Ep. 123: Legal Updates with Leslie – TN, FL, MD and MT

July 16, 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 an update on the Montana tax-credit scholarship case.

Jennifer Wagner: Hello, and welcome to another edition of EdChoice Chats. I am your host, our VP of communications, Jennifer Wagner, here at EdChoice and I am joined today by our VP of Legal Affairs Leslie Hiner, who has a million updates on all the litigation that’s going on right now in the school choice world. Thank you for joining me today, Leslie.

Leslie Hiner: Thank you, Jen. You’re right, there is a lot to talk about in the legal world. That can be both a blessing and a curse, but we’re trying very hard to make it a blessing and not a curse. So, on that happy note, I’m happy to tell everybody about what’s happening now.

This year, we saw the state of Tennessee pass a new voucher. It’s called an Education Savings Account, but it is a voucher, though, that will also allow people, after they pay tuition at a private school, to then use some of the remaining money for therapies, etc., like a more traditional ESA. However, not everybody’s happy about that. We hear that parents are very happy about it.

However, the Shelby County and Nashville Metro school boards have made very public statements that they intend to sue to block the program. There are, of course, anybody who opposes these types of school programs, they have all kinds of different reasons, but in this particular case, the legislation affects those two areas in particular. Shelby County is primarily Memphis, and then also the Nashville-metro area. Their constitution prohibits basically targeted legislation, so they’re alleging that they’ve been targeted by this legislation.

But the fact of the matter is, the legislation is geared toward those school districts in those areas where they’re experiencing the highest rate of failure, where the kids are not getting the full kind of education that they need, and it just so happens that in the state of Tennessee, those are the two areas that have the greatest need and that have been experiencing the greatest failures, which in our way of thinking is where parents need the most help.

So, they have in fact promised publicly that they will be suing, so you can look for that.

Jennifer Wagner: Take that to the bank and wait for that lawsuit. I think our other would be could be case comes from a state where we’ve seen a lot of litigation in the past and none of it has been successful. What’s going on down in Florida?

Leslie Hiner: Yes, Florida. You know, if there wasn’t a lawsuit going on in Florida, I don’t know what people would do. I don’t know how they’d spend their time. They have been really burdened, oh gosh, for, I guess it’s been now 15 years or more that they’ve had litigation over all kinds of different forms of school choice, which interestingly enough has been very successful in Florida.

There are literally over 100,000 children today that are experiencing a better education because of their school choice programs in Florida. But that has not stopped the opponents of school choice.
This year, Florida enacted a new voucher. It is a statewide voucher, it’s limited to kids from lower-income families, not just low income, it goes a little into middle income families as well. However, Ron Meyer, who is an attorney for the teachers unions, has made a very public statement that they will, in fact, be suing to stop this program. They’ve also been joined in that commentary by the League of Women Voters, by the ACLU of Florida, and by Americans United for Separation of Church and State, who have stated publicly that they intend to join that litigation.

Now, their main cause of action here is to say that the school choice schools, that they’re not uniform with the public-school system. There is a uniformity clause in Florida’s state constitution. In fact, previously, there was, in 2006 I believe it was, they had a prior voucher program that was overturned by the Florida Supreme Court at that time in a decision called Bush v. Holmes, which has been roundly, soundly pounded, just disregarded by courts across the country as being a not very good decision. So, there’s been a lot of concern that that decision really should be overturned. It’s not good law. And now there will be an opportunity in Florida for them to right the wrong of that prior decision and uphold vouchers in Florida.

Now, that said, this promises to be quite the battle in Florida, just as every lawsuit in Florida has been. So, if you are a supporter of educational freedom, if you’re in Florida, and you’re parents, then I urge you to speak up and make your views known about how important it is for parents to have the right and the opportunity and the funding to be able to choose the education that’s right for their own children.

Jennifer Wagner: And hopefully they will do that. I should know this, but there are also … I know in Tennessee there is an additional pending case that is not related to their ESA voucher plus. program. Is there any pending litigation over legislation in Florida?

Leslie Hiner: You’re right. There is an adequacy funding case that’s pending in Tennessee. That one has been delayed, and not sure if that is connected or going to be connected with the new litigation. We’ll see. But in Florida, though, it’s just about the voucher now. The prior case that had been active for 10 years was won by the proponents of school choice, I’m happy to say. And the courts actually, in that case, said that the school choice programs do not violate anything regarding uniformity. They’re actually, both the lower courts, trial court and appellate court found that not only that, but they confer a benefit for all these children. When the children are benefited, the state benefits and it’s all good.

Jennifer Wagner: Everybody’s happy. Families are happy, students are happy, and that’s why we do what we do here.

Leslie Hiner: That’s exactly right.

Jennifer Wagner: So, moving on to the state of Maryland, kind of an interesting case developing there with respect to their LGBT discrimination law and their voucher program which falls underneath that law. So, talk a little bit about what’s going on in Maryland.

Leslie Hiner: In the state of Maryland, a few years ago they adopted a voucher program called the BOOST Program. As part of the BOOST Program, they have a very specific provision in the program that says that any school that participates in the program must agree to accept all children, including all children LGBTQ. So, open admissions, essentially. The program has been very successful. It started small, but it’s been growing actually very nicely. However, just this year, the state kicked out one of the schools. Bethel Ministries is the name of the school. It’s a Christian school. And has called on them to return about $100,000 that the school received from the parents of children who attended the school using vouchers.

Now, this school did not deny admission to anyone. They do not intend to ever deny admission to any LGBTQ student. So, it’s not that there is a violation of the law that has occurred, it has not. However, the state basically looked at this school’s website, and as a statement of faith at this school, they believe that marriage is between one man and one woman, and they believe that your gender identity is granted to you by God at birth and should be cherished and not changed. That’s their statement of faith. Now, that doesn’t mean that they will deny admission to anyone who does not necessarily conform to that statement of faith. This, of course, for many schools of faith, is always that question. Just like even in my own family we’re not Catholic. We moved our children from public schools to Catholic schools, and there are some things that the Catholic church teaches that we don’t follow. But we worked together and we found harmony and our children received a truly great education, which is often the case when LGBTQ students attend religious. schools where the faith believes something very different from where those kids are, where their families may be. But nonetheless, they learn how to live together, work together, become educated together.

So this action by the state of Maryland is really very preemptive. It’s wrong and it’s just clearly discrimination against this school because of their faith, not because of any action that they have taken. They have not taken any actions wrongfully.

Jennifer Wagner: Well, and it’s fascinating because there’s so many different facets to this case. There is the federalist issue of, Maryland passed a program, they put this into their program, they put the LGBTQ non-discrimination language in there, and they had schools that didn’t participate because of that, but this school chose to sign the pledge, hasn’t kicked anyone out, and actually, from the news stories that I’ve read, was willing to change their handbook to say affirmatively, we would never ever kick any of these students out.

So, you’ve got that angle, and then you’ve obviously got this brewing debate which will probably be a topic of a completely different podcast, over LGBT students. And then, I mean, juxtaposed up against, you’ve got states like Florida that have passed anti-bullying school choice programs, and we know from research that’s done by the national organization GLSEN, which goes out and does an annual poll of LGBT students, we know that those students are disproportionately bullied in public schools.

Leslie Hiner: That’s correct.

Jennifer Wagner: So that, whether it’s a school in Maryland or one of these schools in Florida, they are seeking other options because they’re not being accepted in the public system. So, more of a commentary than anything, and a preview of coming attractions, but that case out of Maryland’s going to be a really interesting one to watch.

Leslie Hiner: It will be, yes. And I think that’s another one of those where people should be paying attention to this, because if nothing else, we will all learn many lessons from this litigation.

Jennifer Wagner: Absolutely.

And now, we get to get to the big kahuna, the one that everyone’s talking about, the case that just got accepted by the Supreme Court a couple of weeks ago. Tell us about Montana and what, that case out of Montana, this little tiny tax-credit scholarship program, the little engine that could, get all the way to the Supreme Court and could very well eliminate Blaine Amendments and pave the way for school choice programs in states that have never had a chance to present those options to families.

Leslie Hiner: Yes, you really teed that up perfectly. In Montana, their program is the smallest in the country. Of course, it’s a small state. There are few people who live there, in a very, very big state. But they’re lovely people. The plaintiff in this case is a woman named Kendra Espinoza. Kendra lives up in Stillwater, Montana, and she chose a school to send her children to on scholarship. She’s just really struggling, even with the scholarship, just struggling to make ends meet and make sure she can send her kids to the school of her choice, where they really needed to be. They had some issues for why they needed to be in a different environment, smaller environment, where they would get more attention and just be valued more one on one. It’s working out very well. But then their Supreme Court came along and said, “Well, we can’t do this tax-credit scholarship program in the state of Montana,” and they cited their constitution, where they have a Blaine Amendment that says that there can be no funding directly or indirectly of religious institutions from the state.

Now, for those of you who understand school choice, you will also understand that school choice does not fund private schools. School choice funds parents. Parents then decide where and how their children will be educated with that funding. But the Montana Supreme Court missed that point all together. Not the greatest decision I’ve ever seen written, but apparently the U.S. Supreme Court—well, they never give their real reasons for why the accept a case—but I’d like to say they accepted the case at least in part because Montana got it wrong.

Now, there is another big reason, though, and typically, and not to be so glib about it, but to be more legally accurate at this point, that people should know, that the U.S. Supreme Court will accept these cases from a state Supreme Court, not on a regular basis. But they will accept it when there’s been a conflict across the country. We definitely have a conflict in this area. In some states, there are no Blaine Amendments, so this kind of restriction about allowing religious. private schools to participate in school choice programs just, it’s not an issue, but in other states, it’s prohibitive. The courts in these various states, like for example, in the state of Oklahoma, they have two Blaine amendments, very restrictive. However, their Supreme Court came along in a very surprising decision, 9-0, said that, “No, we’re not going to follow these Blaine Amendments. They’re discriminatory and we’re not doing it,” and the funding goes directly to the students and not going to religious institutions.

But then you have other states where maybe they have a less restrictive Blaine amendment, but legislators are really nervous. about the constitutional question. So, if you have a Blaine Amendment that is restrictive about the state funding, in any way, religious institutions, a lot of people get nervous about going to court, being sued, and so they may hesitate to pass school choice programs.

Jennifer Wagner: I do want to jump in real quick, because I think for those of us who work in school choice, we know what these Blaine Amendments are and where they came from. But it’s important, I think if you could spend just a minute and talk about … Because I think it’s a fascinating history of K–12 education that gets overlooked in our country, that these amendments that prohibit public funding from going to religious institutions are born out of a profoundly anti-Catholic sentiment that seized the nation in the late 1800s. That’s how we got this patchwork of states that, some have these restrictions, some have more severe restrictions, and all because James Blaine just really did not appreciate the Catholic faith and wanted to make darn sure—not damn sure, darn sure—that that money never, never went to any Catholic churches, or Catholic schools, or Catholic anything, honestly.

So, can you talk a little bit about the origin of those, and kind of how we got where we are, that the Supreme Court is ready finally to take up this issue?

Leslie Hiner: Oh, sure. Yeah, James Blaine was from Maine. Blaine from Maine. What are the odds that those names would coincide like that?

Jennifer Wagner: That’d be a hashtag these days.

Leslie Hiner: It would be. Yeah. Maybe it should be, we should talk about this. So, he’d been in Congress, and then he was Secretary of State. What he tried to do is to have a constitutional amendment to the U.S. Constitution that would insert this provision of no direct or indirect funding of any religious institution in the U.S. Constitution. Well, that effort failed. Word has it in the history books that he was personally affronted by that, not very happy that the country said, “No, we’re not going to do that.” And so, then he went about the business of trying to get every state to put these Blaine amendments in their state constitutions.

You’ll find on the east side of the country that some states have the Blaine Amendments, other states don’t, and they may vary in the wording also. Some are very, very simple and they’re not very extensive, others are a little more so. But as you start going west, west of the Mississippi, then about that time when states were looking at statehood, what happened was then adopting a Blaine Amendment in your state constitution became a requirement for statehood. So, there are some, like in South Dakota. I was just reading not long ago how they’re pretty unhappy about the fact that this was forced upon them and now they’re left to live with it, and they’re not quite sure what to do with it.

But the discriminatory nature of it was really profound, especially as it applies to education, because at the time, public schools were … Well, you could call them Protestant schools, because the Bible was taught, Bible verses were read. Some of you who are older who are listening to this may remember being in elementary school when somebody read a Bible verse every day, and there would be a prayer for, “Please let me learn and not fail my test today,” but that actually could be done openly and not just secretly by children who hadn’t studied enough the night before.
What happened was this, when Catholic immigrants came over and maybe some people know, maybe some do not know, but the Catholic Bible has a few other chapters in it. It’s a little different than the Protestant Bible, so the Catholics also wanted their readings to be included. Well, and this is what really started the fracas of, “Oh, we can’t, we can’t have that. We can’t have these Catholics infecting our public Protestant schools.” This clearly was religious discrimination. It’s well documented all across the country.

So, this very discriminatory language is still existing in the state constitutions of 34 states, and as I said earlier, the courts and also the states have treated these amendments in very different ways. So it can happen that you either have school choice and you have certain religious liberties because you happen to live in a state that has a court that has ruled well, or you have leaders who have stood up to this restrictive language, or you don’t have those opportunities because you live in a different state where the courts have been restrictive or your leaders are jU.S.t concerned and nervous about going forward. And that’s not right.

Jennifer Wagner: So, this, I mean, it is not an understatement to say that … As you said in your preface, this could be a landmark case, but this could truly open up the landscape of educational choice in places that, whether it’s because they have a bad local or state court ruling or because their elected officials just don’t want to touch this issue with a 10-foot pole because they’re afraid of that litigation, that that obstacle, those barriers would or could potentially be gone.

Leslie Hiner: That’s correct.

Jennifer Wagner: If that happens, and I realize that lawyers don’t like to live in the world of hypotheticals, but if that were to happen, if the court comes down and says, “You know what? Goodbye all of this anti-Catholic, all of this history that we’d rather just close the door on, because it doesn’t make U.S. look really good as Americans,” do you think that states would kind of rush forward and pass more school choice programs, or is this going to sort of trickle out and people are going to try to find their footing and that we might see a gradual expansion over the next five or ten years?

Leslie Hiner: Well, I think that people generally are cautious about reacting after there’s been any kind of court decisions, even if they’re real favorable. It takes time. I mean, just like choice. Whenever a voucher program is enacted in any state, the opponents will always say, “Oh, well, if this happens, then all the public schools will close tomorrow and it’ll just be a travesty.” And of course that never, ever happens. Not true. It takes time for parents to understand, “OK, now there’s a new opportunity, so what does that mean?”

First, parents need to get that information, then they need to really try to understand what it means in their own family. And then of course, if you’re a parent, your child’s in a public school, you have a new opportunity, but then you also have to weigh, “But does my child need this opportunity?” And if the answer is yes, then that’s just great, and that parent is going to rush to get that opportunity for their child. But if not, then the child will stay in a public school, that child is successful there. So, it really is, it’s just a human process of communication and evaluation. But I do think that there are plenty of legislators and also parents in states that have been just restricted and they felt really pretty held down by the situation. I think they’ll be quick to act. That, I think, will happen. I think they’ll be very quick to act on that.

Now, the U.S. Supreme Court is a pretty great body. They don’t always say everything that we want them to say in exactly the way we want them to say it, so people should also understand that the ruling that comes down on this case could be very narrow or it could be very broad, so it could affect everyone or it could be more limited in its application. That’s purely at the discretion of the Supreme Court. But the bottom line is this, that these Blaine Amendments are contrary to the First Amendment of the U.S. Constitution. That’s really the question on the table presented to the U.S. Supreme Court, to answer that question. Is this, in fact, the situation where these Blaine Amendments are contrary to the U.S. Constitution, like we believe they are?

Jennifer Wagner: And it does sound like, just to kind of recap a little bit as we conclude here … So, obviously we’ve talked about Tennessee and Florida. Those are kind of off in the distance, things that are going to happen. Maryland is underway. But it’s my understanding, from talking with you, that the Supreme Court is kind of in a bit of a rush to hear this Montana case. They accepted cert on it two weeks ago, but they’ve asked for all interested parties to brief the case in the next couple of months. Is that right?

Leslie Hiner: Oh, even quicker than that. Yeah, actually, the first briefing deadline is August 12. That’s really soon. But there is an extension of time request, but that may or may not be granted. There’s no real guidelines for that one way or the other. A lot has to do with the Supreme Court. They decide a lot of cases during the course of a year, and everything has to be scheduled, so it’s really part of the scheduling, whether there will be an extension of time or not.

In the big picture, though, we expect that the briefing in this case by both sides will probably conclude this fall. The oral argument in the case may come as early as maybe December of this year, or it could go into the early part of next year. With or without extensions of time, that’s generally speaking, the time frame that we’re looking at. Now, just because they hear the case doesn’t mean that they’re going to decide it the next day. They do take their time, and especially on cases that are this big, that have the potential to be the landmark decision that really makes some significant changes across the country. They will take their time, be very deliberate in their decision making. However, they will decide the case though, before the end of June next year. So, that’s our time frame.

You can look to us for more information on this as we go along. We do intend to file a brief at the U.S. Supreme Court. We filed a brief with the Montana Supreme Court, we filed a brief with the U.S. Supreme Court in support of asking them to please take the case. We will be filing another brief before the Supreme Court in support of this case as well. You can please check back with us and we’ll try to keep you informed.

Jennifer Wagner: We absolutely will, and it should … I’m going to embarrass you a little bit here in saying that you say we—and it is we as EdChoice. But you are the head of our Legal Defense and Education Center here, and you do a lion’s share of that briefing work. Forgive me, but I just want to say thanks for all that you do, and I know you work with partners across the country to make that happen.

Leslie Hiner: Thank you, Jen.

Jennifer Wagner: But to have our voice heard in this conversation is profoundly important. We’ve been doing this work for 23 years, and a lot of it has been against the tide of litigation and against the tide of historical legislation and constitutional amendments. By the way, folks out there, if you’re listening, you can go on our website and donate to support the efforts that we …

Leslie Hiner: Yes, please do.

Jennifer Wagner: Because as it turns out, legal stuff isn’t cheap. It’s not free.

Leslie Hiner: It is not.

Jennifer Wagner: But it is a labor of love. So, Leslie, thank you for all that you’ve done for families across the country and at the state level. And you know what? Maybe we’ll get to go out to D.C. and hang out outside the court and see history in the making.

Leslie Hiner: That’s right. Oh, we’ll do that for sure. We’ll do that for sure.

And I would like to add here, too, you made a point that I think is really important. We stand with families. One thing is really clear, the mission that we’re on for school choice is about empowering families. We just believe in that so strongly, that parents, families should have the right to decide how and where their kids are educated. And this case coming from Montana, it began with a family. Began with a family that had a real, real need.

I hope that we can bring Kendra Espinoza more to light so people can get a sense of who she is. She’s just a real dedicated mom, just trying to do right by her kids. That’s the long and short of it. She shouldn’t be hampered by the state based on some crazy law that came from some crazy guy out of Maine who didn’t like Catholics. That’s just wrong, and it’s a wrong that hopefully our U.S. Supreme Court will right very soon.

Jennifer Wagner: We will stay tuned. You can check out updates on our website, edchoice.org. As Leslie said, we will definitely keep posting about these cases, this ongoing litigation, and anything new that comes up—good, bad or otherwise—for the issue of school choice and for educational opportunity for families across the United States. So, thank you again for joining me today, and thank you all for listening to another episode of EdChoice Chats.

Leslie Hiner: Thank you, Jen.