Ep. 21: Legal Look Ahead with Leslie Hiner

November 20, 2017

The EdChoice team is investing more than ever in tracking school choice, children’s rights and teachers’ rights in the courts. Our VP of Communications Jennifer Wagner sat down with our VP of Legal Affairs Leslie Hiner to talk about the state of legal affairs in the school choice movement right now, what’s on the horizon and the supports EdChoice will provide to school choice’s defenders.


Jennifer Wagner: Thank you for joining us for another episode of EdChoice Chats. I’m your host and VP of Communications Jennifer Wagner and I’m joined today by our Vice President of Legal Affairs Leslie Hiner for an update on what’s been going on on the legal front in the school choice movement. Thank you, Leslie.

Leslie Hiner: Thank you.

Jennifer Wagner: Let’s get started. What is the state of legal affairs in the school choice movement right now?

Leslie Hiner: Jen, today the state of legal affairs in school choice is a little bit of a mixed bag, but let’s begin with what’s really positive. What’s really positive is that we’re beginning to see some real trends in state Supreme Court rulings that are very positive for school choice, and specifically the courts are recognizing that a school choice program provides funding directly to a parent for the education of that child. Period. It’s not any kind of program to do anything else other than provide education for a child that the person chooses. We’ve been winning cases based on the court’s recognition of what school choice really is and how it really works. Decisions in Indiana, Oklahoma and Nevada, in particular, have been very strong. That’s the good news.

I should also mention though, at the U.S. Supreme Court level, we have what we believe to be good news out of the Trinity Lutheran decision where the court decided that, in any public benefit program, you can’t discriminate against an institution just because it’s religious. That would be a first amendment violation. How that ruling will apply to school choice cases remains to be seen. It will work its way through the courts in the states, possibly again before the U.S. Supreme Court, and then we’ll know more definitively what that will mean for us.

Now then, on the more challenging aspect of school choice litigation: Currently, the Douglas County Colorado voucher case is back in the courts. The good news as a result of the Trinity Lutheran case at the U.S. Supreme Court level is that the very day after the U.S. Supreme Court had their big ruling in Trinity Lutheran, the court accepted the Douglas County voucher case for consideration and immediately vacated the adverse ruling of the Colorado Supreme Court. That was very positive. Now, that court is reconsidering its ruling against vouchers in Douglas County, Colorado.

Here’s the trick. The tricky part to this is that, just recently just in the last few weeks, the school board elections in Douglas County, Colorado caused four anti-voucher candidates to be elected to that board. It’s a seven-member board so they will hold the majority. They won’t be sworn in until the election results are certified by the Secretary of State in Colorado, but the deadline for that is coming up here and we accept that there will be a school board meeting soon where they will most likely terminate the voucher program. This will lead to an additional round of litigation. If for no other reason, to keep this going so that the issue of vouchers in Colorado can be decided by their state court.

Jennifer Wagner: So, there’s still a chance though that other counties in Colorado could potentially have voucher programs, but it’s unlikely that Douglas County is going to continue theirs.

Leslie Hiner: That’s correct. At this point, the ruling that is now current and valid in the state of Colorado is the appellate court ruling, and we won that case, very happy to say. There’s another little bright spot. It’s also interesting to note that since Douglas County has been so much in the press, other school boards in Colorado have begun to ask questions about whether they could enact their own voucher program. Even greater interest from that has come from parents. Parents in Colorado who are asking, “Why can’t we have an opportunity to decide where our children go to school?”

Now there’s a point in all this that I think should not be missed. As we’re talking about all the legal issues and movements and motions, we’ll get very technical very quickly, but we shouldn’t forget why the Douglas County school board—in 2011, this has been six years of litigation—in 2011, why did a suburban school district just south of Denver, affluent, high-performing schools, very innovative school district, why did they enact a voucher program? Very simply, the school board at that time stated that they believe that they had a responsibility to all the children who lived within the district lines of Douglas County public school district. If they had a student who maybe needed to be in a smaller school, maybe needed to be in a different environment, maybe needed a very particular type of learning opportunity.

If they had that student in their school district, then they shouldn’t just say, “Well, sorry about your luck. You still have to go to our school even though we might not be the right fit for you.” They thought that would be, in fact, irresponsible. That their role was very specific to make sure that every child within that public school district was getting the education they needed even if they need to get it at a different school.

Jennifer Wagner: That’s a remarkably progressive stance and locally led. We’ll obviously be keeping our eye on Douglas County, and you’ll be keeping busy I’m sure working with other folks on keeping track of all those motions. What other cases besides Douglas County should people be keeping an eye on as we go into these next few months?

Leslie Hiner: There are a couple cases. There’s one coming up out of the state of Montana involving their tax-credit scholarship program that’s currently sitting before their state Supreme Court. Don’t expect action on that until after the first of the year, but look for that. Secondly, there is a major case, the Janus v. AFSCME case at the U.S. Supreme Court currently. We will be doing an amicus brief in that case. That case involves teacher union dues. For those teachers who decide that they do not want to be members of the union, do they still nonetheless have to pay fees to the union? Another question has arisen in this case, which is: If a teacher joins the teacher’s union, is that ever strictly voluntary or is the mere political presence and force of the teacher’s union so great that teachers feel compelled to join? That would be a violation of their first amendment rights.

Now, for us, this is of interest to EdChoice because we’re always eager to get input from teachers on school choice programs and great designs for school choice programs. However, often times teachers who are supportive of school choice feel that they really can’t speak up. They can speak privately, but not publicly for fear of retribution from the teacher’s union. That is a legitimate concern on their part. Anyone who has ever spent any time at a statehouse during the legislative session knows that when it comes to deciding issues of education, specifically issues regarding money—how much money do the teachers get, their benefits, how much money is spent on schools, extra programs, et cetera.—all of that is dominated by the teacher’s union. For a teacher who might disagree with the union to speak up, that teacher really risks a lot.

Jennifer Wagner: Really?

Leslie Hiner: A job, a salary, just a happy working condition. This case currently before the U.S. Supreme Court will address those concerns and we expect the U.S. Supreme Court to say that the additional fees that are required by teachers to pay to the unions, I would think now would be the time that the Supreme Court might say no you don’t have to pay those additional, but some are speculating that the U.S. Supreme Court may go further than that, may opine that, in certain circumstances, the union simply should not have a presence because their process is too overwhelming. It’s too much political influence and again, that it violates the rights of teachers under the first amendment to the Constitution. Everyone’s watching this case.

Jennifer Wagner: Yeah, I mean outside of the education sector as well. It’s interesting bringing up the reticence of teachers to speak up. My parents were teachers and always complained growing up about the outside influence that the union had and the dues they had to pay when they didn’t really have that much money to put toward those dues. We have that problem on our side where we have teachers who reach out to us, educators who reach out, and want to share their story of support for school choice, and they feel like they can’t put their name it. Again, all eyes on Janice.

You mentioned that we would be filing an amicus brief in that case, which brings me to a question about what is EdChoice’s role going to be in the future in terms of the support that you’re offering and that we’re offering in some of these cases at the state level and also nationally?

Leslie Hiner: Thanks for asking that question, Jen, because our role has become bigger. It’s growing as there’s more litigation. As the litigation is getting more complex, as the litigation is going into issues of funding, adequacy funding in particular, where we have an area of expertise with our fiscal analysis, we’re certainly well suited to get involved in that level of litigation. Yes. We will get involved in litigation by filing amicus briefs but also by helping to advise lead councils in cases on strategy and also background information about school choice.

In addition to that, there’s a very important function that just needs to happen right now. I think we’re uniquely positioned to be able to offer the educational aspect of the law. The law can be very complicated for people who are not lawyers. Frankly, be very complicated for those of us who aren’t lawyers.

Jennifer Wagner: I know.

Leslie Hiner: It can be very complex. It’s very important that parents in particular understand what’s happening both to their legal rights, the legal rights of the schools where they send their children, the legal rights of school where they want to send their children to school. Having that understanding of the legal side of the school choice equation, I believe, will be another way of empowering parents to understand what’s possible and how they should speak to the issue, both to their elected representatives, to teachers, to school administrators and most importantly, to each other as they’re advocating for their own children.

Jennifer Wagner: Yeah. Often times, parents have no idea what their rights even are. I’m always surprised by how few people even understand the issue of educational choice. Even though we’ve come to expect choice in every other aspect of our lives, people still are largely stuck in that ZIP Code-assigned mentality.

Last question on families as we head into the holiday season and to the New Year. Do you think families should be optimistic, hopeful about what’s happening, both from the legal perspective and then just generally in terms of access and empowerment when it comes to school choice?

Leslie Hiner: Families should be very optimistic about the future. As I said earlier, the courts at the state court level are really understanding that the nature of school choice is about providing funding to the parent for the child. That is very significant. It’s also significant that in a couple of these court cases, the court referenced other court’s decisions in a very positive way so I would certainly expect this trend to continue. But not only that…as we’re getting some really great decisions from the court and very, very well written decisions from the courts as well, legislators are reading those decisions. It’s also helping legislators to come to a full understanding of both the legality of school choice and the importance of it to parents. I think that we can expect that school choice will continue to grow exponentially as it has over these last several years.

There are people like me at EdChoice and other lawyers who are great friends to us. We will continue to fight this battle in the courts, to educate people about their legal rights, and if nothing else, that’s a positive development that so many of us now are paying attention to this and trying to help parents in every way that we possibly can help them.

Jennifer Wagner: Well, it’s certainly a fight worth having and all of the families in every state where they have a school choice program and those where they don’t yet should be grateful for you, Leslie, and all of the opportunities that we are going to have to continue that fight. Thank you for joining us today. We have a lot to look forward to. On behalf of EdChoice, thank you for tuning in and have a great holiday season.