Ep. 318: Legal Updates – May 2022

May 5, 2022

Lauren Hodge joins the show to talk about a couple of case updates including an update on Beaver v. Moore out of West Virginia.

Jordan Zachary: Hello, and welcome to another episode of our EdChoice Legal Podcast. Today, we are not joined by our VP of legal affairs, Leslie Hiner, but we are joined by our wonderful director of legal affairs, Lauren Hodge. And of course, I’m Jordan Zachary, our state relations director. So today, we’re going to pick Lauren’s brain over a couple of cases. And first I want to start with an update on Beaver v. Moore out of West Virginia. Lauren, can you tell us a little bit about what’s been going on?

Lauren Hodge: Litigation abounds, and I should say without Leslie being here, I feel like the kid that has been left in the store without the parent. So Leslie, when you inevitably do listen to this one, know you were missed and know we are thinking of you, but thank you for trusting us with this great responsibility of the legal podcast this month. So let’s talk a little bit about West Virginia. Those who have listened to this podcast know West Virginia passed the most expansive education savings account program in the nation. It was sued, and so there were several pending motions that were kind of coming through and happening. And so it was set to be before Judge Bailey in Kanawha County. And so before judge Bailey was a motion to dismiss, a motion to intervene, motions to appear pro hac vice. There were motions for judgment on the pleadings. There were just a whole host of a variety of motions here. And so all of this was set for a dispositive merits hearing for April 19th. And so lawyers were in total panic, given the absolute variety of motions pending before the court, as well as how to best respond, arguments, backup arguments, those types of things. So it was a very kind of interesting scheduling order to have all of these pieces pending before a single judge with a hearing date, without a scheduling order or without discovery having been done. So just a very interesting kind of way to handle it. And then it ended up happening that the judge recused herself. And so the new judge was appointed and now these matters will go before the new judge. The April 19th hearing has been vacated and it will be reset for a new hearing, I believe, in June. So for right now, that West Virginia Case is still progressing. I anticipate that we’re likely going to see similar motions as what has already been filed, motions to dismiss, motions for judgment on the pleadings, as well as intervener motions, motions to appear, those types of things. So I anticipate that’s going to happen before the new judge, but hopefully with a scheduling order in place that kind of gives some clarity into how best to proceed because it is an emotions-heavy case at the moment. So stay tuned. I anticipate in the summer, we’re going to hear a little bit more about what’s going to happen and what’s going on.

Jordan Zachary: Wow. Tons of emotions, I’m hearing. Lauren, for our listeners, could you tell us a little bit why we have a new judge, why there was a recusal?

Lauren Hodge: Absolutely. So there was a recusal form that was filed, and that was largely because the judge deemed that she had a potential conflict of interest due to an association through her family with plaintiffs in this case. So just a very standard recusal. These things happen for those who are involved in litigation and have seen it, you know that these things happen frequently. It’s just part of the way the law works, so the judge was like just out of that cautiousness recused and then a new judge was appointed at random as is the West Virginia process.

Jordan Zachary: Okay. Well, West Virginia is not the only state that has litigation going on right now. There’s always a lot going on in the school choice world. Let’s jump in our vehicles and take a road trip down south to South Carolina. Could we get an update on Bishop of Charleston v. State?

Lauren Hodge: Absolutely. So this is actually a really interesting case. You’ve heard Leslie talk about this a couple of times. And for those who may be listening in for the first time, there’s two cases that are currently pending in South Carolina. The one that we’re going to talk about today is Bishop of Charleston v. State, and this is in regards to access to a voucher style program South Carolina attempted to implement using CARES Act dollars. And so what ended up happening is that the program was put into place by the governor. The program was sued. The program was not able to go into effect and the Catholics as well as several Historically Black Colleges and Universities were not able to participate in the program due in part to the state’s Blaine Amendment. So what we’re going to talk about today is the Bishop of Charleston v. State case. And this is the one that’s actually in the federal court and procedurally where it’s sitting now is the federal Court of Appeals. And so at the district court level, advocates of school choice programs were not able to prevail in those types of arguments. But what’s really interesting about this case and it’s kind of a case to be watching in this post Espinoza world, pre Carson v. Macon world, it’s challenging the validity of a state’s Blaine Amendment in large part. What we’re really looking at here is whether a facially neutral law can be motivated by racial discrimination. Now, most listeners know and are aware of the Blaine Amendments. But for those that aren’t as familiar, Blaine Amendments are those state constitutional provisions and they’re really rooted in 19th century anti-Catholic sentiment and bigotry. The purpose of them, well, it’s to prevent government funding to Catholic schools. And there’s a rich amount of history and documentation that has been laid out to the courts. A really good place to look at that is in the case of Espinoza that was before the Supreme Court in June. So 37 states actually have these Blaine Amendments. And so in June of 2020, the Supreme Court of the United States decided a case that you’ve heard often times called Espinoza. And Chief Justice Roberts when writing for the majority of the court wrote that the US Constitution condemns discrimination against religious schools and families whose children attend them. While a state need not subsidize private education, once the state decides to do so, it cannot disqualify some private schools solely because they are religious. What this case in Bishop of Charleston v. State is actually arguing is that there is a historical background here in South Carolina’s Blaine Amendment that’s rooted in the same discrimination of anti-Catholic, racially motivated discrimination, and therefore it should not stand. It’s actually a very interesting case for those that love a deep dive into history and allow me a foray, if you will, into some of the more colorful and historical pieces of the case. But really the petitioner’s brief here recounts kind of the history beginning as early as 1619, when slaves were first forced into America and into the Carolinas around 1670, what you have in South Carolina in particular is racial discrimination co-mingled frequently with anti-Catholic discrimination. And so, the brief goes into several historical happenings, including St Mary’s Catholic School, that was absolutely reviled for receiving into its congregation at that point in time slaves. And so then you had a few decades later where you had an angry mob who was actually protesting outside, I believe, it was the seminary in Charleston because they were allowing black congregants into the church. So it’s just this very interesting dark piece of history. And so what they’re really trying to do a deep dive into is what is that review standard when we’re looking at the history and how does history play into the law, but also understanding that while a law can be facially neutral, sometimes the discrimination is so prevalent and so interwoven into the times itself that the words of a law alone aren’t the full picture, if that’s a better way of saying it. So, that case had briefings that were due in April, it’s at the Court of Appeals. Everyone is awaiting decisions from the Court of Appeals on how this case will proceed. And hopefully within the next couple of weeks, we will see what happens out of the fourth circuit.

Jordan Zachary: Well, thank you, Lauren, for that update and also for that historical context. Sometimes it really helps paint the picture of the law. So we have a few more states we need to look at. We’re going to go back up north a little bit to the Volunteer State. What’s been happening with the Tennessee lawsuit? I’ve heard that there is an update.

Lauren Hodge: Absolutely. So my goodness, Tennessee. So for those that are perhaps new to listening, Tennessee passed right before COVID began an Education Savings Account Pilot Program is what it was called. So it was a smaller education savings account program, but limited in nature to several counties in Tennessee, and so that program was sued and whole host of arguments were put before the trial court at the state level. The trial court, including an article of provision called home rule, which is essentially that the legislature cannot bind a single county, a single entity by a statewide legislative act. And that’s an over simplification. But for the purposes of this update, this home rule provision was really a threshold matter for the court to decide. So the judge at the child court level said, let’s take the issue of home rule. Let’s go ahead and bring that up to the state and Supreme Court and have them opine as to this threshold matter and then depending upon the way the judge rules, we will deal with the rest of these matters afterwards. So for those that have tracked the Tennessee saga, unfortunately, a justice on the Supreme Court passed, then another justice had to be appointed, that justice then recused. So there is an update in that a new justice was appointed from the Tennessee State Court of Appeals. We are expecting a decision soon from this court because already four out of the five judges have had this case for numerous years at this point. So we’re waiting for one judge has been appointed, they’ll get up to speed, and then we should have a ruling soon on this case. So we’ll be watching. We anticipate soon to hear from that and that’ll impact whether this case is going to go back down to the trial court to be litigated on other matters, or if the program’s going to be held to be invalid based upon the home rule provision.

Jordan Zachary: Thank you so much for filling us in on what’s been happening in Tennessee. Are there any other states we should be looking at, any other lawsuits we should be following that could have an impact in the school choice landscape and the educational choice world?

Lauren Hodge: So I think the one that all eyes are kind of pointed towards is not so much a state specific case, as much as a national case of implication, which is before the United States Supreme Court and that’s Carson v. Makin. So for those that have listened, you know that we’re following this case, this is very similar to the Espinoza case. And so this is actually kind of an opportunity potentially for us to get more clarification around the ruling from Espinoza. And so that could be out potentially in June of this year, and that certainly could have lasting effects on a whole host of cases, including the one that we talked about with South Carolina that’s pending before the court. So we’ll all be watching that, understanding that we may be getting some additional guidance or some additional consideration, and that will be from Carson v. Makin.

Jordan Zachary: Well, all right, there’s certainly a lot to watch this summer. It could be a very, very busy, a very, very fruitful summer in the legal world and educational choice. Lauren, I have to say you did a wonderful job. We will have Leslie back next month joining us, and we look forward to filling you guys in on more legal updates. Stay tuned.