espinoza case just this summer, the court reiterated in these public aid programs the money goes to the parents. The parents are the beneficiaries, not the schools or anybody else. The money goes to parents on behalf of their children to be used for their children’s education.

We have state court decisions all across this country that also follow the U.S. Supreme Court precedent on this issue, but the South Carolina Supreme Court decided to go a different direction. That’s another little thing that needs to be corrected in South Carolina. So now, we’re waiting for the South Carolina Supreme Court to say whether or not they will grant the governor’s request for a rehearing. I’m assuming they’ll do that, but it’s a court, it’s the law, and you should never really assume anything, but hopefully, the next time we do legal update, we’ll be able to let you know what’s happening in South Carolina.

Jennifer Wagner: And hopefully for those families down there who are looking for a little bit of relief or a lot of relief as it may be in this ongoing pandemic, they will not only choose that, but choose a quick rehearing options so that they can get an answer here. I don’t want to put you in a difficult legal position because there’s no way for you to actually answer this question, but I did want you to maybe highlight, it’s not just South Carolina. There are other states with leadership that said, oh my gosh, we’ve got this money potentially available to us to help out our families in need, whether they’re in public, private or charter schools. I do want to make the point though to listeners that it’s not as though South Carolina is operating in a bubble. They actually were a bit of a trendsetter to some other states.

And while we may expect some litigation in those other states, it’s also worth mentioning that there’s a lot of innovation going on out there right now, and at least from my vantage point here at EdChoice, that’s a good thing anytime you’ve got governors and lawmakers who are trying to help out families.

Leslie Hiner: That’s so right. I’m so glad that you said that, Jen, because there are so many other states that have used money from the CARES Act in the unique ways that their state needs. In South Carolina, the SAFE Grants that would have worked perfectly for the families and their needs in South Carolina, Texas has a different kind of program, so does Florida, so do many of these other states, but what’s really good about it is that the governors have been able to tailor this money within the guidelines that are under the requirements of the cares act to be able to meet the most pressing needs of parents and students in education at this time. And we’re finding that from state to state, the needs can be a little different from one state to the next. So it’s a good thing that there is some funding that they can use, as you said, in innovative ways to meet the most pressing needs. But this case though has really just thrown a wrench in the gears, and I’m quite certain that other states will be watching this case in South Carolina very closely.

Jennifer Wagner: I can only imagine. And I would be remiss if I didn’t, as our VP of communications, try to cross pollinate what we’re talking about here with some of our latest research on exactly what you were just saying, which is that families are all over the place right now on what they want from their learning environment. If you check out our website, www.edchoice.org, we have a monthly tracking poll of parents and the general population, as well as a quarterly teacher poll. And one of the interesting things that we have seen in there is that you’ve got a little bit more than half of parents who are comfortable sending their kids back to an in-person learning environment, but you’ve got slightly higher than that who are worried that they’re going to contract coronavirus, and the one overarching theme that comes through, which I hope to bridge us to our next topic of more permanent school choice programs that are in place is that regardless of what type of schooling they want, in-person, hybrid, online, right now, parents still overwhelmingly want choice.

And I think for us right now, at this point in the movement, it’s important to not just focus on sort of those short-term pandemic related programs that are popping up, but also some of those ESA programs. I know we didn’t get great news out of Tennessee on their ESA pilot voucher, but want to give you a little time to explain what’s going on on the other side of school choice and those more long-term solutions.

Leslie Hiner: Yes. Jen, you’re so right in what you just said. What I find really interesting is that as parents are seeking a whole variety of options or just whatever they can find available to be able to properly educate their kids, and as they’re also trying to figure out what is the best way to educate their kids, what do their children need at this time, I think that going forward, we’re going to find that parents will continue to have a lot more questions than they ever have before about what kind of options can I have to be able to properly educate my child, and that’s a positive thing. COVID has been pretty awful experience for all of us, but that is perhaps maybe one positive note that will come out of it for parents to be more aware of the options that exist or can exist for their kids, because ultimately that will lead to better education for kids.

Now, that said, sometimes we still have to duke it out in court, which is what we’re doing in Tennessee. Tennessee, you may recall from previous update that we lost the case of the trial court, and this was the situation. Tennessee has an ESA pilot voucher program, and it was ruled unconstitutional by the trial court because it violated a unique provision in Tennessee state constitution called the home rule provision. The home rule provision says that the state legislature cannot pass a law that is applicable only to a county.

Now, in the case of their ESA pilot voucher, it applies to Shelby County, which is Memphis, and it also applies to Davidson County, which is Nashville, so it’s more than one, but the court nonetheless said no targeting of these counties. Was appealed to the Tennessee court of appeals, and we did an Amicus brief in that case as well, but the Tennessee court of appeals ruled that the trial court got it right, so the program is still ruled unconstitutional. And we’re expecting at this time that the state will appeal this ruling to the Tennessee Supreme Court and that appeal to be filed yet sometime this month. At that point, then the Tennessee Supreme Court has discretion over whether they will accept the case or whether they will allow the ruling of the lower courts to stand. So again, we have yet more for you to look forward to on our next legal updates podcast.

Jennifer Wagner: We’re ensuring Leslie’s job security and our listenership to this podcast, and it’s frustrating. It’s like a hurry up and wait game where you file litigation or a part of litigation or file an amicus brief. And then you sit and you think, “Oh, those poor families out there that are waiting to sign up for these programs or get this relief,” but we don’t have it near as bad as they do as they play the waiting game.

Leslie Hiner: That’s true. And I should say too, that in Tennessee, before the litigation was filed and the program was halted, there were, I believe it was just under 2,000 families who had applied. We know there are a lot of families there who are waiting, and kids don’t have much time to wait. So I’m really hoping that Tennessee Supreme Court will take this case very quickly.

Jennifer Wagner: Yeah. That’s a really good point. What I find interesting is you’ve got these families out there, and we had this in Nevada when they passed their ESA program as well, that are willing to sign up for a program that doesn’t exist yet. They’re so desperate for something to change that they will sign up for something in the hopes that it will become a reality. Yeah. It’s remarkable. I do want to spend just a few minutes here as we close things out, because we will be back probably in the next month or so, but we’ve gone from a brand new school choice program to one of the nation’s oldest that has been litigated, the Maine. Also, not some great news, but potentially a silver lining with respect to the Espinoza case as we watched that one move forward in litigation. I want to give you a couple of minutes to talk about that one too.

Leslie Hiner: Okay. The case out of Maine is called Carson v. Makin. This was brought by our friends at the Institute for Justice, in particular, Tim Keller, he’s a great friend of EdChoice, and he’s representing parents who wanted to send their kids to a private religious school, but they couldn’t do that in Maine. Now, this summer, we had the Espinoza case. The Espinoza case said that in any kind of publicly funded, generally available school choice program, that parents must be able to choose private religious school if that’s their choice. And if the state refuses that, then that’s a violation of the free exercise clause of the first amendment to the U.S. Constitution. Court was very strong in the Espinoza case this summer. It is a landmark decision that will stand for all time.

However, the state of Maine said, “Oh no, no, Espinoza surely doesn’t apply to us”. I believe it does, but they said, “No, it doesn’t apply to us.” And then the First Circuit Court of Appeals, we’ve been waiting for their decision in this case. First Circuit Court of Appeals agreed, so we lost at the First Circuit Court of Appeals. Now, that’s the bad news, that’s also the good news, because what this does is it presents yet another opportunity to take this issue up to the U.S. Supreme Court. And it’s important for our listeners to know that the question that was raised before the U.S. Supreme Court in the Espinoza case is the same question that is raised in this case out of Maine, Carson v. Makin. We have the situation where the U.S. Supreme Court answered the question definitively, but now another court is coming up and saying, well, it’s the same question, but we don’t think it applies, we don’t think your answer applies, which is a little crazy.

Jennifer Wagner: A little crazy. Yeah. It’s a little out there.

Leslie Hiner: Yeah. It’s a little surprising, but yes. Tim Keller, the Institute for Justice, has said very clearly and publicly that yes, this case will absolutely be appealed up to the Supreme Court, and I can affirm also that I will be drafting this brief in support of Tim’s efforts to get this before the U.S. Supreme Court, and I will be enjoying every minute of drafting that opinion.
Here’s an interesting point that maybe we’ll talk about the next time we do our legal update, but in the Espinoza case, the U.S. Supreme Court gave a very heavy review of the free exercise clause of the first amendment to the U.S. Constitution, and it was really great. They affirmed just the best of the free exercise clause, the answer to a lot of questions that have been lingering for many, many years.

In a concurring opinion, Justice Clarence Thomas, he said, “I agree, however, there’s more work to do.” And he said that there’s more work for the court to do in talking about the establishment clause, which is also part of the first amendment of the US constitution, and all the lawyers, I mean, we all agree with him, yes, there is more for the court to do, so it’s possible that they might take the opportunity in this case, Carson v. Makin to take Justice Thomas up on his idea and really, again, answer more questions about the first amendment to the U.S. Constitution that had been lingering for many years. So this could have a very positive outcome and that’s what we’re hoping for.

Jennifer Wagner: There’ll be a touch of irony to Maine basically saying, “Oh, you know what Supreme Court, we’re not going to do this, even though you were very, very, very clear in Espinoza that if you offer this, you have to offer it to all.” But we’ll have to stay tuned on that one to see if Maine’s obstinance gives the Supreme Court another opportunity to expand or espouse upon the way that school choice operates in our country. We will wait and see on Maine, wait and see on Tennessee, wait and see on South Carolina, wait and see a couple of other states that I know you’ve gotten the hopper with the litigation and amicus briefs. But for right now, I think things ironically do seem like they’re looking up, even though these are not great decisions in the short term, but there could be a great deal of opportunity for growth in the long term.

Leslie Hiner: That’s so true. And the bottom line, and as we always say and want to make real clear, the bottom line is that we’re fighting for parents and their right and their opportunity to choose how their kids are educated and where they’re educated. It’s just a fundamental right of parenthood, and there’s a clear opportunity for states to be able to help parents be parents. That’s what this litigation is about, it’s why we fight so hard and we’ll continue to do that.

Jennifer Wagner: You couldn’t have said it any better, so it feels like a good place to leave it. Leslie Hiner, our VP of legal affairs and the head of our Legal Defense and Education Center.

Leslie Hiner: Thanks.

Jennifer Wagner: Find out more about LDEC and our work in the legal sphere at edchoice.org. And on behalf of all of us here at EdChoice, it’s always a pleasure to be with you. I’m Jennifer Wagner, our VP of communications, and I’ll sign off until next time.