Ep. 141: Legal Updates with Leslie – Montana and Maine

October 3, 2019

In today’s episode of EdChoice Chats, our Vice President of Legal Affairs Leslie Hiner discusses recent school choice litigation across the country, including the amicus brief she recently filed with the United States Supreme Court.

Jennifer Wagner: Hello, and welcome to another edition of EdChoice Chats. I am your host, our VP of Communications Jennifer Wagner. And I am joined today by our VP of Legal Affairs and head of our LDEC, the Legal Defense and Education Center, Leslie Hiner. Welcome, Leslie.

Leslie Hiner: Well thanks, Jen.

Jennifer Wagner: We have a couple big cases here to discuss and maybe a couple of odds and ends but let’s start with the really big one that’s made a lot of headlines that’s probably the next up, the Espinoza case which you have written and filed an amicus brief in on behalf of EdChoice.

Leslie Hiner: That’s correct. So, our regular listeners will remember that the Espinoza case is the one that arose out of Montana. Montana has a tax-credit scholarship program and their Supreme Court ruled that it was unconstitutional, not a great ruling and we strongly believe that court was wrong but now the U.S. Supreme Court has decided to take up the case and we’ll see what they think about that decision. So, yes, the initial briefs have been filed in that case. We filed a brief at the U.S. Supreme Court just two weeks ago and now the next round of briefs from the opposing side will come in November and then reply briefs due in December. So, all of that means that we aren’t going to have oral argument in that case at the U.S. Supreme Court until January, February. I’d say right now it’s looking more likely that it may be February of this next year. So, that’s the time when you want to tune in.

But frankly I think the press will really pick up on oral arguments in this case. It’s one of the biggest cases that we’ve seen for a while related to the First Amendment, and religious liberty, and your rights under the constitution for free exercise of your religious faith not just at home and in private but actually out in public. Equal protection, your right to free lead associate with people you like, people of the same faith, so these are pretty big issues. Religious liberty is our first right under the Bill of Rights and it’s really important that it be sustained and strengthened to the fullest extent by the U.S. Supreme Court. It matters not only to school choice and educational choice, but for a lot of other reasons, too. It sustains all the rest of the rights that we have. So, I encourage everyone to check back with us. We will try to regularly update that as we have more news to share on that case. And again sometime in the spring you’ll probably be hearing a lot on your news feeds about what’s happening with this case.

Jennifer Wagner: Yup. Tune into your EdChoice social media channels for that and hopefully Leslie it means you get another trip to the Supreme Court to go to the oral arguments.

Leslie Hiner: That’s right.

Jennifer Wagner: And yeah, for our non-regular listener—I guess we have our long-time listeners, first-time callers, and our non-regular listeners—this case is a really, really big deal. And when your timeline is filled to the brim with those stories it’s because this is the case that could potentially do away with those pesky Blaine Amendments we talk a lot about around here. And Leslie, you’ve already gone into the significance of the case, but what would it mean to have those amendments gone and to have a freer landscape for school choice policy to be developed?

Leslie Hiner: I think the impact could be actually quite dramatic. So, James Blaine was from Maine and he developed this idea that the public schools should be Protestant as they were back in the late 1800’s when James Blaine was kicking around. And so, he developed this idea to change the U.S. Constitution to make it more restrictive against including funding for sectarian schools. Note the language sectarian at the time and even to this day means well let’s see those parochial schools. There is a big influx of Catholic immigrants right at the time and they had a tough go of it in those beginning years in particular and James Blaine wasn’t too happy about them coming into the public schools with their faith. It was just a little bit different from mainstream Protestantism.

And so, this is how it started. So, when he was unsuccessful in getting this into the U.S. Constitution then he set about the business of seeing to it that the states would adopt this in their constitutions. And in fact some of our states were actually bribed to get statehood. They wanted statehood and the bribe was, “Well, OK but you know we have this Blaine Amendment and we really think that we’re not really going to approve your petition for statehood unless you include this Blaine Amendment.” And there are some of those states that are still pretty bitter about that today. So, there were 38 states originally, there now are 37 still remaining Blaine Amendments. And in some states like in Indiana our Supreme Court said, “Yeah, we have a Blaine Amendment but we don’t care. It’s bad, it’s discriminatory, it’s grossly discriminatory against religious liberty and it does not apply to education.” Across the board great decision.

So, education is in pretty good shape here in Indiana but that’s just not the case in other states. And what happens is that when legislators are seeking to give more educational options to families they always have the question, “Well, is this constitutional and how do we do it, write it so that it is constitutional.” But they will get a strong chorus always from the teacher’s unions that will say, “No, it’s strictly unconstitutional. Don’t you know anything about James Blaine and that language in our constitution?” And that can be pretty daunting for anyone. If you’re a legislator and you really believe in educational choice and you want to pass this you also need to have some understanding that this will pass constitutional muster under your own state’s constitution, that’s important. So, I think if that cloud is lifted from a lot of these states that fall into that category in particular I think that you’ll see a lot more activity and a lot more willingness of legislators to really jump in and do what’s right for parents and kids.

Jennifer Wagner: Well, I don’t know whether to, and since I get the microphone here, whether to make a James Blaine from Maine segue into our next topic or the main event of our podcast, both are equally cheesy. But Leslie, tell us about your most recent undertaking. You actually pulled an all-nighter to get this done. It’s an amicus brief and in a case out of the great state of Maine, the first state of Maine called Carson v. Makin. And tell us a little bit about that case and specifically what is your role, EdChoice’s role in that case?

Leslie Hiner: Well, first of all this is actually my second all-nighter for this case. We really believe in what we do here so we go all out to do whatever it takes.

Jennifer Wagner: Team no sleep.

Leslie Hiner: That’s right. So, our role in this case here at EdChoice is to support the main players in this case which are families in the state of Maine and they are being represented by the Institute for Justice and Tim Keller in particular and his team at the Institute for Justice. The situation is this, that the first school choice program was a town tuitioning program passed in Vermont in 1869 and then the second one was in Maine passed in 1873. So, town tuitioning is a voucher type system but it’s done differently though than a typical voucher because in these states, in the Northeastern States, they have a lot of small towns and those small towns have a lot of local control, and autonomy, and authority over education.

So, in these small towns a lot of them are so small that it doesn’t make any sense for them to have a school which means then the town needs to then pay tuition for their children in their town to go to a school maybe in a neighboring town. Now, here’s where it gets interesting in Maine. As I just said to you there are 37 states who have these Blaine amendments and James Blaine was in fact from the state of Maine. He was an elected official there. He then went on to become the U.S. Secretary of State. A very famous politician, had a lot of sway in Maine. However, he didn’t have enough sway to get a Blaine Amendment in the constitution of Maine. I love the irony of that, I really do.

So, there’s no Blaine Amendment there, which means that when they enacted town tuitioning back in 1873 the kids could go to private schools, they could go to private religious schools, no problem and that continued all the way up to 1980. Then an odd thing happened. I really think this just came from left field. They had an attorney general who was asked by a legislator, “So, we’re paying for kids to go to private religious schools. That’s OK, right? Is it constitutional?” And the attorney general wrote an opinion that’s just not the greatest legal writing I’ve ever seen saying that it would be unconstitutional not under Maine’s constitution but under the U.S. Constitution.

That was in 1980. Now, let’s fast forward. The Cleveland voucher case went up to the U.S. Supreme Court and that ruling came down, let’s see that was 2002 I believe, and the court was very clear about the U.S. Constitution’s position on this kind of voucher funding which is simply this. Because the money goes from the state directly to the parent and then the parent decides where and how to use that education funding for the child. The court said, “It’s real clear that once the parent gets that money that’s the parent’s money. It is no longer under state control. The parent makes that decision about whether to send the child to a religious school or a non-religious school. Whatever the parent believes is best for that child.” And that’s how our first amendment under the U.S. Constitution applies.

Now, sadly in Maine there were a subsequent lawsuits brought after this case in Cleveland but they concluded that, “Well, OK, yeah maybe we could fund private, kids to go to private religious schools but we don’t want to.” That pretty much rested there. People in Maine were really rendered a great disservice by that. But now some parents have come forward today and again in light of another decision out of the U.S. Supreme Court the Trinity Lutheran case from a couple of years ago where the court said that it is, “Odious to the constitution to deny a public benefit and a public benefit program to a religious entity just because they’re religious. That’s direct discrimination against religion and against that particular religious entity.”

So, this then has breathed some life into the parents in Maine to say, “OK, now we have more firepower from the U.S. Supreme Court that said, ‘Remember the Zelman decision? We actually weren’t kidding about that.’” And so, they’re hoping that now with the second try that they will be able to restore their religious liberty in Maine that they had for over a hundred years and then lost on the strength of motivation by one attorney general back in 1980. So that’s what this case is about. It’s very heartfelt parents in their initiative here. Maine is considered to be one of the least religious states in the country and it’s the oldest state in the country as in their older population is big and they’re losing their younger population.

So, for parents of young children in that state who intend to stay in that state and really help to reinvigorate it and build it, if those same parents are people of faith then their faith becomes really critically important to them. They are very much in a minority situation in Maine. And so, preserving their religious liberty just is, I guess maybe it’s a little more obvious to them that this really matters so they’re great, great families who brought this case forward.

Jennifer Wagner: That’s amazing and I’m so glad that we’ve been involved in that. It is remarkable how one politically motivated elected official can change the course of history with a few pen strokes. What’s the timeline looking like? Is this also something that we should be looking for an update in next year, first quarter of next year?

Leslie Hiner: Yes. But for those who are interested in looking at briefing as we go along the Institute for Justice filed their brief in this case just last well actually this week and my brief is due in just a couple of days.

Jennifer Wagner: Hence the all-nighter.

Leslie Hiner: Yes. Right. Little bit of a nervous timeframe for me right now but anyhow, but that’s the timeframe for that. And then in about another 30 days the state of Maine then they are the ones who have been sued in this case. They will then file their response and then about a week after that then people who are filing Amicus briefs in support of Maine’s position then they’ll file. Then about a month after that then Institute for Justice will get an opportunity to reply to that. And then after that then the court will set oral argument.

Now this case, what happened at the trial court level, this is in federal court so it was a district court and the court ruled in favor of the state of Maine but also couched that decision and said, “Wow, the arguments on both sides were really strong.” He commended the lawyers for their great arguments. That’s pretty unusual. But he was right they were great arguments. And then said, “Look, I’m just going to maintain the status quo because under stare decisis, prior cases, I don’t think I have the authority to overrule those cases. And we know that this case is likely to go up to the U.S. Supreme Court anyway. You don’t really care about what I think about this case so Godspeed.” It was a really interesting decision.

So, now we are at the appellate stage and the state of Maine isn’t the first circuit court of appeals under the federal court system. So, that court sits in Boston and so we’re at the appellate level so you can expect to see oral argument in this case I’d say probably in the spring. It could go a little later than that I’m not sure. Different courts have different schedules but I think the first circuit being in Boston they’re pretty busy out there. But again, keep in touch with us. We’ll update you just as soon as we get information about when things are happening so that, so you’ll know.

Jennifer Wagner: Excellent. So, we’ve touched on two very big cases and I’m looking down my list of other things that we could talk about or other things we have talked about and I’ve got states that include Florida, Maryland, Tennessee, Indiana, Nevada. And sorry listeners we’re actually going to touch on none of those because there’s not much to update you on. But if you had a dividing rod or a Ouija board where do you think we should look next, Leslie, in terms of the legal landscape on things that might be bubbling up?

Leslie Hiner: Well, given that we’re in October now time flies when you’re having fun. It just dawned on me it’s fall now. So, the end of the year is just right around the corner and we’ve been promised by lawyers for the teacher’s unions in Florida and the Memphis Shelby County school boards and the Metro Nashville school boards in Tennessee that they would have litigation against the new education savings account in Tennessee and the new voucher program in Florida before the end of the year. So, given that’s a pretty short timeframe now to the end of the year I think that’s, or we’ll probably see some real movement next.

In both of those states I also expect that litigation to be really contentious. I think that’s going to be pretty hot and all the issues that you might think about ever touching on educational choice will probably be raised in both of those cases. As for the other states there’s sometimes in the beginning stages of litigation in particular there’s a dance that the lawyers do with the court to really try to figure out the best way to handle cases. And so, some of the other cases are really in that process right now but again just as soon as they break and there’s some real news to report to you we’ll make sure we do that.

Jennifer Wagner: All of which is to say tune back in, in the next couple of months there will be more legal updates. And I do, before we sign off, I do want to touch on one thing you mentioned briefly earlier which is the trainings that we do and the work that you do with lawmakers or with state partners who reach out and ask, “Hey, Leslie, is this legal?” We could do an entire podcast on that probably.

Leslie Hiner: That’s true.

Jennifer Wagner: “Can I do this constitutionally?” And I just want to put in a plug for LDEC, the Legal Defense and Education Center, and for you as a resource as we go into the planning months for the legislative sessions that will get underway January of next year. If folks have questions, if they wonder is this constitutional, what action can they take? How can they get in touch with you and how can you be of help to them?

Leslie Hiner: Well, I always tell people it’s an easy phone call. So, our phone number is on the website as is my email address as well. And literally it’s just as easy as that. Just call, email, and we’ll respond and then I’ll try to figure out the best way to get you the information you need whether it’s just giving you information that I can send to you in an email. Or in some cases if there are a group of people in particular that are working on educational choice in the state or they’re trying to draft some legislation and then they get hung up on this question, “OK, we think it’s constitutional.”

But if you’re not a lawyer it’s really hard to make that judgment call on maybe you think you know that it’s constitutional but you don’t know why. And when it comes to drafting legislation or even just talking about these issues it matters to be correct on the legal points. I think it especially matters for the parents that you are ultimately trying to serve because you don’t want any of that to get all confusing in the messaging or in the language. Parents have a tough enough job just raising kids. The more we can be really clear about what we’re talking about the easier it will be for these parents who are really looking to us to do our best for them. So again, it’s just…

Jennifer Wagner: Reach out and ask your friendly VP of legal affairs at EdChoice. And I would be remiss, too, if I didn’t put in a plug for the rest of our team. As Leslie said, if you’ve got a group of people out there that are looking to get organized, looking to have training on messaging or how best to reach out to lawmakers in state please please get in touch with us. We are here to help. You can email media@edchoice.org and we will get you in touch with the right person in the right department to help out. And as we said earlier tune back in probably next month, certainly in the first quarter of 2020, and we’ll be here to update you on all the new legal news. So, thank you, Leslie, for joining me today and have a great day.

Leslie Hiner: Thanks, Jen.