Ep. 343: Legal Update – September 2022

September 29, 2022

Listeners get an update on litigation and legislation happening across the country.

Jordan Zakery: Welcome listeners to the legal update with LDEC EdChoice’s Legal Defense and Education Center. We are here with two wonderful advocates, Lauren Hodge and Leslie Hiner. We have an update out of the wonderful mountaineer state of West Virginia and their Hope Scholarship Program, the nation’s first nearly universal education savings account. Lauren, can you tell us a little bit about what’s going on? We know this program’s been wrapped up in litigation for a while. I’ve heard there’s updates. What are you hearing?

Lauren Hodge: Absolutely. So, thank you so much Jordan. And so, just a quick recap. If you’ve been listening to this podcast before, you know that West Virginia passed one of the country’s most expansive education savings account or ESA programs that eligibility reigns exceptionally high at an estimated 93% of the total K12 population in the state being eligible for that program. That program was set to go into place this summer so that way students could use it for this upcoming fall school year that we have here in 2022. Right before the funds were set to be disbursed, opponents of the program filed for a preliminary injunction. And that injunction went through several different judges at the trial court level with judge, after judge, after judge recusing themselves. There was finally a ruling issuing a permanent injunction, which for any legal legals we have on the phone call was not asked for, only a preliminary injunction. But a permanent injunction was issued by the circuit court, trial court level there.

And then it made its way to the Intermediate Court of Appeals, the ICA, which is a new court for West Virginia. A motion to stay that injunction was denied. And so for those that are following kind of the saga that is West Virginia, the West Virginia Supreme Court of Appeals, so their state Supreme Court, is accepting this case. Oral arguments are scheduled for October 4th, and so this will be a very interesting case to kind of play out. Those claims that we’ve covered in previous podcasts include the regular offenders, so to speak, with you can only fund public education. And there’s one and only way to fund the public education the same arguments that this will defund the public school and cause irreparable harm. And so, there’s the few other state level arguments that are interwoven within those claims. So, what’s going to happen is this is going to go up to the State Supreme Court. Briefing is already underway with the briefs due for advocates of the program.

I believe September 6th is the deadline. So, there’ll be kind of a back and forth that happens in the briefing and then oral arguments set for October 4th. So, the real question at this point is what does that mean for families, right? What does that mean for those families who applied for Hope or planning for Hope and had probably already made plans to utilize Hope this year? It’s unfortunately very frustrating and disheartening news for them. Certainly Hope is not going to be in place and is functional before the beginning of this school year, which for many students has already began across the country.

So, for those parents, they’re scrambling to figure out what their options are, what will happen. So, we’re hoping that at least early October, we can start getting some definite information to those parents and to individuals both who want to participate in the program as students, but also those who wanted to come into West Virginia and provide some new educational alternatives and some new models. So, EdChoice will be fryling in amicus brief by our brilliant and esteemed Leslie Hiner, who will be providing her genius insight there. So, EdChoice will be providing an amicus brief as well as other partners, both local and national. So stay tuned. It’s going to be a bumpy and wild ride.

Jordan Zakery: Lauren, two quick things because this is such a big program for our listeners. One, what exactly is an amicus brief and two after oral arguments, what are the next steps that our listeners should expect with this case?

Lauren Hodge: Absolutely. So, great questions. Turning first to what is an amicus brief? Those are it can either be friends of the petitioner, friends of the court. There’s a couple of different variations of an amicus curiae brief, as what they’re called. And really what that is are parties that are not involved directly in the litigation. So, these are not the people who are actually bringing the claims. It’s not the state itself who’s defending against the claims, not the parent interveners, which the Institute for Justice, IJ, is representing in this case. It is a friend of the court type of brief. And so what the purpose is is to add the context and the color around the legal claims that exist. So, a lot of times, a choice has provided numerous legal briefs over the last few years, and this can take many forms. Sometimes it’s providing the court with information related to the research around school choice so the court has a full and complete picture about what we actually do know from a research perspective about school choice.

Sometimes, it’s about providing the court with the history. And the legal history from that state and from other states sometimes it’s about providing the court with a variety of other shared rulings and context from other states. So, that amicus brief can take on a wide picture of variations. But the purpose is really to just inform, be factual, but inform the court of the context that’s around. So, in amicus, or amici as they’re called when it’s plural, amici briefs will be filed for both sides both but advocates of the program and opponents of the program, I suspect, all just trying to inform the court and give a full picture, if that makes sense to the court.

Now turning to that second question, which is what do we expect after October 4th? And this is where if I had the crystal ball, right? I would be looking it up and just telling you all the winning lottery numbers. But a couple of things can happen here, right? So, one thing that can occur is that the court could make a ruling from the bench. That would be exceptionally rare and not a common thing. I think what’s more likely for listeners to expect is that the court will likely take the oral arguments under advisement and then come back with a written opinion and an order and a couple of things can happen there. The court can provide an order just allowing that program to go into effect. The court could remand it back down to the lower courts and say, “We’ve decided on these issues that it is legal, it is constitutional, but you have to decide these.” The court could decide in favor of some issues but not other issues.

So, there’s a couple of different variations. I don’t think we’re going to see anything instantaneous. We just have not typically seen that many rulings from the bench itself over the years. It’s certainly possible, but I would expect soon, especially given how many parents are already enrolled in this program, how many students had already planned to utilize Hope and use those scholarships for this fall. So, I’m hoping we get something sooner rather than later so that families can get clarity.

Leslie Hiner: Hello, everyone. So, this is Leslie Hiner and I’m just delighted to talk to you again on podcast. I’d like to just take a minute to thank everyone who is listening to the podcast. It does mean a lot to us, and so, thank you. That said, there’s been a recent case that was decided by the US Supreme Court this summer, the Carson vs Makin case. And we have talked about that case already on the podcast, and you can learn more about it online as well. It’s pretty important. But the ruling in the case though has caused a lot of people to either go crazy and say, “Woo, we can do anything now. This is really great.” And that’s partially correct. And there have been others who have said, “Oh no, that’s terrible. It does something else that they doesn’t do.” So, there has been a little bit of confusion and we decided that it might be good to take a minute here to walk through the fundamentals of what it is that actually make school choice constitutional.

I’ll have to promote online, in the research section, you’ll find our legal basics publication, and that lays out all of the most important school choice cases over the years going back to 1925. But for today, I’ll do a quick summary and talk about why this is important after the Carson case. The first is the Pierce vs Society of Sisters’ case from 1925. Seems like it was a long time ago and it was, but it’s still good case law. The long and short of that case is that during the days of compulsory education, when that idea that kids need to be compelled to go to school, when that was circulating through the country, Oregon adopted that, but they really jumped off a cliff and went too far to say, “Yeah, kids have to go to school and they can only go to public schools.” That became the law in Oregon.

Now, there’s a lot of reasons behind the scenes why that happened. The Ku Klux Klan was extremely active in making that happen, and it wasn’t a racial issue, but it was a religion issue. Didn’t want kids to be going to those Catholic schools in particular. The Jewish schools also were in there and there were some Asians living in Portland and they had different faiths, different types of religion, and they were just trying to make everything and everyone Protestant. And we’re pretty boldly public about it.

Well, the US Supreme Court said, “No.” They’ve said, “No.” We have a First Amendment to our constitution which guarantees religious liberty and you’ve just shot that in the foot. So, the court said very simply, “Children are not the mere creatures of the state. The parents are the ones who have the obligation and the duty and the right to see how and where their children are to be educated.” And that’s something that you can’t take away from parents. There can never be a time when a child is compelled to be taught by public school teachers only. That’s what the court said. It’s been good law ever since.

Now, let’s jump forward literally 100 years, from 1925, August, 100 years to 2002, the Cleveland voucher case, which was Zelman vs Simmons- Harris. Cleveland had a voucher program. Cleveland schools at the time were in deep, deep trouble. The public school district believe at the time was in receivership. It was a tough time, but they adopted this voucher program to try to ease some of the pressure on the school district, frankly, and help these parents. And of course they were sued for doing that. But the US Supreme Court said that the Cleveland voucher program was completely legit. It was constitutional. And the court talked at some length about what it is that causes a voucher program to be constitutional.

So, it’s simply this. The legislature appropriates education funding for our children. But the court said in a voucher program, after that is accomplished then there comes a point when the money for that child’s education appropriated by the legislature, then is transferred. Now, in the case of a child going to a public school, that money that is transferred from the state to the public school. In the case of a child who is on a voucher program, that money is transferred to the parent to decide where and how the child should be educated.

So, at that moment, that precise moment when the parent gains control over that funding and how it’s used, there is a legal break. And that money then, once under the control of the parents, is the parents’ money. So, any kind of decision that the parents make about where and how to educate that child, that is strictly completely the parents’ decision and only the parents’ decision. The state has nothing to do with that.

Now, that principle has been upheld by the US Supreme Court and by state courts, time after time, after time, over the last 20 years. It was upheld by the US Supreme Court in the Espinoza case, which is the next case I’d like to talk about. Espinoza case rose out of Montana. They had tax credit scholarship program, but the state told parents that after they had control over funding scholarship for their children, they could not access a religious school. Well, the US Supreme Court came in and said, wrong, the first Amendment to the US Constitution guarantees certain free exercise rights to individuals, including those parents who are participating in a school choice program. And so, by saying that a private religious school could participate in that program, the state was denying the parents’ right to choose a religious school.

Now notice, and this is important, in the Zelman case, the question was about the rights of the parents. In the Espinoza case, the question was about the rights of the parents. And I guess I shouldn’t skip peers. It all started back with peers in 1925. The question was the rights of the parents. That’s what school choice is all about. Now, in the Espinoza case, it was just a straightforward question. Can the state prohibit a parent from choosing a religious school in a school choice program? The answer was no. Court went on to say that any state that has a provision in their state constitution that would allow that to happen, that that is “repugnant to the US Constitution and it will not stand.” So, any of those provisions in the state constitution that would limit those federal constitutional rights of parents, they have no merit.

Now, let’s move on to the Carson case. Carson case originated out of Maine, and Maine had a unique way of looking at things. Maine said, “Well, we have this voucher program, which by the way has been in effect in Maine since 1873.” But along about 1980, they stopped allowing parents the option to choose a religious school. Kind of. What they really said was, “Well, you could choose a religious school if you want to, just so long as that school doesn’t do anything that’s religious.” Okay, well, that’s a little nutty just on the face of it, but that’s how it was. So, a religious school could deny its faith, have nothing to do with faith, say nothing about faith, nothing. Basically, if a religious school wanted to deny their faith, then they could participate in a school choice program and that also was a little bit crazy, but that was their position.

So as a result, when the Espinoza decision came down and the Carson decision was still pending at the appellate court level in the federal courts, we sent the information to the appellate court and said, “Okay, the Spring Court said you can’t deny the parent this right to choose a religious school.” And Maine said, “Yeah, that doesn’t apply to us. No, that’s not for us. We’re different.” The result was we ended up again before the US Supreme Court. And the US Supreme Court was very firm in saying, “I don’t know why we’re here. I don’t know why you didn’t get this. We had these other decisions. You should have paid attention to these other decisions and allow these parents to access religious schools, but you didn’t. So now here we are.” And the court was very plain in saying, “Religious schools are religious. Yeah, go figure. Public schools are public schools. They’re not religious.” That’s okay. What’s not okay is violating the rights of parents to choose a religious school.

So, this is the part now that has gotten a little bit complicated after the Carson ruling. As I noted, Harris case was about parents. That Zelman case was about parents. Espinoza was about parents. The Carson case is about parents. None of these cases are about religious schools. Religious schools are impacted very directly. There’s no question. But the rights that are violated when a parent cannot access a religious school in a school choice program, are the rights of the parent under the First Amendment to the US Constitution. State constitutions can have more restrictive provisions than exist in the federal constitution. But in the area of school choice in particular, any of those stronger provisions in state constitutions that would act to violate an individual’s rights under the US Constitution, they can’t stand. The US Constitution has that supreme right to protect our individual rights of free exercise of religion under the First Amendment to the US Constitution.

Well, I hope that helps. I guess, to those of us who work in this every day and have been working it for many, many years, it seems very simple. But we’re recognizing that what we see as simple is not necessarily, and it’s really important that everybody be very clear that school choice programs are not programs that uphold the religious rights of religious schools. These are programs that uphold the rights of parents to choose any kind of education or educational resource for their child, religious or not. That’s what it’s about.

Jordan Zakery: Leslie, thank you for that fine recap. I think it’s important for our listeners to really, really be on point when they talk about Carson, when they talk about Espinoza. Understand what they do and what they don’t do. And if you have questions, that’s why we have LDEC, that’s why we have Leslie. Please take advantage of our legal bundle online. Please reach out to Leslie if you have questions over these cases so that way we can make sure that we’re speaking about these cases in the right way. Also, viewers, I’d be remiss if I didn’t bring this up. We have some wonderful news from one of our legal eagles Lauren Hodge. Lauren, can you give us an update, some information you’ve been wanting to share with us?

Lauren Hodge: Yeah, so it is after numerous years, four plus years of just joy with being at EdChoice. I am excited and also sad to say I will be leaving the EdChoice team to take another position as the Director of Foundational Education at Stand Together for the priority issue of education there. And so I just want to take a moment and say that I have been so humbled and blessed and grateful for the mentorship, brilliance, kindness, and friendship from all of my colleagues at EdChoice. But certainly Leslie Hiner, who has just been, she has been a rock star from the moment I entered into EdChoice and started to get my head around these issues. She has been nothing short of the mentor that you’ll always hoped for. And so I will miss her so very much. I will miss you, Leslie, forever and for always, but I’m not going far. And that part is certainly true.

And so, we know that I’m staying within the movement. I look forward to continuing to work with you, to continuing to work with EdChoice and the fantastic work that you have going. And for anyone who’s listened to the podcast, for everyone who’s worked with the Legal Defense and Education Center, thank you. Thank you for your patience. Thank you for your kindness. Thank you for your continued support. This work matters. Children matter. And as we go forward, we always keep at front and center at LDEC that the child is what we do this work for. And so, I know that while I will miss Leslie in the wonderful EdChoice team, that work is going nowhere, and I am grateful to have been a part of it.

Jordan Zakery: As we get to the end of our podcast today, I think it’s really, really important that we give a big thanks to Lauren Hodge for all of the work she’s done. I know I’ve had the joy and the opportunity to learn from her while she was on the state team, and she’s a wonderful school choice advocate who is taking another position with Stand Together, where she’ll still be a wonderful school choice advocate. So, Leslie, did you have any comments? I know you’ve had the opportunity to work with Lauren at LDEC and to work with her in a variety of issues. I’ll let you wrap up our podcast today by giving some comments about Lauren.

Leslie Hiner: Well, I’ll take a deep breath first. Yeah, Lauren Hodge is pretty wonderful and she’s a great attorney and she really has a heart for this issue and a real understanding of parents and the needs that they face for their children, which is important if you’re working in this space because that’s really what it’s all about. So, I’ll tell you a little history. When Lauren was first hired as a state director to work in our states, the very first day she came into the office, I was the last person that she was introduced to for the reason that everyone knew that as soon as we started talking, yeah, it’d be really hard to pull us apart. We just keep talking, talking, which we did. And at the end of our conversation then, I only had one question, which is, when do I get her? I need her on the legal team, and right now would be fine.

So, wisely, however, both for Lauren and just internally, she worked in States, working with people one on one in the States on their state issues, policy issues, legal issues, and she really developed a deep understanding of the issues, which is really necessary to do. Lauren has the kind of understanding about the issue that allows her to look at the law with a really fine legal brain, but understand what it means as it’s applied in states and for individuals. And I think that’s the most important thing of all. Now, I will also say that although she is now at Stand Together, before she left, we made sure that we planned some activities together. So, I’d like to say that we’re just sharing her with Stand Together and we do have a very nice partnership and relationship with Stand Together. They’ve been excellent excellent partners, so this shouldn’t be too hard for us to do.

For all of you who are listening then so that you’d know, if you need to contact Lauren, you could reach out to Stand Together or reach out to us and we’ll be happy to give you her contact information. I imagine there will probably be a number of people who would like to do that, but also if you’re attending any of our events, you may see Lauren from time to time as well. And with that, so now I am the legal center and I need some help. Any of you who are lawyers who are listening. Interested? We are looking to hire in the legal center. So, please don’t hesitate to reach out to me either if you’re interested or if you know of somebody who might be interested. I would certainly appreciate any help I can get in finding a great lawyer. Big shoes to fill with Lauren, but school choices, it’s just so important to so many families. We’re going to look for the best lawyers we can find to make sure that we can provide this opportunity for kids. That’s our bottom line.