Ep. 93: Legal Updates with Leslie – FL, ME, MT, NM and TN

January 22, 2019

In today’s episode of EdChoice Chats, Vice President of Communications Jennifer Wagner chats with Vice President of Legal Affairs Leslie Hiner about several court cases, including a controversial tax-credit scholarship program ruling in Montana.

Jen Wagner: Hello and welcome to another episode of our EdChoice Chats. We are joined today by Leslie Hiner, our VP of legal affairs. And I’m Jennifer Wagner, our VP of communications. And it has been a busy couple of months in litigation world for you Leslie, so hoping we can take a little time here to look back and then look forward at the future of school choice and the passed school choice litigation that’s happened.

Leslie Hiner: Thanks, Jen. People often get a little nervous if they hear that the lawyers have been busy. But in the case of school choice in most, but not all, but in most of these cases, though, the results have been good. So, I’m certainly happy to talk about that.

Jen Wagner: Well excellent. So, we’ve had three cases in basically the last month and a half. So, busy holiday season. We had two that I think we could probably chalk up to say they were victories, and those are in Florida and New Mexico. Then Montana maybe didn’t knock it out of the park with their Supreme Court. So, let’s talk about the positive cases first.

Leslie Hiner: All right. Let’s talk about that. Well first of all, let’s talk about New Mexico. This was a textbook case from a few years ago. The state of New Mexico allows public funding for textbooks and schools. They have a sort of unique loan program for textbooks that private schools could access to loan books also for their kids. However, somebody got the idea that, “Well, those kids go into religious schools; well, they don’t get textbooks.” And so religious schools were excluded from the textbook loan program. Well that was challenged. It was taken up to the U.S. Supreme Court, and the U.S. Supreme Court vacated that decision of the New Mexico Supreme Court and said, “We think you should look at this again and rethink your decision.” Now they did that after the U.S. Supreme Court ruled in the Trinity Lutheran v. Comer decision where the U.S. Supreme Court said that in a widely available public program that you can’t exclude a religious entity just because they’re religious, just because it’s a religious school, just because it’s a church, just because it’s religious people; that directly violates the First Amendment to the U.S. Constitution. It’s discriminatory to do that.

So, the New Mexico Supreme Court took a long time, almost a couple years, to reconsider. But their conclusion was pretty interesting. They concluded that yes, in fact, those kids who are attending religious schools can have textbooks, too. That seems rational. But they concluded that the reason this would now be possible is because that the children were going to private schools and that private schools should be able to participate in the textbook loan program. They talked about the Blaine Amendment. which is the amendment in over 30 of our states which has been unduly restricted, it’s rooted in anti-Catholic animus from over a century ago. And they acknowledged that, in this opinion by the New Mexico Supreme Court, the Blaine Amendment in the Constitution is really discriminatory and has a terrible past. But then they sidestepped, though, on the decision and said, “But our decision doesn’t really have anything to do with religious issues. This is more an issue of can a public entity also engage a private entity in a publicly funded program.” And they concluded that yes you can. So, it was a great victory though for kids in New Mexico and certainly makes sense. Kids who go to school OK yes-

Jen Wagner: They need textbooks.

Leslie Hiner: They can all have textbooks, it’s OK. But they didn’t really touch firmly on the religious liberty aspect. So, that means that piece is still hanging a little bit up in the air after the Trinity Lutheran case.

Jen Wagner: And we’ll get to that with the Montana case and some of the other future litigation that’s on the horizon. Which of those cases might be likely to pique the Supreme Court’s interest and perhaps get them to weigh in on that. But before we get there, let’s talk about Florida. Florida is obviously a huge school choice state, enormous participation in several programs and two of those have been litigated since they were started which has put all of those families in constant worry and fear that the program that they’re using to get their kids the best education that they can might disappear overnight with a court ruling. So, fortunately that does not appear to be the case and can you talk a little bit about what happened down there?

Leslie Hiner: Be happy to talk about Florida because you’re right: parents in Florida have had this litigation hanging over their heads for years. In fact, the Florida Supreme Court, when they issued their ruling, they spoke to that and said, “For 10 years we’ve been litigating this case. It’s time for this to be done now.” So, their ruling was very conclusive which I think is important for those families like you said who’ve been watching this case very closely. What happened was this: the teachers unions—and they’ve been behind all of this litigation against the school choice programs in Florida for a long time now—they brought a case challenging the adequacy of funding for public schools in Florida. But along the way they also alleged that their Tax-Credit Scholarship Program and their McKay Voucher for Children with Disabilities, that those programs somehow made the public school system not uniform, not efficient and that they also took money away from the public schools. That was the complaint. In its ruling the Supreme Court said, “No, that’s not the way it is.” First of all, as to the adequacy funding, the court referenced the trial court, so the trial court level. They had a month long trial. That’s a long time for a trial. For anyone who’s not been to court, going to trial for four weeks is a very very long time. There were 5,000 exhibits, countless experts that testified on both sides. At the end of that I don’t think either side could say, “Oh but wait, there’s more.” There was nothing more to say. So, it was fully vetted.

But the Supreme Court agreed with both the trial court and the appellate court ruling that said there’s been absolutely no evidence presented whatsoever that either a lack of funding was contributing to something negative in the public schools or that more funding would change anything. So, the court concluded funding really is not what moves the needle on academic achievement. And that’s what was proven during this extensive period of time at the trial court and then again vetting at the appellate court level and then again vetted at the Supreme Court level.

Furthermore, the court said that the Tax Credit Scholarship Program and the voucher program were just fine. So, what the court did is to say that really those two programs had no business being in an adequacy funding case and that the plaintiffs had not properly handled the legal part of that. However, the court was very specific in affirming the decisions of the trial court and the appellate court which held that the school choice programs in Florida do not in any way take money away from public schools. They do not inhibit the public schools in any way. They don’t make anything worse. And in fact those school choice programs make things better for education generally and for children specifically in Florida. They emphatically stated that. It was wonderful. That’s of course what we say all the time because we know this to be true but to see the Florida Supreme Court validate that was— it was what the parents in Florida deserved, a clear win, a clear decision by their Supreme Court and they got it.

Jen Wagner: And they can rest easy knowing that those programs are hopefully no longer in jeopardy. Although hope springs eternal on our side. You just never know where the next challenge will come from. And I think you raised a really really important point there that we combat all the time in the communications realm, in our advocacy, is that people lob this idea that somehow private school choice programs which, by and large tend to be a very small percentage of the student population in any given state, are somehow robbing public schools. And the Supreme Court in Florida said pretty declaratively that is not the case is a huge win not just for those families in Florida but also for those of us who believe very strongly that private school choice is the right option for some families and everyone should have access to it and it is not in fact hurting existing public schools.

Leslie Hiner: That’s true. Excellent.

Jen Wagner: Excellent news out of Florida but not such great news out of the great state of Montana where there was a ruling against their tax-credit scholarship program that I seem to recall made you, Leslie, very upset when it came down. So, hopefully you’ve had some time to cool down and be less upset and can explain what happened out there and what might happen with that case going forward.

Leslie Hiner: It’s true. I admit my first comments about that case were a little bit salty. And I still feel the same way—that the decision that was rendered by the Montana Supreme Court about their tax-credit scholarship program was just flatly wrong in so many ways. So, what happened was thsi: Montana enacted—it’s a very small tax-credit scholarship program but it was their first school choice program so good for them. And there are some children who are getting scholarships as a result. However, after the program was passed by the legislature, the Department of Revenue stepped in to adopt rules which is customary, nothing wrong with that, except for the fact that they decided that religious schools could not participate in the program. Now bear in mind the statute passed by the legislature didn’t say that. So, the Department of Revenue is really just making it up out of whole cloth. And this is one thing that the Montana Supreme Court absolutely got right. The Department of Revenue exceeded their authority by a lot. And the Montana Supreme Court recognized that they exceeded their authority.

However, Montana Supreme Court then kind of went off in their own little world and brought up other issues with respect to the programs that had not been previously raised and ruled that the program is unconstitutional. They also went so far as to speak to tax law and the way education is funded and tried to equate tax credits with being appropriations of the legislature. They most certainly are not. A tax credit means that your state is taxing you less because you have done some good deed or something that the legislature has recognized serves the public good.

So, for example, if you give money to a scholarship granting organization—so some kids can get a scholarship to get a good education—the state deems that as you actively participating in a public good, and as a result you get a tax credit for that which means that the state is taxing you less because you’re ponying up your own cash to help these kids and provide education in the state. However, the Montana Supreme Court didn’t see it that way. Somehow believed that the state has ownership in a taxpayers’ income and controls that income in some way to say that your money in your pocket can be subject to legislative appropriations long before any money from you has ever gone to the state for anything. That’s a real departure. And in fact, it’s the first time since, oh boy, this has been a long time, since the 90s, that any state court has concluded that tax-credit scholarships are appropriations or they’re subject to litigation and in any way. So, Montana is a real outlier. No question about it. This court has gone against the precedent that has been set by other states considering these very same programs. So, that’s the bad news.

Now the good news is that the Institute for Justice represented parents in Montana. They’re the ones who brought this case. So, the first thing they’ve done is they filed a motion with the Supreme Court asking them to hold up their decision because they intend to take the case to the U.S. Supreme Court or ask the U.S. Supreme Court to please take this case and consider it. So, the response—there has been a recent response from the state—and the state said, “Well, we disagree with your reasons. Blah blah.” Just proper. But the state also said that they don’t object to putting a hold on this ruling until the U.S. Supreme Court can decide whether or not they’re going to take the case. So that will be the next step. We’re waiting for the Supreme Court of Montana to rule. We expect now since the state is not objecting that there will be a hold on that ruling which means that for the remainder of this year, at least, that program can continue. So, the kids in Montana who are currently getting scholarships can continue to get those scholarships. That’s the proper outcome. And then we’ll see if the U.S. Supreme Court decides to take this case.

Jen Wagner: And it’s a mixed bag out of Montana. And since we are both lawyers are not allowed to say unkind things about my fellow lawyers, we can just say bless their hearts to those Montana justices. Bless their hearts. And I hope that perhaps this is a case that might move forward and the outcome might be that some of these Blaine Amendments you mentioned earlier rooted in some just very anti-religious, anti-Catholic sentiment from decades and decades ago. It might be time for those to fall by the wayside. So, we will see. We will stand by on Montana and whether the U.S. Supreme Court takes that case. And we will look ahead to our last two cases, last two states. So, there’s a pending case in Maine that I’d love for you to talk about and then finally some ongoing litigation in Tennessee about adequacy funding. So, if you could talk about both of those, that would be great.

Leslie Hiner: I will. So first the Montana case as it goes up to the Supreme Court will invoke the Trinity Lutheran case and would give the U.S. Supreme Court an opportunity to more fully that they’re ruling in the Trinity Lutheran v. Comer case as that was not done in New Mexico, was not done in Colorado. Those were the two states where they expected that to happen, but it didn’t happen. Now Maine is a situation where they’ve had town tuitioning which is similar to a voucher program since, let’s say I think 1873 I believe… this is not a new program by any stretch of the imagination. However, Maine made a bad decision to exclude religious schools. So, there are some parents in Maine who are not happy about that and are really struggling to understand why a religious school would be excluded again just because they’re religious. There’s not a lot of sense behind that. So, there is litigation. The name of the case is Carson v. Hasson. Currently the status of the case it’s at the U.S. District Court of Maine. So, it’s in federal court but at the very first level. The ACLU and Americans United for Separation of Church and State filed motions to intervene in the case. And that’s just where the case is right now. So, in the very early stages.

But the issue at hand is religious liberty and when is it appropriate for a religious entity to participate in a publicly funded program and when, if ever, is it not. That’s the question on the table both in the Montana case and now also in the Maine case. So, these are two cases that that people should watch. Pay attention to those cases. We’ll certainly be talking about them here.

Now, Tennessee is a little bit of a different animal. Tennessee has an adequacy funding case. It started back in 2015 and the allegation arose out of Shelby County, which is basically the Memphis area of Tennessee, and they are challenging the funding for public schools saying that it’s inadequate. What’s interesting about this is, first of all, it’s been pending since 2015. But also in April of this year they have scheduled a non-jury trial, which simply means that this will be a trial before a judge who will be hearing the case, and should be very similar to what we saw in Florida where Florida had the four week trial vetted every possible issue related to education and funding. We expect the same thing to happen in Tennessee in April. And that case is Shelby County Board of Education. It was originally versus Haslam when Haslam was the governor but he’s not anymore, now it will be Shelby County Board of Education v. Lee, who’s their new governor in Tennessee. And again you can check back here, we’ll be reporting as there’s news to report.

Jen Wagner: So, check our blog, listen to our podcast. And Leslie it sounds like you’re going to have a really really busy year. Not that you didn’t have a really busy 2018. And I would also be remiss if I didn’t note you can always support our efforts by going to our website and offering your resources to help Leslie and all of our allies in the legal community push back or fight forward on some of these cases that very much affect families in these states, programs in these states and potentially knocking down some roadblocks that have been in place for a very long time that have prohibited families from accessing the schools that they want to access for their kids. So, we will definitely be back here in the studio in the next couple months for updates on those cases. And thank you everybody for tuning into another edition of EdChoice Chats and have a wonderful day.

Leslie Hiner: Thanks, Jen.