Ep. 232: Legal Updates with Leslie – 2020 Highlights

January 5, 2021

Our VP of Legal Affairs Leslie Hiner takes a trip down memory lane, highlighting the top moments in school choice litigation last year.

Jennifer Wagner: Hello, and welcome to what will be our last legal update podcast for the year of 2020, the year that was. I am Jennifer Wagner, our VP of communications here at EdChoice. And I’m joined as always by our spectacular VP of legal affairs and the head of our Legal Defense and Education Center, Leslie Hiner, who’s going to give us a kind of a rundown of the highs and the lows of 2020 and where some of these cases are.

And it’s important to remember, and we’ll come back to this at the end, that this was one heck of a year for school choice in the legal system with an incredible victory in Espinoza at the Supreme Court earlier this year. So even though some of the things that we may talk about in the next 20 or 30 minutes might not be all that inspiring, we’ve had a great year.

Leslie Hiner: Thanks, Jen. That’s really true. These court cases come up and they can be very depressing for our parents, who all they want is an opportunity to send their kids to a good school where their kids can learn. And yet, they get stuck in some states where there’s litigation that people fighting against the parents’ right to be able to get their kids into the school of their choice. And that can be pretty tough when you’re a parent especially, and for those of us who care about school choice and who are working in this area, it can be pretty depressing for us too. We just see how right it is for parents to have this opportunity for their kids.

But that said, we shouldn’t lose sight of the fact that we have a very strong winning record in litigation. We’ve had some bumps along the road, and we’ve had some bumps along the road in 2020 as well. But nonetheless, we are here to fight for parents in the courts and elsewhere. But from my perspective, happy to fight for the parents. And we also have so many other attorneys who are willing to do the same thing and really stand up for parents. So let’s not lose sight of what’s really good and what’s really important what’s happening with school choice in the courts.

Jennifer Wagner: Absolutely. And I know where we left off the last time at our last podcast, we were talking about some of the cases that are going on right now at the state level. So maybe it’s a good time to give an update on a few of those. I know South Carolina and Tennessee have kind of been turning along. So where are we with those two States, Leslie?

Leslie Hiner: Well, with South Carolina, the last time we did the podcast, we had indicated that the South Carolina Supreme Court ruled that the governor’s use of CARES Act funds to provide what was called safe grants, which was essentially funding for parents to be able to send their child to a different school. The court ruled that that was unconstitutional. Well, the problem with the ruling was that the court also ruled that the federal funds that the governor proposed to use for this purpose, that those became state funds and that you can’t use state funds to give money to private schools.

Now, there are two errors there. First of all, federal funds are always federal funds. They don’t magically convert to state funds once the federal government gives the funds to the States. They always remain federal funds and there are strings attached. So this should be no surprise to anyone of course. But the court erred in that and the court also erred in saying that when money is given by the state to parents for this kind of a choice program, that the parents are just conduits to get the money into private schools.
And South Carolina has a provision saying that money cannot be given directly from the state to private schools, and thus the Supreme Court ruled that the program was unconstitutional. Well, this caught the attention as you might imagine of the governor and also the United States government and its lawyers. So they petitioned the court for a rehearing and said, “Federal money, we can’t let this stand. You can’t rule that federal money becomes state money. It doesn’t.” And the governor said, and by the way, the money that goes to parents goes to parents.

There’s no scheme going on. So, what the court did is instead of allowing a rehearing, the court took the papers that were filed by the governor and by the U.S. attorney and rewrote the opinion and said, “Okay, so federal funds are public funds. And therefore it violates the constitution of South Carolina to give that money directly to private schools.” And then sadly, and this is the worst part that the Supreme Court of South Carolina also has sort of doubled down to say, “When money’s given to parents, it’s really not given to parents. It’s just given through parents to get to private schools.”

Leslie Hiner: Now, this is just about as wrong as it can be. And we’re expecting that at some point when South Carolina enacts broad school choice program, which they’re working on now and have been working on for the last couple of years, there’s likely to be litigation brought by some of the same parties. And when that happens, then those of us who regularly defend school choice programs in the States, then will have the opportunity to go in there full blast and bring in all of the evidence. And there’s years and years worth of case law and other evidence to present to the court, to show the court that they’re wrong about this idea that when the state gives funding to a parent to be able to choose another school that’s funding to the parent.

It is the parent and that child who is the primary beneficiary of that money and none of the money gets to any kind of private school unless the parents say, “I want this for my child.” But at that point, it’s the parent’s choice. It’s not the state’s choice, it’s the parent’s choice.

I look at it this way. South Carolina is in kind of a bad place right now with this recent ruling, but I fully expect the state to continue to go forward to try to provide options for its parents who have been very clear that that’s what they want. And if and when that’s litigated, we’ll absolutely be there to stand up for these parents. And I feel good about our chances at that point to set the record straight with the South Carolina Supreme Court.

Jennifer Wagner: Got it. Well, that’s potentially good news in the longer term, but it’s a real letdown obviously for those parents who were hoping in the short-term to get some relief and some access to those dollars. And we seem to be in a similar situation a little bit west of South Carolina and Tennessee where we’ve obviously also got a case that’s been moving that could potentially enable parents, empower parents in two cities there to access school choice. But that case also doesn’t seem like it’s on the best path forward.

Leslie Hiner: That’s correct. The issue as our listeners may remember is a home rule issue. And under the home rule provision of the Tennessee constitution, it simply says that the legislature can’t target a particular county for legislation. Well, in their voucher legislation, it applies to Shelby County and Nashville County. So it’s Nashville and Memphis are the two areas where the voucher would apply. And the two lower courts said, “No, that’s targeting against the home rule provision.”

And so now just recently, the attorney general of Tennessee filed an appeal up to the Tennessee Supreme Court. We’re waiting to hear if the Tennessee Supreme Court will take the case or whether they will allow the lower court rulings to stand. Now in the event the lower court rulings stand staying that the voucher violates the home rule provision of their constitution. Then the program will be over. So what we’re hoping is that if that’s the path, if that’s where we’re headed, that the Supreme Court of Tennessee would act promptly.

So that then after the first of the year when the legislature comes back into session, then they could revise this language and they could expand it out to all the children in Tennessee, which would make things fine. It would not violate the home rule provision at all. Now we do expect that should that happen, that there will be more litigation. Because there is other litigation that’s pending on other issues in their constitution. But nonetheless though, at least there’s a potential that it could give some help to parents who have waited a long time in Tennessee to be able to get this kind of help for their kids.

So it’s a little bit of a waiting game and that’s frustrating for parents. And to any of the parents who are listening, I’m very sorry about that. That is the situation we’re in right now. And we can’t make the court hurry up. Lawyers can do a few things, but we can’t push the court to hurry up.

Jennifer Wagner: No, you can’t. You can’t push the court to hurry up and in my line of work, I can’t change the narrative overnight, but we wait, we litigate, we communicate. I do want to touch on a couple of other States before we also talk about kind of what you were just talking about is that courts are really slow right now. So it’s getting harder and harder to kind of keep that ball moving. But I know we’ve got one case in Maine and two pending cases in Nevada that are probably worth mentioning and just briefly updating our listeners on.

Leslie Hiner: True. The Maine case is that case may become another Espinoza. This has the potential to be another landmark case going up to the U.S. Supreme Court. And last we talked, we learned that the First Circuit Court of Appeals ruled against parents in the Maine case. But since we did the last podcast, the Institute for Justice, which is bringing the case, representing the parents, they have formally announced that they will be appealing that case to the U.S. Supreme Court.

So that means for everyone who’s listening and really enjoys reading these briefs that go up to the U.S. Supreme Court, which I think are really interesting. I hope everyone does too, but those briefs will start being filed after the first of the year. Now, again, currently there’s some delay in the court system at the U.S. Supreme Court. And so the timing would be within the first few months of 2021. Our listeners can expect to see briefs being filed in that case, including a brief from the EdChoice Legal Defense and Education Center.

And I have to tell you I’m working on it now and I’m actually pretty excited about this case. I think that it has the potential if the Supreme Court takes the case to take that great landmark ruling in the Espinoza case that we got this year and continue it forward to answer yet more questions in the area of first amendment law and religious liberty that still need to be answered. And that would be a very positive thing for these parents, school choice and a very positive thing for all the rest of us who cherish that first amendment and all that it means well.

Jennifer Wagner: Well, and that Maine case too is particularly interesting because it’s such an old program. It’s such an old mechanism of school choice. You know, we’re not litigating something that got passed a year ago or 10 years ago, or even 20 years ago. So really interesting to watch that one play out in the first quarter of next year. And then those two cases in Nevada that we were chatting about earlier. So one relates to the tax-credit scholarship program and the other one relates to their education savings account program. Is that right?

Leslie Hiner: That’s correct. I do want to say something though, based on Maine because you made a really important point. The program in Maine was enacted in 1873. Religious schools participated in that program until 1980 when there was an attorney general who said, “Oh, I don’t know. I’m not so comfortable with this.” And then religious schools could no longer participate. So for over a hundred years, these parents could choose literally any school for their children. And then they were blocked in modern times. So we’re hoping to fix that for them.

But onto Nevada, you’re correct. There are two cases and the two cases are both really similar. They both alleged that the legislature used an improper procedure to pass the bills. In both cases, the allegation is that their constitution says that you need to have a two-thirds vote for certain cases that involve money in expenditure of public funds. But in both cases, the legislature passed these bills by a simple majority. So that’s the issue. It’s a technical, legislative and constitutional issue.

But one of the cases involves the escalator clause that’s part of their tax credit scholarship program. And the other one involves doing away with their education savings account, which is the best in the country unfunded yet, but it’s still an exceptionally good program if they’d actually get off their behinds and fund it and help these parents. It’s just an editorial comment there. So the process is this. The Institute for Justice represented parents in a case called the Flor Morency case. That was the name of the parent. And that case has been fully briefed. It’s just sitting at the Nevada Supreme Court ready to be heard. But that case is being held up because of the other one.

So, the other one involves Republican senators suing Democrat senators. The Democrats are in control of the Senate in Nevada. And so that’s how the case is set up. Where they are right now is that the Nevada Supreme Court has asked both parties to show them why they think that it’s appropriate for the court to have jurisdiction over this case, to have the right to rule over this case. So that will be done. That briefing will be done by the end of January. So I’m fully expecting that some point and maybe February or March of 2021, our listeners can look for us to update them about both of these cases, which we expect will be heard at the same time by Nevada’s Supreme Court.

In the meantime, the tax-credit scholarship program, the funding will be limited. There will be no escalation of funding. It’s uncertain whether additional students will be able to receive any funding until this case is resolved. I think not at this point, but that’s a little bit up in the air. And of course the education savings account where we’re still trying to convince the legislature to fund that great program that over 10,000 parents have been diligently asking, pleading for the last number of years now, please help us. So we may get some kind of answers to this early next year.

Jennifer Wagner: Got it. Well, as we often say, “Hope springs eternal, but hard work gets the job done.” And for all those parents who are out there listening, we all know it can be really frustrating no matter what as this school choice movement expands and moves forward. But I know we were talking a little bit about the fact that right now since we are still in the midst of a global pandemic, a lot of the courts are slowing down, delaying jury trials, delaying in-person hearings. But what effect might that have as we do look forward to all of these cases in the first quarter of next year?

Leslie Hiner: That’s an excellent question, Jen. I’d say, for example, in North Carolina, the voucher program is under litigation and in North Carolina, the court has extended their orders saying no in-person or non-essential hearings for another 30 days. So that should take us into January, into February. Very possible that that could be extended out further. So I’m thinking that case that’s Kelly v. North Carolina Department of Education. That may be delayed quite bit yet.

But in other cases, like in Tennessee, the Tennessee courts were really pretty quick to put their hearings online. I have to tell you though, that first hearing was eight hours long on a Zoom platform. And that was really hard for everybody. It was very thorough though. I mean, I thought it was excellent, but it’s tough. Nonetheless, there are some courts like Tennessee where they have adopted the online platform very well to hold these hearings, but that just doesn’t apply everywhere.

And so it’s a little bit of a mixed bag for parents, but I think that it’s clear that all the courts have indicated that at least during the first quarter of 2021, that people should continue to expect delays. Which of course means that in the second quarter of 2021, there will be delays because there will be some pretty healthy backlogs.

Those of us who are advocating for parents will be making the case that these are not non-essential cases. These are quite essential cases. And we’re talking about the lives of children and their ability to be someplace where they can learn. And that just can’t wait.

Jennifer Wagner: Yeah. I mean, I think that’s the point that if you’re out there and you’re listening to us, obviously, Leslie, you wear the legal hat, right? And so all of your work is briefing and legal research. But for those out there who are looking to stay involved as all of these cases move forward, it’s important to remember that A. All of this work does happen at the state level. So you are dealing with different constitutions, different rules, but you’re also able to affect change.

So just as the courts may be delayed in the first quarter, we’re still going to see a lot of legislatures figuring out how they can go into session, how they can start passing policies. And admittedly, a lot of their focus is going to be on the pandemic, but there’s still an opportunity for you to get involved. We obviously have an advocacy team that is separate from our legal team and our comms team. And there are ways that you can still make your voice heard even as we wait for all of these legal cases to move forward.
And please don’t lose sight of that. On behalf of our advocacy side here, there’s a lot that can be done. And there’s a lot that can be done in the wake of, in the midst of this pandemic because families have so many needs that they didn’t realize they had. And they are in schools that may or may not have met those needs over the past 10 months.

So, Leslie, do you have any advice that you would give to policymakers or legislators as they are looking toward the new year, toward perhaps crafting programs that don’t wind up in litigation?

Leslie Hiner: I sure do have advice. The first thing is, please, if you don’t mind, let me take a look at the legislation when it’s drafted or before it’s drafted so that I can help them actually use the right terminology that will be consistent with their state constitution and prior case law. We’ve been working hand in hand also with the Institute for Justice on this. They also should see these bills and we can be helpful. Because there’s always two different ways to say the same thing and one may be constitutional and the other may not be constitutional. So there’s a way to get it right.

But the other part is and this is the exciting part of course. Because of that huge landmark victory before the U.S. Supreme Court in Espinoza. Now, suddenly there’s over half the States in this country now they have new opportunities to do very broad school choice programs that can help so many parents. Whereas previously they weren’t able to. I had a wonderful conversation with some folks in Idaho and Idaho was in that box. They so desperately wanted to have some expansive educational opportunities for kids there, but they were stuck.

They weren’t able to, because of their Blaine Amendment, which now we all understand was an amendment in state constitutions that discriminated against religion. And now as the U.S. Supreme Court has told us in a way that is contrary to the U.S. Constitution. So now suddenly, Idaho has all kinds of opportunities to help parents. And Idaho is just one state out of so many where legislators now are realizing that they can really be legislators. They can do what’s necessary to help their constituents. And at this time in particular, there are just so many parents who want different options for their kids for education.

We always see in school choice that there are parents who want different options for their kids, because their kids may be in a school where they’re being bullied and it won’t stop, or they’re in a school that’s just it’s the wrong fit for that child. And the child feels intimidated and has a really hard time learning, just needs to get into a different environment to be able to learn well. But at this time, there’s a new concern for parents. And that’s the concern, first of all, about safety. Do parents feel safe sending their kids to the school that’s designated for them or are they uncertain about that?

And if they’re uncertain, then every parent should have the right to educate their child in a way where the parent believes that their child will be safe and secure. I think that’s a basic human right. Let’s not step on parents and say, “No, you have to send your child to a school that you think is unsafe.” That doesn’t make any sense at all, especially when we know that there’s a better way to help parents do what they know is right for their own children.

So that issue, I think, is really going to drive legislators, going forward to be more innovative. And as there are some legislators who may be trying this for the first time, because now they have the opportunity and they may be trying to do even more innovative ideas like micro schools and pods, a lot of different ways of individual learning. They may need some help in making sure that what they’re doing aligns well with their state constitutions.

Boy, there are plenty of us here and here at EdChoice at the Legal Defense and Education Center, we are absolutely ready to help anybody who needs help. And if you’re not sure that you need help, just trust me, you probably needed a little help or at least somebody in your corner to stand by you as you try to help these parents who so desperately want this help.

Jennifer Wagner: When in doubt, please send us an email, give us a call, go to our website and fill out a contact form because we are here to help. And it’s interesting, the safety and security argument, it’s the bottom of Maslow’s hierarchy of needs is those are the basic things that you need to reach and enlightened stage of learning and being. And yet, so often we find that kids are not in the right learning environment for them. And then I’m glad you mentioned micro-schooling, pods.

The pandemic has been awful in most ways, but has also opened up some doors and opened up some eyes to the possibilities that are out there for parents and for families, and for students. So I did right as we head out of 2020 and into 2021, and look in the rear view mirror at Espinoza and a very good year for families, despite all of the obvious reasons that it wasn’t. I have to ask, do you have any new year’s resolutions or for LDEC or for yourself as an advocate for school choice?

Leslie Hiner: Oh boy. Well, I’ve been a little busy. I honestly haven’t thought about new years quite yet, but boy, it’s a nice thought though.

Jennifer Wagner: You can just resolve to get all of your briefs finished. I mean, it could be that simple.

Leslie Hiner: You know, there is that and I will say I am so looking forward to this brief for the Maine case. I’ve already done a lot of research in that case. And I just think that there lies within that case some great opportunity for the first amendment and for parents everywhere. So that’s one those, I guess maybe that’s a new year’s resolution to really give it my all in that case. It can just matter so much to everything that we do. But otherwise have, for me, it’s been a very long time that I’ve believed in the right of parents to have this opportunity to educate their children wherever they the parents believe is the right place. And in the manner in which the parents believe is right for their own children.

I learned at a very, very early time in the movement and this goes back to the 1980s for me. I’m kind of showing my age a little bit here, but yeah. I first started advocating for this in the 1980s. And the first parents I met were parents who were homeless. They were drug addicted. They had dropped out of schooling in the 7th or 8th grade. They were really living a life that was very, very tough. But the one thing that they knew above everything else and they were very clear about that. They did not want their children to lead the same kind of life that they were leading.

They wanted something better for their children. And these parents were the strongest advocates for school choice and for getting their kids into the right schools and good schools. They were the strongest advocates I have ever seen. So it’s very clear to me that when we talk about parents and them wanting this opportunity for their kids, some people say it’s only rich privileged people who want to get their kids in private schools.

But let me be real clear about this. The richest privileged person is on exactly the same plane, exactly the same level as that parent who is drug addicted and homeless and has no education whatsoever. Those two parents align and their interests are exactly the same when it comes to their children. Parents want the best for their children. That’s the bottom line. And there is no reason in this country where we should not make that happen, allow for that to happen for these parents. We know how to do it. Maybe that’s the new year’s resolution. We need to get this done for as many parents as needed and want it in this country. It’s just the right thing to do.

Jennifer Wagner: I was going to say that’s a wonderful place to wind up our podcast as a reminder of the reason that we push for universal school choice, because you don’t know what someone’s certain circumstances might be or what their situation might be. And we believe in parents and we believe that they know what’s best for their kids. So we hope a lot for 2021. I’d be remiss if I didn’t say, please check our website here in the next few days. You’ll have what I come to understand is a very long and thorough legal update on our blog from Leslie about the year behind us, the year to come.

Our website is edchoice.org. You can also check our Morning Consult monthly polling tracker. Which if you don’t believe us that parents want something different than what they’re getting, then go and check out the data because we survey them every month and ask them what they’re looking for. And I can tell you, it’s not what they’re getting right now, which gives me purpose, gives us all purpose here at EdChoice. So on behalf of us as a team, we want to wish you a happy holidays, a happy new year.

I’m Jennifer Wagner, our VP of communications. And as always, Leslie, it is a privilege to share the airwaves with you and all the work that you’ve done for the Legal Defense and Education Center here at EdChoice.

Leslie Hiner: Thank you, Jen, but that goes two ways. Thank you very much for the great work that you’ve done to help us communicate this message to parents and everyone who needs to hear it. It’s been great. That’s what it takes. We’ll do more of that in 2021.