Ep. 246: Legal Updates with Leslie – TN, ME

April 14, 2021

Our VP of Legal Affairs Leslie Hiner discusses two significant school choice cases in Tennessee and Maine.

Jennifer Wagner: Hello, and welcome to another edition of EdChoice Chats. This is our legal edition of the podcast. As always, I am our VP of Communications Jennifer Wagner, and joined by our legal powerhouse Leslie Hiner, whose actual titles here are head of the Legal Defense and Education Center and our VP of legal affairs. Leslie, it’s been a minute since we’ve talked and a lot has been going on. So I think we’ll dive right into it and focus on, I know what’s been taking up hours, hundreds of hours of your time over the last six weeks or so. And that is two really, really important legal briefs in the states of Tennessee and Maine. And the Maine one was up to the big court, up to the Supreme Court. So I will let you take your pick of which one you want to start with.

Leslie Hiner: Thanks, Jen. I’m very happy to talk about both of these cases, because what you said is really true. These cases are extremely important cases. So let’s start with first, the one in state court in Tennessee. In Tennessee, there are actually two cases that are pending against Tennessee’s ESA pilot program, which is a voucher that allows for various educational uses. But one of the cases is still just on hold at the moment. But a second case though, Metro Nashville and Shelby County v. the State Department of Education, that is now up at the Tennessee Supreme Court. So what’s happened in that case, is this: At the trial court level, at the appellate court level, both of those courts ruled against the program. It is now before the Supreme Court. But the only question though, that the court is going to answer, is whether or not this program violates the home rule provision of Tennessee’s constitution. And very specifically, their home rule provision says that the state legislature can’t target a particular county for legislation.

And that language that I just said, it’s in quotes in their constitution, “A particular county.” Well in their federal legislation in Tennessee, there are actually two counties where this program would operate, in Shelby County and also in the Metro Nashville area. So it’s not just one county. So that’s part of the argument, do the words in the constitution, “A particular county,” mean one, or could it be multiple counties? And if so, what are the conditions? So it’s a little obscure from our normal school choice cases where we’re arguing about different types of things. But nonetheless though, this is really critical. So if it’s found that this program violates that home rule provision, then the whole program will be invalidated and the Tennessee legislature will have to start again. Presumably, they would need to pass a program that applies statewide or at least to a significant number of counties in the state of Tennessee.

So, there’s potentially an upside to this. If the legislature could act to help more families, that wouldn’t necessarily be a bad thing. But of course, that’s a big question mark, and it’s pretty tough for those families who, right now, they’re waiting, hoping that they’re going to get this opportunity in Memphis, Shelby County is Memphis, in Memphis and Nashville. But their fate hangs on what is, to many people, an obscure part of the state constitution that not very many people even understand and seems like it really has nothing to do with those families or their kids who just need a decent education. But that’s a situation that we’re in, in Tennessee. So we’re fighting pretty hard to get the court to rule that this is constitutional and help these families. I should also note that in the brief that we filed at both the appellate court level and also the Tennessee Supreme Court, we partnered with our friends at ExcelinEd and their attorney David Powers. And that was a really good collaboration. So if you’re looking for a good brief to read, that one’s a pretty good one.

Jennifer Wagner: Yeah. And you can actually find that on our website. We put out a statement with ExcelinEd and it’s on our media section of our website and you can read the brief at the very end there. Leslie, let us know, maybe if you have any indication, timeline, how long might those families be waiting and how long might we be waiting to find out next steps in this case?

Leslie Hiner: That’s a really good question. The Tennessee Supreme Court has been pretty slow in taking up this case. We expected that we might hear something from them at the end of last year, taking up the case, but we had to wait a long time for them even to say, “Yes, we’re going to take the case.” And I just checked this afternoon, and the court schedule, it’s still not scheduled for any kind of oral argument going forward. I think this case may linger for several months yet. And keep in mind also that so many of these courts are still observing the COVID precautions. And so that’s really slowed up all kinds of work in the courts across the country and specifically in Tennessee.

Jennifer Wagner: Got it. And I think I recall that one of the hearings in this particular case, or maybe it was a different one in Tennessee, was like eight or 10 hours of virtual illegal watching, which I did not envy you when you had to watch that.

Leslie Hiner: Oh no, that was really hard. That was true Zoom fatigue. We were all fatigued at the end. It’s was amazing, but it was great that we could at least get it done and advance justice and go forward.

Jennifer Wagner: We’re all adapting. Yeah, we’ll stick a pin in Tennessee and hope for good things down there and let’s move on to Maine. And this is such an important case. I’ve actually had a couple people write us into our contact forms, asking what they can do and where this is in the process. And it’s such an important case for both town tuitioning, but also in the world we live in now, where we’ve had a Supreme Court decision that allows for religious education very clearly to be part of any school choice program. So if you wouldn’t mind, give our listeners a little update on the case out of Maine.

Leslie Hiner: You’re right what you said that this is a very, very big case, and this has the potential to be an even bigger landmark case than the Espinoza case, which was huge. So the Espinoza case, which arose out of Montana, was very clear. The court said, “If you have a school choice program, you cannot prohibit parents from using that funding to access a religious school for their kids.” That is constitutionally impermissible, that’s discriminatory against religious entities, can’t do it. So what happened afterwards is sort of interesting. We’re seeing now that across the country, there are a lot of states who had restrictive state constitutions, and they were never really able to do anything with school choice, couldn’t do any kind of voucher programs at all. But now they can and they’re thrilled. It’s really pretty exciting to see the activity across the country right now, as a result of this favorable ruling from the U.S. Supreme Court.

But then there are a couple other states, Maine being one of them. And the state of Maine said, “Oh, we’re sorry, but that Supreme Court ruling, that just doesn’t apply to us.” Well, we think it does. And we believe that the U.S. Supreme Court will also believe that their ruling in Espinoza applies also to the State of Maine. Now what makes this case such a big case is the way in which Maine tried to distinguish themselves from the Espinoza case. So in the Espinoza case, when the court said that you can’t cut out religious schools as an option for parents and school choice programs, the court specifically said, “You can’t cut them out just because they’re religious entities. That’s discriminatory.” But in Maine, if you’re a religious school in Maine, where they had the town tuitioning voucher program, you could participate in that program, if, and only if, you act like you’re a secular school.

So if you are a religious school, and you don’t do any kind of religion at all, well, then you can participate in the program, which is weird. Just laying it out in this common sense way, this is a weird thing that they do. But the state of Maine said that they’re not cutting out religious schools, they’re not discriminating based on just their status as being religious, but they are cutting out the religious use of money in the voucher program. So the distinction they’re saying is that in religious schools, kids begin the day with a morning prayer, at Catholic schools, there’s mass. Non-Catholic kids who go to Catholic schools may not participate in mass, but they get a blessing from the priest. They talk about religion. In math class, they may talk about Noah’s Ark and how the animals went on, two by two and two by two times this is how much. They may use religious stories in that way. And the state of Maine prohibits that.

So this goes to a much larger question. In Espinoza, the question, constitutional question, really rested on the free exercise of religion. Can you, as a parent, freely exercise your religious freedom in choosing a religious school? But in the Maine case, it’s the question of whether the state can allow state funds to be used for religious purposes. Now keep in mind that these kids are going to school, and all of these religious schools, they all have to meet the state standards for kids have to learn this in first grade, second grade, third grade. They’re real schools. They add a religious component into the school day, but they provide education for kids. That’s just the bottom line.

So, the question then is it’s also a free exercise question under the first amendment to the U.S. Constitution, but it is primarily more of an establishment clause question under the First Amendment to the Constitution if a state allows public funds to be used in any way whatsoever, even incidentally for any kind of religious use, does that violate the establishment clause? Is that the state establishing a state religion? Now, we think that’s crazy and no, it certainly is not. But it’s an argument that hasn’t been sufficiently decided by the U.S. Supreme Court. There are some cases on this, but they’re not clear enough to allow a state like Maine to say, “Well, we clearly understand where we land here regarding the federal constitution.” They don’t clearly understand that, and they’re not the only state. Most lawyers who look at this case believe that the U.S. Supreme Court is going to take this case because it’s that important. They have more work to do on the First Amendment.

Jennifer Wagner: Yeah. That’s what our brief asks them. And I would say if anyone is going on our website and looking for briefs to read, this one as a particularly great piece of work from Leslie. And I think the remarkable thing to me in this case is that Maine was totally fine with this until 1980. And then they were just like, “No, nevermind, we’re not going to do this anymore. We’re going to kick all these religious schools out. They have to pretend not to be religious, to be part of the program,” which I have to think is a pretty big factor or would be a pretty big factor for the court to consider.

Leslie Hiner: We hope so. That’s right. The state of Vermont was the first big school choice of state. In 1869, they passed their town tuitioning voucher program. And in 1873, the State of Maine passed their town tuitioning voucher program. So you’re right, from 1873 to 1980, including religious schools and their program was just fine. And then in 1980, kind of magically, there was an attorney general who said, “Gosh, I’m really uncomfortable with this. It might violate the federal constitution.” And so lickety-split, the legislation was changed and no religious schools could participate.

I appreciate your compliments about the brief. And I have to mention to people who are listening, that this is a brief that I would really like people to read. It’s a brief that’s different than all the other ones that we’ve done. It’s more in the storytelling type of briefs, which in legal circles is called a Brandeis type brief, after a former justice Justice Brandeis, who talked about the importance of lawyers being able to tell a full story about whatever they’re advancing so that the court could fully understand all the ramifications of the case before them.

And I wrote about Father John Bapst. So Father John Bapst was born in Switzerland, he was a Jesuit priest, but he was sent over to the states to do work. He went to Maine, in the New England area, and everybody just loved this guy. Had a nice following, opened some churches, the Catholics there who previously really didn’t have a priest even, they were just very happy. Everything was going fine until he got to Ellsworth, Maine. And Ellsworth was a real hot place for the Know-Nothings, which was a political movement that was very anti-Catholic, well anti anything other than Protestantism and very strongly anti immigrants. And what happened was this, in the public schools at that time, kids read from the Bible every day, it was part of their curriculum. And they read from the Protestant Bible, which of course is different from the Catholic Bible.

So the Catholic kids going to the public schools said, “So can we read from the Catholic Bible?” They’re very similar, except for a couple sections, they’re very similar. And it was supposed to be to teach the kids how to read, read aloud, that sort of thing. But that didn’t go over well at all and the kids were flatly refused. There will be no Bible read in this public school other than the Protestant Bible. Talk about establishment of religion, jeez. So the kids went to Father Bapst and said, “What do we do?” And he said, “This is the Bible of your faith, but they’re going to make you read the Bible of somebody else’s faith.” And so he went to the school on behalf of the kids and the families and asked, “Could we please work together on this?”

No. In fact, the school board said, “No. If you pursue this, we will tar and feather you.” Well, the kids were expelled from school. All the Catholic kids were expelled from school. So the father then started a school kind of quickly in the chapel, okay, these kids need some education somehow. But nobody liked that either. And so one of the parents sued the state and all of a sudden poor Father John Bapst was in fact tarred and feathered. He was, I think they call it de-nuding, when they take all of the hair off of the body, before they put hot tar on. He was beaten nearly to death. They put him on a rail from a railroad and they carried him out of town and dumped him at a shipyard half dead, because they didn’t like the idea that people should question kids reading the Protestant Bible only in public schools.

But he went on, go to another place. The diocese said, “Yeah, we need to get you out of that town.” But what ensued though was just terrible. The church was burned, the school building was bombed. Just terrible violence happened there. So now let’s fast forward to the 1920s. So now in the 1920s, Father Bapst is long gone. He’s dead and all the crazy people from Ellsworth were also gone. But the story lingered. And so people in the town said they wanted to start a new school and they wanted to start a Catholic school. And they said, “Well, let’s honor this guy who fought so hard for religious freedom. Let’s honor him.” So they did. They opened the John Bapst High School. Turns out, this was a great, great high school. Just really high-performing, kids from all walks of life could go to the school.

It was just great, until, of course, till 1980, when the attorney general of Maine said, “Oh, no, I don’t think we can do that.” Well, most of the kids who went to John Bapst High School were kids who otherwise could not have afforded to go and they were using the town tuition vouchers to go. And suddenly, the school had no students because of the attorney general saying, “Oh no, you’re religious. So we can’t do that.” So the school had to close. So poor John Bapst, again, first he’s tarred and feathered and then-

Jennifer Wagner: He’s shut down.

Leslie Hiner: The school with name in his honor is shut down again. Because you’re religious, you’re shut down, can’t have it. And then there were people who reopened a school, still using the name, but has to be absolutely positively secular. So suddenly, all these kids and the families who really want the Catholic families who really wanted to send their kids to the Catholic school, non-Catholic families who were good with sending their kids to a Catholic school, maybe they didn’t agree with everything in the faith, but they liked the faith-based component and the value of that, suddenly, they had nowhere to go.

So this is the problem that has led to today that all of these actions to keep religious schools out or to keep religious schools from having a prayer in the morning for kids start their day, all of this activity is rooted in the worst of humanity. It’s rooted in the worst of how we discriminate against each other and how we get angry with each other. If somebody else believes something different than I do, that they’re bad, they’re wrong, they have to be stopped somehow. It’s all rooted in that. It couldn’t be a worse thing to affect education. Education should have no part of any of this.

Jennifer Wagner: And it’s a stark reminder that so many people have this myth that somehow our traditional public school system, as we know it today, is rooted in that secular, inclusive, all those words that get used and you don’t have to go back very far in history to the time of Blaine Amendments to find out that, no, in fact it was a religiously based, or at least based on one type of religion. And the reason that they kicked everyone else out, predominantly the Catholics, is because of what you just said. We can only believe the things that we believe, and we don’t want to let other people have their beliefs. And so now we have the system that we have today. Anyway, very frustrating, but hopefully, knock on wood, fingers crossed, your hard work on this brief and our continued legal efforts will be successful and the Supreme Court will take up this case.

Leslie Hiner: Well, I sure hope they do. People might want to take a look at the Clarence Thomas concurring opinion in the Espinoza case where he talked a little bit about the establishment clause and the need for the court to go a little further and really talking about the First Amendment. It’s really great reading and you don’t have to be a lawyer to read it and really enjoy reading it. This is an issue that’s really important, I think, for all of us.

So, the timing now on this case is this, the court will take a look at this case on April the First, but the court has also requested the State of Maine to file a response to this request by April 21. So, I don’t think that the court is going to take any action on the case until after they receive some kind of a responsive filing from the state of Maine. So, I would say maybe in May, we will see some direction from the U.S. Supreme Court, and hopefully they’ll agree to take this case. And then we can really fully vet this issue. I think it’s one that will bring together all sides of the argument on the establishment clause. And again, this is really big for the First Amendment and religious liberty. So I strongly encourage everyone to follow what’s happening with this case.

Jennifer Wagner: Yeah. And for those who are not familiar with our website, it’s edchoice.org, and you can find both of these briefs from Tennessee and the Maine brief of the Supreme Court on our website. I would be remiss in our waning minutes here if I didn’t ask you, Leslie, if you’ve got other states, cases on the horizon. I know we’ve got a lot of legislative activity happening right now, which is fantastic. We’ve had ESA programs introduced in more than 20 states. But of course, every time we get one of those where we need it to be passed and signed into law, then we get legal challenges. So just curious if there’s anything else on your radar right now that our listeners should know about?

Leslie Hiner: There are some cases in Nevada and in North Carolina, for example, but they are somewhat delayed at this time. And there’ve been a lot of threats in public testimony by people who don’t like parents to be empowered with educational choice for their own kids, say, “Well, if you do this, we’ll sue you.” So we’ll see. There were threats for litigation in Ohio and Florida that have not emerged after a couple years. But they’re currently threats again in poor Montana. Of course, Montana has proven they’re up to the challenge. If anybody wants to challenge them, they’ll stand up to it, which is great. Also in West Virginia, a couple of different places. So whether the threats are just threats, trying to intimidate people or whether they come to fruition, we’ll see. But if they do come to fruition, we’ll be there to fight for parents and their right to do what they need to do for their kids and their education.

Jennifer Wagner: Yep. It’s a little bit of job security, knowing that the more we win, the more people challenge those victories, because there’s a lot of folks out there for whom the status quo is okay, is what they believe in. And little by little, over time, we are successfully shattering that on behalf of families. So I commend you, as always Leslie, for the good work that you’re doing over there in the LDEC, if you will, the Legal Defense and Education Center. And we will check in with you probably in about another month for updates on some of those cases you mentioned here at the end, and to see where things are in Tennessee and Maine.

Leslie Hiner: That’s great, Jen. Always enjoy talking with you.

Jennifer Wagner: Likewise. On behalf of all of us here at EdChoice, I’m Jennifer Wagner and thanks for listening.