Ep. 330: Legal Update Carson V. Makin – July 2022

June 30, 2022

A breakdown of the Carson V. Makin decision including the big takeaways and why this is important to the school choice movement.

Lauren Hodge: All right. Good afternoon. Good morning. Hello to everybody here to listen for an exciting legal update, brought to you by the LDEC Center of EdChoice. It is Lauren Hodge here, Director of State Legal Affairs. And I am so excited to be joined by our VP of the Legal Defense Center at Leslie Hiner. And you’ve heard us talk about it over the last couple of months. We are here today to discuss the Carson V Makin decision, which has come down. So we are so excited you are here to join us. And I wanted to take this opportunity to talk to the legend herself, Ms. Leslie Hiner about what this decision means, what it doesn’t mean, some of the takeaways that we have, and kind of get an idea of what the next steps are for the school choice movement nationally. So with that, Leslie, I’d like to turn over and give you a couple of moments here to talk about what’s the big takeaway from the Carson V Makin decision. What do you have to say to listeners who are hearing that it’s positive for school choice? What does that mean?

Leslie Hiner: Thank you, Lauren. I think the Carson versus Makin decision that was handed down by the US Supreme Court is a decision that should give parents some peace of mind. Oftentimes the school choice programs are adopted. They become very popular very quickly. Parents are suddenly allowed to send their kids to the schools of their choice. Kids start improving, things are going well. And then they hear about, “Oh, there’s a lawsuit. Oh, there’s another lawsuit.” And like anything else, it pops up in the media. There’ll be a lot of chatter around that. And parents would be justified in feeling just uneasy every time there’s yet more litigation from the opposition trying to shut down their opportunity to send the kids to the schools of their choice. So in this case, something really lovely happened. First of all, we won. Yay. That’s [crosstalk 00:02:10]. But beyond the win, the court was also very specific to say, “Look, we have ruled on these issues previously. You are not paying attention, and you need to pay attention. The Constitution is not changing. You can’t carve out some kind of loopholes to deny rights to parents. So take note, states. This is the law of the land, and it’s not changing anytime soon.” I really love that. So let’s get into the heart of what this is all about. Very quickly, a little background. This case arose out of the state of Maine that has a town tuitioning program, which is very much like a voucher program. It is, however, limited to those towns that don’t have their own schools. There are a lot of smaller towns in Maine like that. The program started in 1873. It’s been around a few years, and it’s been very successful. But from that time up until 1980, parents were able to choose any school. It didn’t make any difference if it was a different public school or a private school or a private religious school. It just didn’t matter because it was the parent’s choice, and the parent’s choice was respected. That happened until 1980 and then an Attorney General in Maine issued an opinion saying, “Well, I don’t know. I think the case law is starting to change. And I don’t know that this is Constitutional anymore for us to allow parents to send their kids to religious schools.” And so very quickly the state legislature changed the law. And that’s been the law ever since. There have been attempts to overturn that law, but it’s pretty obvious that there’s some pretty great religious schools in Maine that parents have not been able to access. And they’ve tried. So this was another attempt by parents in Maine to be able to get this choice back again, a free and open choice of schools. Now, at the same time, parents in Montana were doing the same thing. The parents in Montana brought the Espinoza case that was handed down by the US Supreme Court a couple years ago. And for the same reason, parents wanted to be able to choose a religious school for their kids if that was the best educational environment for their kids. In the case in Montana, the lead plaintiff who has two darling little girls, they’re a family of faith. And the girls when they were at school one day on the playground, and as kids do, maybe the swing set gets old after a while. So the girls decided that they would start a little Bible study because these were girls of faith and something they’d do at home. And they thought it was kind of fun. Well, other kids didn’t think that was fun and didn’t think they should be doing that. And they were teased and bullied and just treated horribly. And the school did virtually nothing to stop that from happening. It had a terrible detrimental effect on these poor girls. They had to go someplace else. Well, they found a great religious school, and their grades improved. They weren’t depressed anymore. I mean, things really turned around for them. And then that choice was yanked away from them. So they won the Espinoza case. The court was very clear in saying that if you have a school choice program that allows parents to choose a private school for their children, you cannot exclude a school just because it’s religious. That is discriminatory against religion. And it’s a violation of the parents’ pre-exercise rights under the First Amendment of the US Constitution. So that decision was handed down while the Maine case was in progress. But when that decision was presented to Maine to say, “Okay, look, this is what Supreme Court said. Can’t exclude parents from choosing a religious school.” Maine said, “Oh no. No, no. That doesn’t apply to us. We’re different.” So that’s why this case went forward to the US Supreme Court because the state of Maine basically said to the US Supreme Court, “Yeah, your rulings, they don’t apply to us.”

Lauren Hodge: Right. If I recall correctly, I remember when Espinoza was coming down. And I remember there being a question post-Espinoza, will this Carson V Makin go away? Theoretically it should. The question was answered. And Espinoza, that, “Hey, you don’t have to choose to have school choice program. But once you do, you can’t exclude a program solely because it is religious,” which is almost verbatim… Not almost. It is verbatim what is happening in the Maine case. And so if I recall correctly, Leslie, Maine’s argument was, “Yeah, yeah, yeah. We see Espinoza. We hear Espinoza. We understand that, but we’re different because we’re not discriminating based upon the status of the school being religious. What we’re doing here is discriminating based on the way that that school would use those funds. And I think one of the things that came out as you and I were talking was in Justice Breyer’s dissent when he says, “Here again, Maine denies tuition money to schools not because of the religious affiliation, but because they will use state funds to promote religious views.” I’m curious, because for any listener here who’s been to a religious school or has children with a religious school, or even works within that community, to disentangle a religious entity from their religious views and philosophy into how they teach reading, writing, and arithmetic, it’s trying to disentangle the lungs from how they inhale oxygen. The two are interwoven and intertwined. And I was curious what you thought about that statement.

Leslie Hiner: Yeah. I didn’t like that very much, because here’s what it means to me. By saying that they didn’t deny a parent the right to choose a religious school because the school was religious, but because the school would actually be religious during the school day, that’s a very offensive statement. It’s as if saying that people of faith or religious entities can put their religious hat on one day and take it off the next day. That religion is just something that it sort of comes and goes. It’s not really part of who you are. It’s not part of how you think. It just doesn’t mean that much. And that’s false, and it’s really deeply offensive. So this is another part of this problem. Then Maine had to answer for this. How can you discriminate against religious entities in such a direct way by saying, “Well, yeah, we’ll tolerate you. But as long as you don’t actually show us who you really are.” That’s terribly discriminatory thing. And especially for a government to engage in that kind of behavior is just about as wrong as it could be. So this is a big part of this ruling where the court said, “No. No, you can’t do that.” Now, the court went a little further on the legal side and I’d like to dig into this a little bit so that people really understand the differences here between state constitutions and the US Constitution. So the US Supreme Court said… Look, back in 2002, the US Supreme Court handed down a decision in the Cleveland voucher case, case called Zelman versus Simmons-Harris. And in that case, the court was very clear to say that in school choice programs, the public funding that goes into that program does not go to a school. There is no direct funding of any school in a school choice program. That funding goes directly to a parent.  And the court went on to say at that point, when the parent has control over the use of those funds, at that point, the break between the state and the parent, it hits right there. There’s a break there. And legally, the parent’s choice of a school, that choice belongs solely 100% to the parent. The government is not involved in that choice in any way. The parent can first choose or not to participate in the program. If the parent chooses to participate in the program, can choose a religious school or choose a school that is not religious. Whatever the parent decides, the parent owns that control. Now, that’s a principal that the US Supreme Court handed down 20 years ago. And people are still trying to fight it. And this Supreme Court said, “No, stop trying to fight it. This is the law. This is the Constitution. This is the First Amendment to the US Constitution. And you don’t get to duck out of it or try to sidestep it.” So the court went on to say that after 2002, Maine should have stepped up at that point to say, “Right. Yeah, parents under the First Amendment to the US Constitution, free exercise clause, they have a constitutional right to choose a religious school in this voucher program if they want to.” But they failed to do that. And that’s a problem. So what this says is when they did that, they actually said that their state constitution was stricter on the issue of religion in the state than the US Constitution. Now, in some cases, that can be fine for a state constitution to have a stricter standard than the US Constitution. However, it cannot violate a person’s rights under the US Constitution. If that happens, then the state constitutional clause or provision cannot stand. The US Constitution and our rights under that constitution, that’s what is legal. That’s what holds. That’s what we can stand on. And this is what the court said. “You do not have the right to take the free exercise rights of any person away from them. You don’t have that right.” Now, I will say that Maine tried to argue an antiestablishment issue, saying, “Well, if the state’s providing money to the parent, the parent uses it to purchase education at a school where they’re teaching religious subjects or they’re teaching from a religious viewpoint, then isn’t that entanglement between the state and religion? And that’s prohibited by the Constitution.” And the Supreme Court once again went back to say, “Okay, so first of all, this is not the state making a choice of a religious school. Let’s go back to Zelman 20 years ago first. Remember, that was the first step.” And the second step is that if the state has to determine whether a school is religious or not, that’s where the entanglement is a problem. No, you either have a school choice program where parents have their full choices of religious schools or not, whatever is best for their children, let the parents decide or not. But don’t try to sidestep the US Constitution.

Lauren Hodge: One of the big takeaways I had, Leslie, is something that you’ve hit upon. And it’s been settled law for decades, right? That when that money hits the parent, the child’s account, their hands, that’s when it becomes a private choice, right? Which is why there’s not this false argument of entanglement and enmeshment between church and state. Any and every school type is eligible to be a part of this program so long as they conformed with the other Maine statutory requirements, which I think were things like they had to be accredited by a Maine accrediting authority. They had to meet the standard number of days, the accountability pieces to these types of programs. Any private school that wanted to be created, regardless of that religious affiliation, whatever religious entity that was, could potentially go to Maine and start a school and be eligible to take students underneath this program. But it’s that there is a private choice that’s being executed there. And I think so often we hear conflated in these arguments that, “Well, this is the entanglement of church and state.” But that argument is soundly rejected again by this court to say it’s not the entanglement. This isn’t the state forcing the funding of private religious education. This is the state enabling a public benefit that every child in Maine who did not have a secondary school in their SAU, their school authorizing unit, is eligible to take advantage of this program. It was the public benefit, right? And so that public benefit can be subscribed to by a whole host of entities. But when you have that money and you provide it to the individual, the individual can execute that private choice. And I know that that’s been settled law for decades, but man, as I read that opinion, it just came through again. These are private individuals executing private decisions. There is not this entanglement, this false argument of entanglement of church and state. This is the public benefit that we’re just asking to be uniformly applied. And so for me, that was one of the major takeaways I had. I’m curious, Leslie, Carson V Makin taken together with Espinoza, what does this mean for those who have watched the school choice movement develop? What does this mean for us as we look at this post-Espinoza post-Carson V Makin world?

Leslie Hiner: Well, Lauren, I have to say… This is speaking personally. And for so many of us who have worked for so many years to help parents get this choice for their kids, there’s a certain validation that comes with these rulings. We were very certain about the law and the Constitution. But speaking as a lawyer, you can be certain about it and cross your fingers still when you go into court, and hope that the court sees it your way. So yeah, it feels good to know that yes, the court agrees with how we see it, the constitutional principles. And frankly, this is not really difficult. These constitutional principles are very well grounded, have been well grounded for years, as you mentioned. I would say that parents should take to heart that these core legal principles are sound. The court is very clear about this. We also have a very strong record of state Supreme Courts also coming to the same conclusion as the US Supreme Court, again, over the last 20, 30 years now, even. So this is taking away the arguments that somehow school choice is unconstitutional. That’s just an incorrect statement. That is completely incorrect. Now, there are people who are not fond of religion or religious entities. Or they may have issues with people of different faiths or immigrants. In particular we’ve heard a lot of mention of, “Well, you probably won’t like it when some Islamic school opens or if there’s a Jewish school.” Well, no, actually it’s really great. Some of the best schools in the country and that also participate in school choice programs are Islamic schools and Jewish schools. There’s no problem here. So for those who may have a problem with religion or the teachings of any particular faith, I would say that’s fine. You’re totally entitled to your opinion on that, but please respect the opinion and the beliefs of others who see religion differently than you. And also remember that it’s often the case parents in choosing a school, the first thing that they’re looking for is a school where their child is going to fit in and feel comfortable and be able to learn. If the child doesn’t feel comfortable at a school, then learning becomes extremely difficult for that child. So it’s often the case we often see parents of one faith who will send their kids to the school of a different faith because it’s a great school academically and the child will fit in there very nicely and things will work. And that’s really the point. School choice gives that full opportunity to parents to be able to send their child to a school where they know the child will be valued, will learn lessons that are in sync with the family’s view of the world. And at the end of the day when the child comes home, that’ll be a happy child. And the parents can be helpful to the child in learning the lessons that are taught in school. And the next morning, the child, instead of fighting, they, “No, I don’t want to go to school,” will instead say, “Well hurry up, mom. I’ve got to get school on time.” It may seem like a small thing to some people, but it’s actually a very, very large thing in the life of a child, in the life of a family. And the US Supreme Court in this decision with Carson versus Makin has really honored those parents who have whatever particular views they have on religion to say that, “Look, the Constitution honors you as well. You have the right to freely exercise your faith under the US Constitution. And that’s not going away anytime soon.” So for me, it comes down to this. If we would spend a little more time respecting those who have values and opinions that are different from ours, we might see that some of these opportunities like school choice being offered to parents, it’s actually a really good thing. It goes to our humanity and just recognizing that we’re all valued, and we should all be valued.

Lauren Hodge: I don’t think you can say it better than that. Any other last thoughts that we have, Leslie, that we should share with listeners? But I think that’s the whole point of the movement, isn’t it? The education gets centered around the child and what the child needs. Right? And that recognition that every child may need something a little different and that we should be putting children first instead of a system first. And so as I look at Carson V Makin, I don’t see an explosive expansion of Espinoza. I don’t see constitutional law shifting underneath my feet. What I see is the consistent application that parents can execute a private choice. And that discrimination based upon an entity’s religious nature is not a reason to discriminate for a generally available public benefit. And I mean that this not a constitutional analysis that it’s revolutionary, that has never been seen before. And I think so much as the court even said so in their opinion. This was settled in Espinoza and Trinity Lutheran. You didn’t have to do this again. But since you did, this forecloses the argument that you have. We’re not discriminating based upon the status or discriminating based upon the use. And the court just said, “That’s a non-starter.” That, “That’s really not a place to turn.” So I think that this is something that is reaffirming good standard case law for decades upon which this issue has been built. And so I’m with you. I’m glad to see the opinion out. I’m glad to see it moving forward. And we’ll look to see what happens next.

Leslie Hiner: That’s right, Lauren. You said that exactly right. And so for our listeners to know, yes, we’re guessing there will still be more litigation in states. And we’ll weather those storms. But this issue about the participation of religious schools and the freedom of parents to be able to choose those schools, that should be absolutely 100% settled in every state in this nation.

Lauren Hodge: Absolutely. And I think the line that I take away from this opinion, the prohibition on status based discrimination under the free exercise clause is not permission to engage in the use based discrimination.

Leslie Hiner: That’s correct. No more sidestepping.

Lauren Hodge: That’s it. That’s it. So let’s go boldly into the new era here and let’s continue to put kids first in education, and in all the things we try and do. Well, I want to thank our listeners for tuning in today. As always, we are happy to have you. We look forward to having conversations. If you have questions or things you’d like for us to address, please give us an email at legaledchoice.org. You can subscribe to the podcast anywhere that you get your podcast information. And of course, go to edchoice.com for great information around data, legal, and the programs that exist in the nation thus far. It has been a pleasure spending time with you this afternoon, Leslie. Thank you so much for the legal analysis and a little bit of joy as we head in here to this very warm June weekend.

Leslie Hiner: Thank you, Lauren. And thanks to our listeners.