Ep. 325: Legal Updates June 2022

June 10, 2022

A quick legal update on Tennessee from Leslie Hiner.

Jordan Zachary: Hello, viewers and listeners. This is Jordan Zachary with EdChoice. We’re here with another edition of our legal podcast. We are joined by our legal eagle, our VP of legal affairs, Leslie Hiner. Today, we have a couple things we want to talk about. It might be a quicker podcast than usual. But Leslie does have an update out of Tennessee that she would like to share with our listeners. Leslie, I’m going to go ahead and turn it over to you and you can tell them what you’ve been hearing.

Leslie Hiner: All right, Jordan. Thanks very much. The case out of Tennessee where the ESA pilot program was challenged, that case has been a little different from some of the cases that we normally see. And so we wanted to give a little extra attention to this to explain some of the finer details of what’s happening so that people can understand the situation. On May the 18th, just a couple weeks ago, the Tennessee Supreme Court ruled that the ESA pilot program does not violate the home rule provision of Tennessee’s state constitution. Now, the good news about that is that we have a victory. Yay, always celebrate your victories. It’s important. The home rule challenge was based on this, that the program is essentially limited to Memphis and Nashville, and there’s a provision in their state constitution that prohibits that sort of thing. But it’s sort of a high bar to meet, though. You have to meet specific criteria under their constitution. And the Tennessee Supreme Court said, “No, this program’s fine. It does not in any way violate the home rule provision.” So yay, that’s the good news. Now, second part, does this mean that they can start implementing the ESA pilot program? Not quite so fast. The Chancery Court, which is the trial court in Tennessee, when they took a look at this case, they isolated out the home rule challenge. And that is the only part of the lawsuit that went up to the Tennessee Court of Appeals and then up to the Tennessee Supreme Court. So what that means is that the other issues that were challenged about the program, now those issues have to be litigated back down in the Chancery Court. So the Supreme Court said, “Okay, you win on the home rule challenge, but now this case goes back to the Chancery Court to consider those other issues.” So that will happen. The only action so far on the court’s side has been to say that the Supreme Court affirmed an order for a three-judge panel to hear the case, which includes the chancellor who handled the case in the very beginning. So at least this is a judge who will be very familiar with the case, having ruled on it previously. One of the key elements, I believe, that will come up very quickly is the preliminary injunction against the program not allowing it to go forward until all the litigation is finalized. But at this point though, there’s been no action by the court. We don’t have a hearing date set yet. So check back with us to find out more information about that. But I will run through some of the challenges that now will be litigated, so you’ll understand what’s coming next in Tennessee. The first is that they have an equal protection challenge. And the equal protection simply questions why schools in Davidson and Shelby Counties were targeted and other counties were excluded. And so the first thing is to say that children zoned in low-performing schools in Davidson and Shelby Counties, they were targeted, but there is no real rational basis for that. There’s no reason why other qualifying students in other counties shouldn’t have been included. I have to say, we kind of agree with that. Yes, all the children in the State of Tennessee should be included in this program. But that’s the first part. And then the same thing, they argue a public school funding issue. It’s the same kind of thing that we see so often in these cases where they say that school choice programs take money away from public schools. They routinely lose that argument, but nonetheless, they’re making that argument again. And once again, they’re saying, well, why should that only happen to public schools in Davidson and Shelby Counties? They also go on to talk about students in Fayette, Hamilton, and Madison Counties in Tennessee. And they allege that in those three counties, there’s the same or greater concentration of poorly performing schools that otherwise those students in those schools would qualify under the ESA pilot program, and why shouldn’t they be included? And then finally they say, “Well, and all of that is just arbitrary and that violates the Constitution. It can’t be arbitrary. There has to be a rational reason why these certain students and counties are targeted.” So that’s the basis of their equal protection claim. Then they have a claim under the education clause of Tennessee’s state constitution. And that clause says that the legislature has “an obligation to maintain and support a system of public schools that affords substantially equal educational opportunities to all students in state.” And again, they say that by diverting funds from public schools in two counties only, targeting them, that that violates this equal educational opportunities provision. And it comes down to a funding question. So the remaining claims in that case, which is the Metropolitan Government of Nashville and Davidson County versus Tennessee Department of Education, the remaining issues are really pretty clear and straightforward. We’ve seen these issues before. We have generally won on those issues before as well. So we have a certain sense of, oh, I don’t know, a little bit of a good feeling going back to the trial court, with the exception that the trial court was rather harsh in its rulings against the programs initially. But that’s just part one. As if that wasn’t enough, there is a part two. There was a second case that was filed against this program. That case is called McEwen versus Lee. So McEwen versus Lee, that was also held back by the courts, waiting for the Supreme Court to rule on the home rule provision. This second case was brought by the ACLU, the Southern Poverty Law Center, and the Education Law Center out of New Jersey that works with public funds, public schools. So they are normal opponents of school choice programs. They also make the same arguments that are made and remaining in the other case, but they also go a little more in depth in the challenge. And they bring in some discrimination claims based on LGBTQ status, disability, religion, English proficiency, and poverty. So their claims are a little more extensive. They are essentially making a uniformity complaint, challenging that this voucher program will make the schools not uniform in Tennessee. And they’ll allege that that’s prohibited under the Constitution. They will also make some challenges to the method of funding for this voucher program. So we’ll get into some finance issues, both in this case and also the remaining issues of the original case. So there’s a lot more to be decided. Again, we still feel fairly confident going into these challenges because we do tend to win these challenges. But never take anything for granted. All of these challenges we take very seriously and we hope you do too. And we encourage you to check back with us so that we can give you the updates as they occur. Presently, we do not have a court date for the next round of action in these cases, but when we do, we’ll let you know. And I should also add that we’re putting together a blog post on this case to spell out the fine details of the case. So any of you who have a deeper interest in this, here, in the next couple weeks, we should be able to get that blog post up for you.

Jordan Zachary: That’s great. That’ll be a wonderful tool, Leslie. There’s a few other cases I know we’ve been keeping an eye on. Are there any updates or is there anything our audience should be waiting for in terms of the Carson v. Makin case or perhaps the Beaver versus Moore case out of West Virginia. And I also know that we’ve been watching closely Kelly versus State in North Carolina, along with Johnson case out of Kentucky. Are there any updates from those states or the Supreme Court case that our audience should be aware of?

Leslie Hiner: Yes. The updates are that we’re waiting for court date hearings in many of those cases. In the West Virginia case, there were three judges that recused themselves from the case. We now are on our fourth judge. And this fourth judge, it appears that we’ll get to keep this judge. So we’re anticipating that a hearing date will be set in that case for sometime later in June, maybe early July, but we’re waiting for that to happen. In the meantime, we’ve had a few thousand students who have applied for the program in West Virginia, which is just great, and people continue to apply now. So the interest in West Virginia by families is really strong. And we’re certainly going to make that point to the court just as soon as we’re able to get into court to make the point. In North Carolina, also, we’re waiting for another hearing date for a ruling on the Attorney General’s motion to dismiss the case. Then we have, let’s see, in Kentucky, briefing in the Kentucky case begins shortly. Actually today, this is the 31st of May, the briefs are due from those who are defending the Kentucky program. And in two weeks’ time, our brief, we’re going to file an amicus brief in the Kentucky case, warning parents, our brief will be filed on June 15. Similar situation in the State of Vermont. In Vermont, the briefs by those supporting the case and also our amicus brief will be due on June the eighth. So that’s just about a week and a half from now. The briefing schedule, I think, in both of those cases will proceed fairly quickly. After the first round of briefs are filed, then there’ll probably be about a month later that the opposing briefs will be due. And so I would expect that in early fall or sometime in the fall, we’ll have oral arguments in those cases. So those cases are really starting to move now. So again, if our listeners have interest in those cases, they should check back with us and we’ll make sure to get the information to people. Let’s see, the Ohio case is starting to move. There’ve been some motions to dismiss, but, well, it’s been Memorial Day weekend and the courts are made up of people too. So sometimes some of the action in the courts can be a little delayed or a little stilted. And so I’m expecting things to get a little bit more back to normal and more consistent here in June. Now, the big case that we’re all waiting for, which is the one at the U.S. Supreme Court, Carson versus Makin. This is the challenge out of the State of Maine that largely turns on a decision about the establishment clause of the U.S. Constitution’s First Amendment. So this is a big one. We’re now in the last month of the term of the U.S. Supreme Court. Typically, their term goes through the end of June, meaning that all of the decisions for cases that they heard since the beginning of October last year, that they will issue decisions in those cases before the end of June. They typically do that on Monday mornings, Monday mornings at 10:00 AM. So anyone who is interested in following this and would like to hear the news right away, you can go to the U.S. Supreme Court website and check their calendar when they’re issuing opinions and sit and watch like the rest of us and the legal fraternity, as we’re waiting with bated breath to see which opinions will be handed down. The Supreme Court does not tell us in advance which opinions that they will be handing down. And we typically don’t know until the Friday afternoon before a Monday whether the Supreme Court will issue opinions at all on that following Monday. So currently on the Supreme Court calendar, you will find that every Monday in the month of June, they will meet and they will issue orders. Now, those orders are typically whether they’re going to accept cases or sometimes there are special criminal matters that come to them that need immediate attention. Those are the orders. But right now there’s nothing on their calendar that says when they will issue any opinions. So again, if you have a keen interest in this, check out the court’s calendar, I’d say late afternoon on Friday, to see if they’ll issue any opinions on the following Monday. And then you can watch along with us and wait for Carson. And I should add that as we get closer to the end of June, what often happens is the court will issue opinions maybe on a Tuesday, Wednesday, Thursday, depending on what kind of backlog they have with their cases. So if you are not going to check the Supreme Court website, then check our website because we, of course, are following this. And if you could tell by the tone of my voice, I’m very, very anxious to get this opinion. I think it will be a really good one. I think the court will plow through some First Amendment territory that has needed clarification for a long time. I feel like we’ll get some of that clarification out of this court. And that’s a good thing. That’s a good thing for all of us. The one most important thing is that we know our rights under the Constitution, that they are clear and there’s no guesswork. It’s such an important thing for all of us. And particularly to parents, who are just looking for a decent education for their kids. So that’s the wrap-up, Jordan.

Jordan Zachary: Well, Leslie, I think like you said, we’re anxiously waiting. We need clarification when it comes to the Carson case and we are hoping that we get not just that clarification but an outcome that empowers families, that give students opportunity. And then, throughout the rest of the country, in the States, as you mentioned, we had a holiday weekend. So maybe there are some other issues that the courts have to deal with. Unfortunately, we are not the only issue, school choice, that they are working on. But as we start to move into the summer, hopefully we will be in the loop with more hearing dates. And we will be able to share these to the viewers and share these to our audience. And we will keep you guys up to date. Don’t forget, as Leslie mentioned, we will be posting a new blog. So be on the lookout for our legal updates blog. And we look forward to talking to you on next month’s edition of our legal podcast.