Ep. 260: Legal Updates with Leslie – ME

August 3, 2021

Our VP of Legal Affairs Leslie Hiner discusses an upcoming Supreme Court case out of Maine.

Jennifer Wagner: Hello and welcome to another edition of EdChoice chats. I am Jennifer Wagner, our VP of communications. Joined here today by the head of our legal defense and education center, Leslie Hiner. We’re going to talk a little bit about something very exciting that’s coming down the pike with the US Supreme Court, a case out of Maine that actually could be very, very helpful to the school choice movement. Leslie, I’ll let you take it from there.

Leslie Hiner: Thanks, Jen. Maine actually has a very exciting case as you were saying. The interesting part to me is that this originates out of a program that’s been around for a very, very long time. The state of Maine has had a program called Town Tuitioning since 1873, and very simply with towns that didn’t have any schools. They have a lot of small towns in a very rural state. Then the town pays tuition for kids to go to school, either at an adjacent public school or at a private school. This has been going on since 1873. It’s still one of the earliest operating voucher programs.

Then in 1980, there was kind of a hot shot attorney general who’s like, “Oh, I don’t know. Maybe this could be unconstitutional if we let kids go to any schools that are religious.” Just like that, in a questionable era, questionable conversation around the issue, it was changed. From 1873 until 1980, parents could send their kids to religious private schools in Maine. Now, guess what? Their public school system didn’t fail. The kids weren’t traumatized by going to religious schools. Everything was good. Then suddenly the state stepped in and said no.

It’s been that way ever since. Well, now there are some parents who stepped up and said, “This really doesn’t make any sense at all.” Especially in light of the decision, in the case out of Montana, just this last year, where the US Supreme court said, “If you have a school choice program, religious schools need to be able to participate, because excluding them is discriminatory under the first amendment to the US Constitution.”

The state of Maine said, “Oh no. No, that US Supreme Court decision, now that just doesn’t apply to us.” Now, the US Supreme Court has decided to take this case. I do believe that the US Supreme Court will be the ones to make the decision, whether these laws apply to Maine or they don’t.

Jennifer Wagner: And that’s the really important distinction here, I think, for those who follow this podcast and in the school choice movement more generally is they went pretty far in the Montana case.

Leslie Hiner: They did. Yes.

Jennifer Wagner: If Maine just said, “Okay, we’ll follow that guidance,” this probably wouldn’t have gotten where it is. Now they’re going to be taking up the further issue of religion and schools, and what the first amendment means for that with respect to school choice programs. I’m cautiously optimistic that I think the court will probably, they’ve shown in the past that they are open to the idea of school choice. I would never asked you to prognosticate, because that would be unfair, lawyer to lawyer, and disrespectful of the court itself. I would love for you to talk a little bit about how this case came to be, and also your work with the Institute for Justice and our longtime partner that goes out and takes these cases up to as high as they can take them on behalf of parents.

Leslie Hiner: Yes, that’s a really good point, Jen. Well, let me start with that. The Institute for Justice has been around for a long time. Our foundation has been around for 25 years now.

Jennifer Wagner: Happy birthday!

Leslie Hiner: Yes, 25th anniversary this year. The Institute for Justice has been around that same time and a little bit longer. They have been just champs in representing parents who feel aggrieved by not being able to send their kids to the school of their choice, not being able to send their kids to school where they know that their kids can learn. They’ve been just great defenders of school choice for all these years.

We’re lucky enough to be able to work with them on a very regular basis, which has been just lovely. It’s not just about representing parents and going to court, although that’s big and that’s a huge lift. There’s also a part about working with legislators and working with parents to help them understand what the Constitution actually means and what it actually says, not what some person thinks, kind of wishes it would say, but what it actually says.

Once you know what the Constitution actually says, then you can become very clear about what your individual rights are under the first amendment. That’s the one that we’re always litigating, it seems like. It’s the individual’s right to freely exercise your own faith. It’s free speech. It all revolves around our ability to be free in a very personal way. That’s the Institute for Justice. I love working with them. They’re just great.

They are the ones who are representing the parents in this case out of Maine, so double kudos to the Institute for Justice at this point. Now, what’s happening in this case, that’s a little bit different, little nuanced, and I think it’s important is that the state of Maine is now saying that this is not a free exercise clause case. It’s not about whether parents can freely exercise their right to choose a religious school, but rather it’s an establishment clause case.

Okay. Now, I hope you’re sitting down. You want to listen to this and you’ll scratch your heads, but here goes. Maine says that a religious private school may absolutely participate in the Town Tuitioning program. Parents may absolutely send their children using Town Tuitioning dollars to religious private schools. However, they can only do that if those religious schools don’t let anybody know that they’re actually religious. Can’t look like a religious school, because then that would seem like the state was endorsing that religion.

Now, what I find rather interesting is nobody thinks that, and for the over 100 years that Maine allowed parents to choose religious private schools that actually could be religious, there were no establishment clause issues. Nobody thought the state of Maine was establishing any kind of religion. It’s a little stretch to believe that somehow saying that religious schools can participate as long as they disavow who they are, that that’s okay. That’s really not okay, but this is what’s going to be discussed at the US Supreme Court in this case.

Jennifer Wagner: Let’s talk timeline on that. Obviously they just accepted this case at the very end of, let’s see, we’re in July now. What happens next? How much time will there be? When will oral arguments be? To the best of your guesstimating.

Leslie Hiner: Well, your question is timely. The court just a couple of days ago, granted a request for an extension of time. Now the Institute for Justice and those parents bringing this case, they have until September the third to file their first opening briefs. Clearly the EdChoice legal defense and education center will weigh in on this. We will file an Amicus brief in support of those parents. Our brief will be due on October the third, and then the timeframe unwinds from that.

The end of October is when Maine’s brief will be done, then the Institute for Justice. The parents will have an opportunity to file a reply to that sometime most likely in November. Which means that oral argument in this case, I’m guessing will probably be in the early part of next year. That’s the timeline, but I’d urge people to keep checking back with us and listen to the podcasts, as there’s more to tell and more information to provide you updates on this case. We will do that.

Jennifer Wagner: Absolutely. You can even follow us over on TikTok. Right after we record this podcast, we’re going to get Leslie over and do a couple of TikTok videos to keep people updated about our legal goings on, on that channel. We are @EdChoice.official on TikTok, if y’all are on that platform. Best case scenario? If the court is just, 100% says what Maine was doing was wrong, these parents are right.

What does that mean? Again, I’m not asking you to prognosticate, but what could that mean for other states and for other folks who want to adopt school choice programs?

Leslie Hiner: I think it can mean a number of things. First, if the court is very clear that allowing a religious school to actually just be who they are, while they are also providing a full authorized standard academic education for children, then I think that this could have the effect of sending a message to other states that think that they know better than these schools, and think that they should overly regulate private schools or religious schools in particular, might send the message to them to back off from that idea, which of course is a bad idea.

Just in a very common sense way I’ll add here that there’s really not a problem for each of us to be true to who we are. If a parent chooses to send their child to a school that is religious and true to who they are, don’t ever forget, that’s the parent’s choice. That’s not the state’s choice. That’s not the school’s choice. The only way any of this happens is if a parent decides that the child will be able to learn well at that school. Even with religion going on, that the child will be comfortable and will be able to learn there.

That’s really the bottom line in this. I think that any kind of ruling coming out of the court that’s favorable to these parents will shine a light on that. Now I will add because there may be some discussion in the press about this as this case goes on, that there are other outcomes that are possible. There’s been a lot of chatter about whether a state could directly fund a private school or a private religious school. That question has not been fully answered. That’s still up in the air. There’s been some question about whether a charter school could be a religious school.

I don’t think so. Just editorial comment there, but that question also is lingering out there. I think that most importantly where you want to look is to Justice Clarence Thomas’s concurrence in the Espinosa case, which is the case that came out of Montana last year. In his concurrence, he was very clear to say that the court has done a good job of really talking in very specific ways about the free exercise clause and defining our very clear rights under the first amendment.

However, under the establishment clause, the court has tended to sort of tiptoe around that issue and then to say, “Well, maybe we could decide the case on the free exercise issues. Maybe we don’t really have to get over to the establishment clause issues,” which are a little more difficult when you’re talking about the rights of individuals as they relate to what government does or does not do. I’m assuming at this point, carefully, that perhaps at least Justice Thomas will have an interest in really digging into the establishment clause issues in this case.

Jennifer Wagner: I was joking the other day with someone that some of these justices may already have parts of their opinions written on this one, because they’ve been trying to get to the case that they want to decide for quite some time now.

Leslie Hiner: Yeah. That’s very true.

Jennifer Wagner: Yeah. As always, Leslie, you’ve re-centered the conversation where it matters and what drives us forward as an organization on making sure that parents have all the options available to them for their kids, whatever their faith, their values. If they are not someone who practices a religion, that’s available too, and that’s what keeps us moving forward. Anything you want to add on this case, or we can call it a quick podcast today, if you’d like?

Leslie Hiner: I would just add that we are very, very pleased that the US Supreme Court has decided to take this case. Any kind of lingering issues that may be out there in states about just what a state can do with a school choice program, I do feel pretty confident that those questions will be answered in this case. I think it will also be interesting. I would encourage people to look at Amicus briefs that will be filed in this case, on both sides of this case. I think it will be interesting to see how different people view the first amendment and our own individual rights.

Jennifer Wagner: Well, and you can always check back on our website at EdChoice.org for updates on this case. Follow us on social media, check us out on TikTok as we bravely go forth on that platform. As always, thank you, Leslie, for your time and the Legal Defense and Education Center for all of the work that it does on behalf of parents, on behalf of these programs. Yeah, until next time, on behalf of all of us here at EdChoice, thanks for tuning in for another edition of EdChoice Chats.

Leslie Hiner: Thanks, Jen.