Ep. 313: Legal Updates – April 2022

April 7, 2022

In this update, we hear about progress being made in litigation in the states.

Jordan Zakery: Hello, our listeners, and welcome to another episode of our EdChoice Legal Podcast. The date is March 29th, 2022, and we are joined with Leslie Hiner, our VP of Legal Affairs and Lauren Hodge, our Director of Legal Affairs. I’m your host, and one of our State Relations Directors, Jordan Zakery. Having two experts like you here today, I was hoping we could take a little bit of time to look back and look forward at school choice litigation, particularly to get updates on the many cases we’ve been following. So first, I want to start with our legal eagle, Leslie, to give us an update of many of the school choice cases she’s been working on and following so far.

Leslie Hiner: Thanks, Jordan. And hello, everyone. Sometimes I get questions from people about when do we offer amicus briefs and legal support for different cases, and what are the cases that we’re following? And so, to answer that question, whenever a school choice program is challenged, those are the cases where we’re most likely to offer amicus briefs, some legal, strategic help, and to pay close attention to those cases. Now, sometimes we do get involved in some other cases that are related issues to school choice; but primarily though, we are all about defending a parent’s right to choose how and where their children are educated. So, I’d like to bring you up to speed a little bit on the cases that we’re following, and also where they stand in the process. The law can go in a hurry or really slowly; and a lot of these cases are going slowly, so I just want to update you. First one, the Council for Better Education v. Johnson; that’s a case that is before the Kentucky Supreme Court currently. Kentucky’s new tax credit-funded Education Savings Account, which is the first of its kind in the nation, that’s being challenged primarily by public school districts. That case has just recently begun to move. The Supreme Court has all the documents from lower courts, so they’re ready to go. We do intend to file an amicus brief in this case. And just to give you a sense of timing, our amicus brief will be due on June 7th of this year. So we are, of course, on one side of the case, so that gives you an idea that this case in Kentucky probably won’t be really wrapping up until the fall or even later in the year. Next, we have Bethel Ministries v. Salmon out of Maryland. This was a case where the Bethel Academy was booted out of the voucher program because they had a handbook that said what they actually believed; and what they believe runs counter to the state’s sentry laws. The court ruled in favor of the school. I said, “No, no, no. You can’t discriminate against a religious school for stating factually what they believe.” So they won that case. Right now, they’re still concluding some negotiations over fee settlements and that sort of thing. I could tell you from a legal standpoint, for me, that says the case is done, but for the paperwork. But every now and again, as they say, a case isn’t over until the fat lady sings or something like that. Anyway, I’m still watching it, just until it’s done, and we know they’re okay. Next, we have the Carson v. Makin case out of Maine. That is the one before the US Supreme Court. That decision is pending. I’ll speak to that a little later in this podcast, but we still expect that that decision, we may not see that until the end of June. I think especially with Justice Thomas recently having been ill, and he’ll have a little catch-up work to do, so I don’t expect to see it before the end of June. Kelly v. the State of North Carolina. In North Carolina, they have vouchers, and vouchers were ruled several years ago to be constitutional in North Carolina. However, the head of one of the teachers unions there has sued over how the voucher program is applied and how it’s implemented. But that case has been hanging around; it’s not moving at the moment, so we’re not looking for anything in the near future. Next, we have the Columbus City School District v. the State of Ohio. The Ohio Coalition for Equity and Advocacy brought this case. It’s primarily a funding case, but it also brings in other issues. That case is in discovery for the entire year of 2022. So, if you’re interested to see how things are going to turn out for vouchers in Ohio, just relax and check back with us next year. We won’t have a trial until next year. Next, we have the Bishop of Charleston v. Adams, and also the Bishop of Charleston v. Orangeburg County. These cases Lauren will address here next, but I can tell you the second one, the Bishop of Charleston v Orangeburg County, that case is being held in abeyance until litigation has concluded in the first case, Bishop v. Adams. And in that case, pointed briefs are due on April 19. So that case goes forward; that is going to go quickly. So you should tune back in on a regular basis here if you are interested in that South Carolina case. Next, we have Metro Nashville v. the Tennessee Department of Education. Their new voucher ESA program in Tennessee was sued. The issue is whether it violates the Home Rule Provision of the Tennessee Constitution. And that case, they had oral argument, I think it was about a month ago. Yeah, a month or so ago; but the decision is still pending before the Tennessee Supreme Court. We do expect that decision to be forthcoming. So that’s another state where if you’re interested in Tennessee, you should check back with us on a regular basis, and we’ll let you know as soon as we get the decision. Next is Vitale v. Bellows Falls Union High School. That case is just now proceeding before the Vermont Supreme Court. Vermont has an interesting situation, where there are some kids who live in towns where the town itself doesn’t have its own school, and so those kids are tuitioned by the town to attend another school, private school, or another public school. But if a child does not live in that type of town, then there’s no choice of going to a private school. So there’s a little provision in their constitution and from a prior case that indicates that education in Vermont must be equal. So all the students must have equal opportunity to access education, and they don’t quite have that. So the case is to equalize education in Vermont, so that all children have a full opportunity to attend the schools of their choice. That case is just beginning before the Supreme Court. And so, this is another one where I would expect that later this year, maybe in the fall, you can expect to see some action in that case. And finally, there is Beaver v. Moore. That case is challenging the biggest, best, boldest in the nation Education Savings Account that was enacted by West Virginia. In that case, that is moving pretty quickly now. That’s in the circuit court of Kanawha County in West Virginia. And the motion to dismiss is to be filed on April 4th, so this next week. If you’re interested in West Virginia, that case is proceeding quickly, is starting to move; so please check back with us.

Jordan Zakery: Leslie, thank you for all of those updates. And yeah, it sounds like for our viewers, make sure you jump on here next month, because things are moving. And speaking of that, we have Lauren Hodge; and Lauren, she’s worked in South Carolina as both a State Team Member, and now she’s working in South Carolina as part of our legal team. And she has some post-Espinoza updates involving their Blaine Amendment that she would like to with our viewers.

Lauren Hodge: Thanks so much, Jordan and Leslie. I’m just… I’m so glad there is so little work to go around. Obviously, there is nothing going on in the legal world, and we have all of this time. And I say that obviously in jest; my goodness, it is a litigious world that we live been. So, God bless the lawyers and the people who keep suing, I guess, because it keeps us employed.

Leslie Hiner: Now, Lauren, we don’t often hear, “God bless the lawyers.” So thank you for that.

Lauren Hodge: Hey, it might be my own self-interest speaking out here, but it is a busy, busy, busy year. And I think what we kind of wanted to touch base on in South Carolina is kind of the first, what I would say, maybe test balloon that we’ve seen post-Espinoza. So, for those that are following the legal matters, you know that there was a landmark decision in Espinoza from the US Supreme Court last year. And this is really kind of the new line of case law that will hopefully encourage and facilitate a clear instruction from the court about the ability of funds to go to those schools, about these programs to be fully funded. And so, we’ve been watching that case very closely. But in the Bishop of Charleston v. Adams in South Carolina, they took a step, and tried to sue for the removal of the Blaine Amendment based upon the religious animus. So, for those of you that are familiar with the case line of Espinoza, you know the history behind Espinoza and behind the Blaine Amendment, largely being that it was an anti-Catholic animus that started the Blaine Amendments; the concern about Catholic immigrants come coming over to America, and dispelling out the Protestant beliefs, or somehow causing that population to get concerned. And so, you had the Blaine Amendments which were introduced, that prohibited that public aid to religious institutions. And so, what South Carolina did, is they took kind of the actual local, state history behind their Blaine Amendment and said, “Based upon this anti-Catholic animus, this shouldn’t stand in the post-Espinoza world.” And so, they were unsuccessful in that argument at the district court level. It now will go up to the Court of Appeals; so this is a case that will be played, not in state court, but in federal court. We will be watching and listening to that one. And Leslie, as we think through in the kind of post-Espinoza world, part of this whole case is revolving around that question of, “Will it even be necessary? Will we even be having this conversation about Bishop of Charleston v. Adams?” Because we have another big case coming up before the US Supreme Court. So what do we need to be listening to, Leslie?

Leslie Hiner: Well, the big case, and this is the big one. I’d like to remind our listeners about this Carson v. Makin case that arose out of Maine. As a reminder, Maine has a school choice program that is similar to Vermont. It was just enacted a few years after Vermont in 1873; and kids who live in a town where there’s no school are tuitioned to a school of their choice. But you spoke about the religious animus that really motivated the Justices in the Espinoza case to move to protect our religious liberties under the First Amendment. That really runs deep. So in Maine, the issue there is that Maine said that they don’t have to follow the Supreme Court’s ruling in the Espinoza case that you just spoke to; that they are free to tell religious schools that they can participate in the choice program there, just as long as they don’t say anything religious. Well, that’s ridiculous. I still don’t know what else to call it but ridiculous. But it is what it is. And so, now we’re litigating this, and the question is, “Is there any prohibition, constitutionally, for a religious entity participating in a publicly funded program? Is there anything that would block that religious entity from actually being itself, being religious, or using the funds for any religious purposes?” That’s the question on the table. Now, to be honest with you, the Espinoza decision, it was such a big decision for many reasons. First, there were so many kids in so many states that don’t have any school choice. And they were really blocked by, as much as anything, fear of litigation over the religious issue. But Espinoza, it just really opened up the doors for so many kids. We’re seeing so many states now that are acting to bring choice for their kids. But that case was a pure First Amendment, religious liberty, free exercise of your faith question; very important to the First Amendment and our basic freedoms. The Carson case goes to the question of the Establishment Clause. Does it violate the Establishment Clause for a state to allow a religious entity to participate in a publicly funded program, if that religious entity does things that are religious while they are using public money? Sometimes we can lose sight of what else matters in these cases. Protecting our rights under the First Amendment, free speech, free exercise is terribly important; but what’s also important are the families and the children who are involved in these cases. A case in Maine, they have this just horrendous history of the time when public schools were Protestant; and that was for over a hundred years, and the Protestant Bible was read in schools. And there was a case in Maine where, at the time when there were a lot of Catholic immigrants, and there was a lot of angst and a lot of anti-immigrant sentiment, and then the Ku Klux Klan got involved in it, and the anti-Catholic thing, all of that; there were some kids going to a public school who were Catholic. And the Catholics have a different Bible; similar, but it’s different to the Protestant Bible. And so, the school said that they were using the Bible as a way to teach kids how to read. So the kids said, who were Catholic, “Well, can we read from our own Bible? Is that okay?” And the school said, “No, you demon immigrant. No.”  It was just awful. They were cruel and arbitrary and just horrific. So, there was a priest in town named Father Bapst; and the kids came to the priest and said, “What do we do? They won’t let us go to school. And if we go to school, then we have to violate our faith. What do we do?” So Father Bapst very quickly put together a little school at the Catholic church there in the chapel, just so these kids could continue their education without having to violate their faith. Well, funny thing; the people who didn’t like the Catholic kids wanting to do something different in their school, yeah, well, it turns out they just really didn’t like the Catholics. So they fire bombed the church. That was just for openers. Then they went after Father Bapst; and they tarred him, feathered him, carried him out of town on a rail; left him for dead out by the shipyards. Thankfully, he did have some friends. One in particular, was a war hero; found him, nursed him back to health. And the interesting part of this story too, is this Father Bapst, he was a rather unassuming man, just wanted to do good for people. He went on to become the first President of Boston College. This was a man of real integrity, who was persecuted for his faith, and persecuted for helping children find access to education that was consistent with their own values, with their own faith. That’s really what these cases are about. It really comes down to our own human dignity, and are we willing to accept and honor the human dignity of somebody who’s different from us, who has a different belief? Can we all function together under the same constitution with the same rights? Can we do that? That’s a very big question that is part of these cases. And at least in my mind, as big as any question looming, as I’m awaiting that decision from the Supreme Court and the Carson v. Makin case. So, I encourage everyone to check back with us. Boy, as soon as we get that decision, you’ll know it. We’ll be shouting in front of the rooftops. Hopefully, it’ll be good. I have some faith in the Supreme Court. They’ve taken the First Amendment very seriously, so that’s good for all of us. But again, we’ll give you all the details that you need and the updates on the legal world. But let’s never lose sight of why this is important. It’s the law that is the foundation of our basic rights as Americans, and it’s the lives of children and our own human dignity.

Jordan Zakery: Leslie, I think we can all agree with that. And we really are hoping that some of these cases fall in the right direction; they fall in a way that empowers students, that empowers families, and empowers opportunity for everyone. We’re going to go ahead and conclude this month’s Legal Update. But as Leslie said, as Lauren said, tune in, there are many, many updates coming. And until next time.