Season 6, Episode 5
A discussion of the Supreme Court and the education freedom case making news today.
Topics: parental rights; vouchers/tax-credit
Transcript
Auto-generated transcript with light cleanup. Words may be imperfect; policy names and guest names reviewed where noted.
We are live and we will send these the live stream around and get people will get started once there's more people on the stream, but I'm really excited about today. Nicole, last time I saw you was in Florida, right? That's right. We're on the same panel.
That's right. Talking school joy stuff. Yeah. In Fort Lauderdale and Matthew, you're at that conference too.
Yeah, yeah. In fact, I saw Nicole, I saw while you were, yeah, that panel where you were both on it, talking about. And I think you had a couple other folks up there, right?
You had Michael Petrilli and Robert Enloy. I think we're on that same panel. Yep. And Pat Wolf was moderating.
Yeah. And so Matt, Matt Nielsen texted me a few weeks ago and was like, hey, did you see this case coming out of Oklahoma, religious charter schools. There are some people that are for and against it who I thought were on my team, but maybe aren't. So I said, we have the perfect person who we can contact to talk about the case coming out of Oklahoma.
And Matt, do we have enough people to kind of get going? Yeah. Let's go for it. Okay.
Cool. And, um, Well, one second. Let me, let me actually pull up the, the video like I had last time so that I can. Quote, we some things as we're going through this, but.
Yeah. So I'd like to introduce everybody to our guests today. This is the educational freedom is to podcast. The host, as usual, it's me, Corey D'Angelsen, my buddy, Matt Nielsen, he's the co founder of the Educational Freedom Institute.
And this is the Educational Freedom Institute podcast. We also have on the show. I'm very excited about this topic and also this guest today because there's actually something that popped up today. We're going to mention as well at the beginning of the show, but Nicole Garnett, she's the professor at Notre Dame School of Law.
And she's an expert in all things. Law related to education freedom, especially when it comes to religious matters. And we were originally inviting her on to the show to talk about the case out of Oklahoma, involving religious charter schools, which for a long time. I don't think we really had religious charter schools.
Oklahoma tried to make it happen. And now we've gone all the way up to the Supreme Court, believe they're hearing it this month. But right before today, I think, well, this morning, I realized that there's this other court case before the Supreme Court today at a Maryland. And Nicole is going to talk a little bit about that at a high level as well.
So everybody welcome Nicole Garnett. Nicole, thanks so much for joining us on the Educational Freedom Institute podcast. Oh, thanks so much for having me. Excited to be here.
Yeah, it's it's good to see you on on zoom or stream yard. Hopefully I'll see it again. If you go to that conference, I believe it's going to be in Rome next year. So yeah, that's what I think that'll be a great time.
We'll have to make our way to that one. So tell us a little bit about this case out of Maryland today. I believe it has something to do with parents. Disagreting with the books and the public schools.
So this case is called Mahmoud versus Taylor. And it is a case about frontal rights in the Montgomery County Maryland public schools. So the plaintiffs are a diverse religiously diverse group of parents who have kids in the Montgomery County public schools who objected to a series of Pride storybooks that were taught beginning very, very young or mandatory reading in the in the Montgomery public schools. Originally, the schools were allowing parents to have religious opt-outs if they have objected to the storybooks, but then they said no, they're too important.
So no more opt-outs. You can't your kids must be exposed to this. So we want this part of our Christmas. You have to read the books and listen to the books.
If you're not old enough to read. You know, I haven't followed the case in great detail. And as a lawyer, I have to just full disclosure. I listened to about 10 minutes of the argument today because I was running around teaching and doing everything else.
I understand it was a very hot batch. So the Becca Fund for Legislative Challenge, the this this policy that said parents not only could not opt their kids out of these. This sort of LGBT curriculum, but they weren't even being told that it was the books are being taught. They they had a whole bunch of claims in the case.
But the spring court only agreed to hear one's lower court, the four circuit court appeals help that the parents did not it wasn't a burden on your religion to not have a religious opt out in a public school. Because there's sort of a series of reasons. One is the kids really weren't being forced to believe it. They were just being exposed to it.
One is, well, your your opt out is you can leave you go to public school or you can go to private school. Maryland, as you know, currently has it has a very modest means tested voucher. So it's probably an option for most of these parents to just walk. So the goes to the spring court, the Supreme Court has agreed to hear one question and one question only and that is the question of whether you can assert that a public school policy or the failure to allow you to opt out of a curriculum that you find religiously objectionable, whether that is ever a religious burden.
Not whether it was here just ever a religious burden. And because the four circuit court appeals said it wasn't the so that the rest of the claims in the case, there were many like this was a violation of parental rights. These cases, those are not before the fourth. There's just this one question about whether it was a religious burden or not.
As far as what I understand from talking about the argument and also just reading the commentary, there was there were a lot of questions that were asked was a hot bench. I think that although the facts of the case seem pretty outrageous to me, and I think that not being able to opt your children out is some religious burden. It really is a challenge for the courts to get their head around the problem because here, they asked, well, you know, what if it was man or will it just destroy the public schools if everybody's opting out of different things and it's chaos in the public schools, not something that Montgomery County ever was arguing until today, that it would be chaos. You know, that it could be in this case, it's clear that these objections are religious, but what if the religious objections are a little bit more, I don't know, I don't want my kid learning evolution, I don't want my kid learning math, I don't want my kid, I don't know, learning English.
So that would be pretty extreme. So there's sort of a lot of those kinds of questions, there was a lot of questions in the case about what is a burden on your religion. Is it a burden to just be exposed just a sort of my own right out of the box today said what if it the book was just in the library that the burden on your religion. And you know, so that on that on that, that sort of the, you know, this is just going to be a Pandora's box.
It's kind of the public school to celebrate if we start laying people opt out. So what happens argument is, well, you're letting people opt out all the time, we have IPs, we have, there are religious objections permitted to say sex at curriculum. So because you're allowing people to opt out for non religious reasons, you can't then say, it's sort of like the argument Oklahoma, the only kind of reason that doesn't count as if it's a religious reason. So that's the case is, I think it's a really important case.
And I think it's tricky. I suspect the parents will win that would be my guess, but will be very narrow sort of the court will say, yeah, the court was wrong below to say it could never be a burden on religion. We're not going to say whether it was a burden on religion, we're not whether we're going to say whether we would apply if it were a burden on religion, it just can be a burden on religion, and we'll let the law record sort the rest of it out. That would be kind of my guess.
Do you think it'll be a six three decision on this case. And it seems like it's not a very sweeping type of ruling, right? So if the parents win here. Nothing really changes in Maryland and those parents still connect.
They get thrown back into lower courts and they have to fight about it. They may be the Maryland settlers. So I don't think I don't see this is not they didn't it's a very narrow. I mean, I've all the questions that were in the case you just took this one narrow question.
You know, from what I understand, I would have thought maybe it was seven going to be seven to but from what I've seen about the argument that there were a lot of sort of push back a lot of heated exchanges even about sort of how do you define a burden. So yeah, you have an objection. You don't like it. Is that a burden?
It's just being around something you object to being a burden and then how do you weigh that against the school's interest, which is not in substantial. I mean, the reason I'm a parental choice advocate is I believe that no, there is no such thing as one size fits all education. Public schools have to do one size fits all education and so they say reasonably I think well, okay, we'll let we let these kids out like are you asking us to customize the curriculum for everybody. I think, you know, if you think about this, we just take a step back from a legend is think about some of the school's speech cases.
You will see how it might work out. So students have free speech rights in public schools, but they're pretty limited, right. So you can't object to I don't want to really read that. I don't like who's the history of the book, the Zen book, the APS.
Howard's in, yeah. Yeah, I don't like Howard's in. I love America. So don't make me read that book because it violates my free speech to read that book or talk about that.
In those cases like they, the courts never really have they've started to define exactly what students and faculty members free speech rights are in public schools. So my senses they'll have some kind of a similar compromise will there announce that there are religious rights in public schools. But without fully defining what they are and they'll end up being pretty thin. Dude, what do you, do you think anyone was really surprised that the fourth circuit decided what they did, Nicole?
So I was a little surprised that they said there is just isn't a burn. Right. I mean, I think they could have said I wasn't surprised that the parents lost. I always expected the parents to lose.
The religious liberty claim here really hinges on because you don't have a, it can't just have an objection to a book. I don't like on religious grounds. I mean, it really hinges on the fact that they're giving exemptions for non religious reasons. The facts are outrageous.
This particular, I mean, they teach their teaching kindergarteners against the parents, the parents are Muslim Jewish Protestant Catholic. They're teaching them that the doctor three year olds that doctors guess what the baby sex is when they're below. Which some Muslim parents have some objections to. You know, the facts here.
The status rule for religion that comes out of the COVID era cases where they were allowing polling allies to be 75% full, but requiring churches to only be 25% full. And the court is, look, if you're going to give an exemption, you have to cheat, treat religion at least as favorably as like, you know, secular activity. So I think, you know, what Beckett's arguing here is you're giving opt outs for, you know, IPs. And so you have to give the opt out, you know, you're, you have to treat religion at least as well as what the federal requires for disabled kids or giving opt outs.
Parents, non religious objections to sex ed, but you're not allowing parents to have religious objections to the bright story books. It doesn't satisfy the sort of most favorite nation rule rule. That rule really reflects this same idea as when we get to Oklahoma that the Constitution requires the government to be neutral toward religion. And if you're favoring secular over religious objections, that's not neutral.
So if we win with this case today, and it goes back to a lower court, could the lower, what do you think the remedy would be? What could is the only remedy that the school says we're not going to teach this anymore, or we allow opt outs, or could they also have a remedy of, well, we've told you that you can go somewhere else. Kind of like what we do with that. But that's not going to be the remedy.
Come on, Nicole. Tell me. No, that's Bill Bamberger. It's great.
Lost law, religion, administrative loss. The public schools are in constitutional. I think that the, the remedy is. Yeah, it's the hit hamburger.
The interesting thing is they were, they were allowing the kids to opt out until not that long ago, which does someone undermine their argument that this was chaos. I mean, I heard early in the argument that in some of the schools, there were a couple dozen kids opting out and they said this was just now they've decided that was too many. But you know, the interesting thing in the argument, the part that I was able to catch the very beginning, they said, the average family and county public school is 750 kids. So it's really not that many kids that were opting out, you know, there, I think there was political pressure as there often is in the situations to stop the opt outs.
We allow constitutionally, we allow, for example, there's a case that says that Jehovah's Witnesses don't have to participate in. They can leave rather than. Legion, sorry. Legion.
Yeah. So, yeah, I would say opting out, I think, would be in this narrow context. The question, but then, you know, the court is right. Probably some of the witnesses were right to say, well, what about the next case?
Because the next case isn't going to be about Pride story books with 12 kids, maybe it's something more important. Race discrimination, it's math, it's science. And more kids in certain situations. So, you know, are we inviting another question that always comes up in, you know, are we opening up the floodgates to litigation.
Everybody starts suing every public school. This is why we need school choice so that parents can. Yeah. Because yeah, at the end of the day that you can make a lot of different arguments about things that you disagree with on religious grounds, right?
Like just the public school not having religion, couldn't you make that argument that you're just, you're, you're compelling my kids to go to school under compulsory education laws. You're forcing me to pay for this one size fits all system and it can't be religious. So, and there's no such thing as a religiously neutral school or a values neutral school, at least. Right.
I mean, I think there is no such thing as a neutral education. I mean, Ashley Berder makes this argument, whatever we choose back to how it's in. I mean, when I teach education law, I put up five AP US history books in the speech day. And I say, which book would you pick?
I mean, occasionally I'll say, I have a teacher who's actually taught APO's history. And he said, oh, I picked that book because I had a lot of immigrants. And I thought that was the best book because it was like your toward it was it was it was like it was a good one for immigrants. I'm like, well, that's not a values neutral education.
I'm not saying it's a bad value, it's just you made a value judgment. Yeah, legally, again, although there are people have made the argument that, you know, the having secular schools is itself a violation of the establishment. There's something it's established, not religion, those arguments aren't going to do with arguments. Yeah.
But I think the reality that there is no such thing as the values neutral education is the reason why we have to have choices. There's a book that I really famous book called Exit Voice in Loyalty by A.O. Hirschman. And he talks about different ways about companies, not schools, but different ways that people influence their companies and was exit, you leave voice, you yell and loyalty, you stay and try to change it.
And I think in our American education system, we need all of those things. That's why we need choice of people sometimes can exit and find their own perfect education for their kids. That's what we see is happening in places with parallel choice in education at the conference. We were both that choreo talking to Tut Hill from step up for students about what's going on in Florida with a big ESA.
And he was saying, oh, yeah, you know, like people are leaving the public schools because they're mad around the Santa's and starting DEI learning pods. And like micro schools for LGBT kids. And that's, that's good. Yeah, we disagree.
That's fine. Yeah, just don't force my kid into your ideology. I won't force mine on yours. Yeah, so, right.
So it's an interesting case to watch. Yeah, one last question on this and then maybe we can move on. But the compulsion is the issue, right?
Because if you have, if states are required to provide a free and appropriate public education, fake, right? But that's the idea requirement. That's only applies to children who need especially just to clarify. That's the federal requirement.
I thought that every every student is required. So every student is only an idea. Every state constitution requires the states to to provide. To establish a system of public schools.
The scope of that obligation and what courts have and how they've interpreted it varies from state to state. But the free and appropriate public education requirement is from the individuals and disabilities education act. Okay. Yeah.
Sometimes they say adequate. Sometimes it's, you know, we adequate it. Some say it's high quality. Some say efficient.
Yeah. Let's just say a system. Okay. So, so the terminology, faith is specific to IDEA.
But the concept that every child is going to be given a publicly funded education. It that's universal. Is that fair to say?
So yeah, every state requires this. It's a system of public schools. I mean, it's it's interesting. I'm writing a paper about this about parental rights and.
And these state education mandates. Most of them were adopted around the time that blame amendments were adopted and some of them were adopted. In the post of war period states were required to establish public schools and institutionalize them. So tell, tell us about the boy, if you act your question, I want her to tell the listeners about the blame amendments and how those came about to.
Okay. Okay. Yeah. So my question related to this is.
If you're going to require that every student that, sorry, that every state. So every state has to provide some system of public education. And then you also compel them to attend a school. But you don't provide any choice outside of the district schools.
Then this is where it seems like you said earlier, you feel like the parents in the case that's being heard today. Have a pretty good shot at a win a six three decision. This is probably why, right?
I mean, if they had universal school choice and every every every child got backpack funding and wherever they go, they get money, then there's not really an issue here. The, the issue is you've only, you only have this one road to travel in order to get, you know, from, from home to school that you only have one choice. There's one road to get there. But if you had universal school choice, there's not much of an argument there.
Do you agree with that? You know, calling about this. Yeah, so that, so the compulsory school education combined with the rule that you don't have any religious liberty rights in public schools would, it would not be a good system, right?
I think one of the reason that we want parents and students to have religious liberty rights in public schools, even if limited is because that's their compelts to go to school. Now, obviously in the course of it seem to say, well, yeah, but you don't have to go to public school. You can, you know, I do think the case, the case that your religious liberty rights are infringed by things that you object to in public schools is weaker if you have true opt-out rights. So if you're in Texas as of next week or something, $10,000 a kid or in Florida or Indiana, you know, we have virtually universal vouchers and in Florida, universally essays.
Now, I don't think as a matter of federal constitutional law, the court would go down that road just because you wouldn't want the shape of what a right to depend on state policy differences. That's just not the way the spring court thinks about these things. So, but I do think it does highlight if you say, you really can't leave because you can't afford to leave or it's going to cost you $25,000 to go to private school in Maryland or to homeschool. And that at the beginning of the argument, the Beckett fund lawyer said that my family had to spend $25,000 to homeschool their child.
Another had to move in with grandma in order so they could afford private school for their children. That is one of the reasons why I think it would be unjust to say that parents have no religious liberty rights at all in public schools. And though, we have to recognize that they're going to be limited by definition because the schools, it's, it really can't be cafeteria curriculum. I mean, more, more, more, I guess it could be more like that, but it's still, you know, you have to pick a book.
Yeah, US history book and it might be offensive to somebody. So do you let them leave for the 10 minutes that they're offended and they come back in and how does that disrupt it? I always tell my students in education law, I love teaching former teachers, you know, and every classroom is a courtroom. You know, it's just, there are so many decisions that my son Tommy was just graduated.
He's a college school teacher in Detroit, like, you know, you make a million decisions that somebody might not like in a day. Yeah, right, right. Okay, so tell us the history of the blame amendments because we deal with those in a lot of states when trying to pass full choice programs. So just to start at the end of the story is the good news is they're not enforceable in most states anymore because the Supreme Court has said that the states can't single out religious institutions from his favor for his favor, even if the state constitution requires it.
So blame amendments are state anti-establishment provisions that specifically address education. They arose in the 19th century in response to into Catholicism and specifically the Catholic's objection to what was a pervasively Protestant ethos in the public schools and decisions after seeking again accommodations. It's really interesting like the same is the case we'll talk about in a minute Catholic school, but also my mood is it's not a new issue like the Catholics before they started their own schools in the 19th century. The first thing they did was asked to be exempted from curricular practices that they objected to on religious grounds, and specifically the recitation typically the King James Bible.
They would ask to be able to recite from the doing runs Bible to Catholic Bible, and they were always told no. Sometimes they would ask to just not have to recite from the Bible court said things like that is just absurd, absurd plan. So we're talking in the in 2025 about the same problem that was being litigated in 1855 in Pennsylvania. And no Catholics eventually say forget it.
If you're not going to accommodate us, we're leaving. We're going to build our own school system and they argued on quality grounds that they should get money for their schools, because they said, well, your schools are Protestant. And this problem school is the common schools as they were the known are Protestant. We're going to educate kids and our schools will be Catholic.
So, you know, it's all as fair give us some money. And as early as 1842, the first archbishop of New York city was demanding public funding for Catholic schools on a quality grounds. This name was John Hughes. He's one of my heroes.
They called him dagger John. He was a very he liked it. He was a firebrand of a guy. But anyway, he lost and there was backlash.
The twin. So the backlash was to a concern that the Catholics were seeking to infiltrate the public schools by demanding accommodations. And then there was set up their shadow school system. Very a lot of 80 Catholicism.
So the backlash against the demands for public funding were states adopting provisions in their own constitutions, banning the funding of sectarian education. So the possible were period of a man named James Blaine. That's why they're polluting them. It's attempted to amend the federal constitution to prohibit public funding of sectarian schools.
This fell just a few votes short of passing in Congress. And after that Congress required states to adopt a put them there called baby blame baby blame amendments in their state constitutions. And you're right. These have haunted the school choice movement forever.
Because the argument even after we win in solvent in 2002, the court says it's okay to have parental choice. It doesn't violate federal constitution. Everybody said, well, they're the state blame amendments. They prohibit it.
And it's really not until you know, the last five years or so or the Supreme Court has said pretty clearly. Look, it's we have this saying all the supremacy clause in the constitution, which means the federal constitution trumps the state law. And so if your constitution requires religious discrimination, those provisions just are enforceable. So state legislatures do not know that.
A lot of times they'll still say that we have a blame amendment. I've testified in state legislation. I'm like. I know you have a blame amendment, but it doesn't matter.
It's not enforceable, but we have a blame amendment. What about our blame amendment? Sometimes. Every word.
It seems to think there's a still enforceable, although they insist it's not a blame amendment. So I think it's there's, you know, we we have a lot of educating to do in in education policy. Yeah, we still thinking. So this is why we lost in South Carolina, right?
Or was this not a blame? Yeah, so that so this really is in the weeds, but there are a very few. Blaneman that's that are that prohibit the funding of any private school. If you're not.
They don't treat religion differently than not religion, they are not subject to the non discrimination requirement. But back at the time, when the blame amendment was created, it. Private basically meant Catholic school, right?
And you could. Yeah, and they all say. Usually it says private or sectarian private. I think there's an argument to be made that they they're doing the same work.
It's just that since the free exercise rule is do not discriminate against religious schools. If you're saying no private schools, it's harder to make a federal institutional claim. I mean, the South Carolina blame amendment. There was that case complicated because it was re ratified in in the in the 1970s.
But the original blame amendment was it had it was racist and anti-Catholic because. One of the reasons they adopted in the post reconstruction constitution, the segregation constitution. It was because really just missionaries were coming from the north and educating freed slaves. And they didn't like that because they had a literacy test for voting.
So they thought they could use their blame amendment to keep black people from voting. And get rid of the missionaries. The history is pretty clear on that. It's just that.
It's a it's a complicated historical story because state constitutions get re amended and it was changed in the 70s. So, arguably that history is no longer relevant. I think it is, but. Thankfully in South South Carolina, the chief justice was the primary dissent.
Are they going to be able to fix it? Well, they're passing. They pass another program. I think they're about to.
And so. We have a new court. And I think we might be able to flip it one vote the other way and might win this time. So, so would you say that's why we have so many Catholic schools today is because of this history.
That's what the percentages, but it seems like half of the private schools are Catholic schools. Well, unfortunately declining, but. Yeah, for sure. I mean, so that so in the in the 1850s in the series of bishops, councils, the church basically made a decision that.
That every parish should have a school. It's actually not like that in other countries. So most of our cake eight schools are broke ill schools. So they they're run by a church.
So I signed I have four kids only one left at home, but he's in, you know, same. They've gone all gone to the same Catholic school that was founded. By the same guy founded Notre Dame actually in the 1850s. And so they it's run by the church.
And so we have basically us until the post Vatican Council, a school at every church. And that is a pretty big footprint. And it was a reaction to this idea that the public school system originally the public school system was not serving our children well. But I think that later on it becomes more than that.
It's sort of a. The Catholicism teaches that, you know, that parents have a duty to educate their children in the faith and that the capital. Word, the best mechanism by which to do that now that. It's changed.
The doctor has changed the interpretation of that role has changed and we've had a lot of school closures, but one of the reasons I think so many Catholic schools have put in the. In particular, one is obviously no vouchers, but another is there were just too many of them. You might have like five in one square mile. I mean, because there would be Polish school, the Irish school, the Italian school, the Hungarians school.
There are various types of school. Some of them are ethnic parishes. Okay, so we've gone over half an hour. So we better transition.
We can talk about this stuff all day to the. The real reason we brought you on Nicole to talk about something that you wrote about in the Wall Street Journal. Actually, I recommend everybody go check it out in a piece with the headline of religious schools are okay in Oklahoma. So Oklahoma, what's going on there?
Why are we why is this being taken to the Supreme Court? I think it has something to do with religious charter schools, so take it away. So it's a long story. I'll try to tell the beginning middle and the end in a very short fashion, but most of the listeners will know that.
Yeah, what charter schools are, which is unusual because of those people don't. But 46 states have a charter school law. These, you might think of them as sort of like a request for proposals so that the idea of charter schools, which interestingly, you probably know this, but the first charter school law and the first modern voucher law were enacted within six months of each other in neighboring states in 1990 and 1991 in 1991. Minnesota, the first charter school law and the church is basically our, they're called public schools and that's the cracks of the argument in the Supreme Court.
But they say the program say we want diversity. We want more educational opportunity. So we invite in most states nonprofits and a few states for profit entities to make proposals to operate diverse schools. And you get to set your curriculum.
You get to pick your priorities, your themes. You might haven't, you know, in Oklahoma, for example, there are art schools, there are my story schools, charter schools, there are STEM charter schools. There's even a Comanche charter school, which is odd because Comanche aren't really one of the tribes that wanted to dance with Oklahoma, but Muslims and the Choctaws, but he was like Comanche. So there's a Native American school and the idea is like, we are going to free you from, we're going to be privately operated.
You're not controlled like public schools by the government. And we're going to free you from these regulations in order to foster pluralism and educational diversity and opportunity. But all 46 states with charter school laws prohibit one kind of pluralism and that is religious plural. So most states require, all states require charter schools to be quote unquote non sectarian schools and most states prohibit them from even being affiliated with the religious organization.
Oklahoma has both of those, both of those restrictions. In a series of recent cases, combating in this case called Carson versus making in 2022, the Supreme Court just lay down the set out of a clear standard and it's something like this in the education context. A state need not subsidize private education, but once it chooses to do so, it may not refuse to subsidize religious education. That rule extends beyond education.
It applies to every time the government enters into establishes a program that enlists the public, the private entities to advance public goals, like education, healthcare, social services, you know, poverty alleviation, the rule says, if you're going to do that, you don't have to do it. But once you subsidize a private entity, you can't discriminate against religious organizations and you can't refuse to fund religious conduct. That's the rule. Okay, so that's the now is from the Montana case with the.
That's the Montana case was called Espinoza versus Montana, Supreme Court invalidates a modest tax credit scholarship program because the program Supreme Court in Montana, because the program included religious schools, the Supreme Court says, that's religious discrimination can't do it. You don't have to have a program, but if you have a program, you can't say we're going to not have that you're not going to discriminate against religious schools. Interestingly, in Espinoza versus Montana, Justice Breyer asks, he's in his dissent, what about charter schools?
Now, if you know what a charter school is, I would commend his dissent you because he had no idea what they were. It was sort of a word salad, but it was like, what about charter schools? And obviously this is the next question. The first school public or private, it's called public, but it's not like the sum of schools that I went to serve urban, he and the city and the blue valley unified school district, because the schools aren't governmental.
They're not run by the government and they are privately operated. There's a contract with the state. They have to be tuition free, they get public funds and they're called public. So that's the background.
The state is in order to be a Catholic virtual school is a joint project of the two Catholic dioceses in Oklahoma. Oklahoma is a large world state with many underserved communities and during COVID, when they had to go remote, this diocese started saying, wow, maybe we should keep doing this. We're not bad at it. And we could give the gift of Catholic education to kids who might live two or 300 miles from the closest bricks and mortar school, but how will we pay for this?
It just happened that I also happened to be writing about this at the same time. And so someone said, somebody Oklahoma wants to talk to you about your paper. This never happens if you're a law professor, by the way. No one reads anything that you write for the Manhattan Institute and now there's a Supreme Court case.
I was just founding a religious liberty clinic at the time. So I was able to talk to the good folks in Oklahoma and about this. So look, Oklahoma says you can't be religious. That might be a constitutional, might be religious discrimination.
We have this religious liberty clinic. This sounds like a cool project for the religious liberty clinic. We have this student driven organizations, which kids have to be lawyers in the clinics as we go clinics to maybe we'll have them write you a memo or something. So thanks unfolded in ways that we couldn't have expected.
So soon, soonish after we start talking to Oklahoma, the attorney general of Oklahoma, danatory general John O'Connor issued an opinion letter saying that the laws banning religious church schools violated the free exercise costs. So I'm going to add a door for St. Isador to apply for a charter. He was primary.
His predecessor changed his mind and revoked the letter. By that time the school had already applied the school, the charter school board of Oklahoma. Said in it. So this is a celebration.
This is a really great application. The only reason we wouldn't approve you is because you are religious. And we can't do that. So you get.
So the school has approved the new attorney general of Oklahoma. His name is Mr. Drummond getting her drum and shoes. This charter school board one really weird thing about this case at the spring court is it's really Oklahoma versus Oklahoma because the states on both sides of the case.
The board agrees that the school should be approved and the attorney general says it shouldn't. So there's the Oklahoma Supreme Court. Oklahoma Supreme Court agrees with Mr. Drummond.
Says, you know, this violates Oklahoma Constitution also violates the establishment clause because public. It's a state actor. It's not a private actor. So it orders the charter board to revoke the contract.
And the state files or petitions in. So lots of people surprised the court agreed to hear it. It will be arguments are next Wednesday, the last argument. So we're all starting tomorrow.
We from tomorrow. Okay. And so. So the Oklahoma charter school board at the state level rejected their.
No, they approved it. They approved it. And so what when did it. So the charter school board approved the application saying we are not going to enforce.
The provisions that require you to be secular because those provisions are unconstitutional. Then the attorney general sued the charter school board in Oklahoma Supreme Court. Oklahoma Supreme Court agrees with the attorney general and says to the charter school board what you did was a constitutionally legal under. And unconstitutional under the federal establishment clause and ordered the.
The charter school board to revoke the chart. So the so the contract has been revoked. And now in the Supreme Court, the Oklahoma charter school board is arguing that the free exercise clause requires Oklahoma to approve the school school is arguing that the free exercise clause requires the state to approve the charter. And the solicitor general of the United States.
Trump administration is arguing that say. So there'll be three people arguing on that side against. Not Mr. Drummond.
They hired a different lawyer, a former solicitor general. So it will be four arguments. It may take all day. I don't know.
I'm excited. So it's so the real case. The question in the case. And then we have to talk about sort of the policy implications and maybe some push back from the folks in the charter school world and even the federal choice world like us.
I mean, the real question everybody agrees in the case is whether a charter school in Oklahoma under these circumstances is a private actor or a government actor. Right. It's a private actor. It's protected by the free exercise cause.
And it can't be required to be secular. If it's a government actor, it's bound by the establishment clause. And it. Artilee must be secular.
So you can be something that's labeled public, but still non government. So the Supreme Court has made clear that state law labels don't control constitutional questions. And has also had held that the label public does not make you governmental. There was a case in the 70s about public utilities, where the argument was.
They're governmental because. Right point. That's. Contractors get.
And so the other things Supreme Court has made clear is just because you are regulated by the government doesn't turn you into the government. The government contractors. You know, Lockheed Martin is not the United States and probably it has one customer maybe to. And this the label public doesn't turn you into government.
What really the question comes down to how closely the. Cool is controlled by the state. And I don't think it's controlled very closely by the state. There are strengths that come with being a charter.
The charter can be revoked. You know, so. Yeah, but you can make that argument about. You can make the same kind of argument that the other side is trying to make about charter schools, you can play that private schools to private schools have certain.
Things, you know, laws that they have to adhere to doesn't mean that they're government. Right. I mean, it's some of the things that the attorney general in his new brief argues. Interestingly, so the before the the all up until this point, the argument has been okay, we recognize saying is the doors private, but because it's.
Involvement is the fight the argument has been is it so closely connected to the government that it's actions and. It's a private actor, but it's still down by the constitution. Very rare that that happens. Has it ever I've I'm not aware of any situation.
I've now I've freely admit I'm not aware of everything. So. But I'm not aware of one situation where an individual has sued a charter school for anything. And somehow made the state responsible for that.
For instance, like my name is responsible. They're really the questions whether the charter school is bound by the constitution. And there are instances about that. So, but in fair enough, but here here's my question.
Because the argument I assume that hopefully someone's making this argument, I'm sure they are much smarter people than me are arguing these cases, but. The when a state when a state government gives public tax payer dollars to a private entity, which charter schools are right in any case either they're nonprofit or for profit doesn't matter their individual organizations that are owned either by nonprofit by board or by individuals or corporation or a group. The argument I assume that they would be making and have made is that once those public dollars enter into a private organizations bank account, they're no longer public dollars their private dollars. Yeah, I mean the way the lawsuits would come up is so like to extracting from this case to another recent cases.
It was a case out of the North Carolina called Peltier versus charter day school was a classical school that required girls to wear skirts. Yes, yeah, that was what three, four, no, this was North Carolina is three, four years ago. So the school gets sued. The school says, we're not the government and we're not bound by it.
I would say it was an equal protection violation. It was sex discrimination and they say we're not a state actor like we're private actor. We're privately run private work. We're not bound by the equal protection clause and the four circuit said it was a state actor.
It wasn't really about like that holding the state itself responsible for the charter schools action. It was about whether the charter school was bound by the constitution. It was about the same thing here like St. Isador did that other one?
The last word everybody agreed that St. Isador was private. The only question was whether it was bound by the establishment clause. Now the attorney general has said actually it's the government.
Like a charter school is a government school. Straighted by the government. Well, the attorney general is just against school choice in general. Yeah, yeah, he was against the voucher program too.
He's an interesting guy. But yeah, so they say, well, I was created by the government. So it is the government. I just look, I know it's like rose color glasses, but that can't be true.
I mean, the archbishop. Right. The St. Isador has two members of its four.
I mean, like I think two principal voting members, the archbishop of Oklahoma City and the Bishop of Tulsa. They are Oklahoma. Like it can't be. Right.
Like these two Catholic bishops have become the state of Oklahoma. But so that's why you'll hear a lot of questions in the case about. You know, the fight interestingly a lot of folks in the public square. Are are talking a lot about like will this introduce like prayer in a public schools?
And my answer is this has nothing to do with that. Like this. The whole fight here is this a government school or is the private school. Yeah, I mean, anything to do with blue dot in more high school, the mustangs.
Yeah, we know what the government runs schools are. We're just now. We're trying to decide what this thing is. Load unquote public schools, but not government run.
So. Yeah. So that's whether this non discrimination role applies to this charter school is whether or not the charter schools public or private government. So if we went if we win here.
And I think we will. This only applies to Oklahoma. So then Oklahoma would be able to start opening a bunch of Catholic charter schools if they wanted it. Catholic charter schools would be able to.
Well, so religious schools of all kinds could apply. And that their applications would have to be treated equally with any circular schools application. Now that doesn't mean they have to approve it. I mean, if it's a bad.
So, you know, but they couldn't discriminate against it for being religious. Mr. Drummond, the attorney general of Oklahoma, he's constantly harping about. Oh, the next thing is Muslim schools.
Oh, okay. Good. Like. Right.
They're being. And they have a good application. You know, because you're. Islamic.
I mean, that would be. Yeah. So. So in Oklahoma.
The question isn't. Could they apply secular criteria? Of course, they could. They just couldn't say no.
I mean, what the charter school board said in this case is the only reason we would possibly say no. Is it because you're religious. And that's unconstitutional. Now outside of Oklahoma, the Supreme Court.
It acts and it's not. Talking in this case about anybody else's law and different charter school laws are set up differently. But of course, it can. It will say things that will.
And it will. And it will. And it will. Perhaps suggest that Florida needs to permit religious charter schools.
I don't know. I haven't studied every day. Yeah. But some states.
Because the charter schools. They're all basically. They can be. Yeah.
Yeah. Some states. So yeah, like Wisconsin has like. Government run charter schools and non-government run.
I believe. I believe. We're clearly. Yeah.
So. I think there's. So there's a couple of misconceptions about the case. One is.
This is going to open the door to religious religion and district public schools. That's just nonsense. And I'm going to do it this case. The second is.
It's going. There'll be thousands of charter schools overnight in 46 states. And that's also nonsense for all kinds of reasons. Because we want.
Only one state is up there. Two is. They still have to apply. And.
With more and more. States with federal choice. Most. Even though it's more money to be a charter school.
Most religious schools would probably think. I'll just do the USA. Right. I don't want to just that authorization hassle.
And unfortunately, because I am an advocate for charter schools. I mean, charter schools are really under fire and states are approving them in the numbers. They used to. Yeah.
So if they want to slow it down and. They have already. So I don't think this is not a floodgates question. Yeah.
So I have a question for you. Let. If you want to. If you're okay, Corey switching gears a little bit.
But we have. Friends. Yeah, we're real quick before we switch gears. Yeah.
So it. So like when we wanted Montana with the Espinoza decision, Maine did something else and we had to go to the Supreme Court again. Is this similar in that way where you know, we're probably going to win Oklahoma. And then.
What brings the next case. If it. If it. Religious charter school won an open Florida.
And then the teacher's unions are whoever sued to stop it. Then it would potentially go to the Supreme Court. And then we get to. I think it's a little different because unfortunately, Espinoza.
That was supposed to be clear for all. It wasn't clear though. Is it. Espinoza said they have the status.
This is about the screaming. This religious character status. We're not saying that it's. Okay.
It's discriminating to prevent money from going to religious education. But we're not saying that that might not be different. So. The.
Yeah. Maine said we're not discriminating based on you being a religious school. Just for doing religious things. Yeah.
Right. Right. Because that's such a big distinction for religious. Yeah.
Right. For Carson, close that loophole. I mean, depending on what the court says here, I mean, I think hopefully it will be whatever the rule is, it'll be clear. And then the states will have to apply it to their own laws.
It won't say that Florida has to authorize charter schools that are religious. Right. The state attorney general will have to make that determination. Now, and also, you know, I guess the, there could be other state constitutional provisions, not blame amendments that might work differently.
But do you just, the rule, whatever it is, assuming that, seeing as a risk, victorious, under circumstances like Oklahoma, states won't be able to prohibit religious charter schools. But we don't know what that is. I don't think it's exactly the same as Carson, because I can, I mean, they love to live open loopholes, but I, I can imagine, I just think that it's not quite the same. Because there they just intentionally said, we're waiting to decide this thing for another day.
Hmm. Okay. We, we've got, um, just about six minutes left. And I want to squeeze in my question about our, some of our friends, all of us have friends who are pro school choice, they love charter schools, and they're working day in and day out to grow charter schools across the country.
Unless they're religious. Unless they're religious charter schools. So, so that's the question. What, we've even seen some, um, what, what's the word for it?
It's a, Martin legal term, Nicole. And it's not amicus. It's, curi, I am, I am curious, yeah, friends of the court. Okay but there's, so I am already important to keep in mind that, is that the charter schools are divided.
Yeah. So of the chart of the briefs that the sanitary group and they'll come up. The charter school org that there were a group, a number of charter school groups that filed brief, saying, The National Alliance for Public Charter Schools follow a brief in the favor of the other side. That being the government.
We are government schools. Yeah, I don't know why you would want to be the government. I mean, so I think so their arguments, as I understand them, are they're not really legal. They're just sort of, I don't know.
If you do this, then bad things. It's more of a political, a more political argument. So charter schools are, if you do this, the New Jersey will just stop authorizing charter schools all together. Maybe they'll shut down all of us and then the millions of children will lie or suffer.
But I think I've heard that. So the problem with that, I have without argument, besides I think it's overblown is that. The fact that somebody might discriminate, some state might discriminate against religion or not like religion. There's some state officials have in tipathy to religion is the reason we prohibit religious discrimination.
It's not a reason to make it so that it's the law. So that's a part argument for me. There's another argument that, you know, folks. Yeah, that's like saying, you know, the Supreme Court says that schools can't discriminate based on race.
Well, then the schools won't serve anybody, so we shouldn't fight it at all, right? So that did happen. Yeah, so similar. Yeah, similar argument.
For Jenny, shout, it's public schools down. That was a reason not to have brown. I mean, that wouldn't have been a very good argument. I do think the last, I mean, one other thing I will say is, you know, there are, there are argue.
And there are people in the private school choice world. And that's really my world. I've been in the private school choice world, my whole career. In some of the 90s that say, look, these are some really bad mechanism for religious schools.
It's too much government involvement in them. There would be much better off and much freer. And a essay program or a voucher program. This is actually a threat to religious liberty.
Char school, religious schools should not go there. I mean, I associate this like so with Daryl Bradford, the front of mind, let's say this. Yeah, I think. And, you know, they could do both, right?
So both. And so that's again, not a legal argument. That's a credential argument. Yeah.
And there's no reason why religious organizations partner with the government all the time. And we allow them to do so, even though by doing so, sometimes they get. Some government level of government control, we wouldn't say, don't get public money for your soup kitchen, because you might get regulated. Yeah, religiously affiliated hospitals get.
Hospital. Yeah. That's right. We have to like.
The price of liberty. And we have to be vigilant and we have to make decisions. And the archdioceses and the dioceses and the dioceses. And also have decided that this is that they're they're going to have their economy and religious liberty respected.
And that's our decision. The last thing I would say, because I know we're out of time is just everybody here. Should remember as much as I'm a huge fan of the essays and vouchers is these are not magical regulatory invincibility shields. Regulations can come when you take public money.
They form a public money, not just our schools, but also private school choice. And regulation can come if you don't. That's right. Yeah.
Like we're seeing in Illinois where they're trying to come after the homeschoolers. Right. Going after the homeschoolers. And in Arizona right now.
Where we have them, where we have the essays, they're trying to regulate them. And there's a big hearing on Monday. We'll see how that goes with the ESA handbook change proposed changes. And like you said in Illinois, where they don't have a lot of school choice and they're regulating everybody.
The making homeschool parents register with their local school district and submit their school curriculum and the school district. And if you don't, 30 days in jail for you. Unbelievable. That's a great point.
You're, I mean, it. You're going to get regulated if the regulators want to regulate. And so depressive of. Of any sort of vigilance, right?
Yeah. Yeah. Okay. So I think we've, we've hit about an hour.
We have a lot of people watching. Is there anything else that we missed Nicole that you'd like to go over? You wish I should have asked you, but I didn't ask you. We get whenever.
Yeah. There's a lot of exciting time to be in a parental choice to human and everybody should pray for saying is a door. Yeah. If you're not like really choosing is a door.
There you go. And so you said you said this. You said this case is next Thursday. What's next Wednesday after that?
Next Wednesday. Next Wednesday. Okay. I expected.
They'll be a. I expect an opinion on the last day of opinions, which will probably be the first week of July. Okay. There are three religious liberty cases in a row at the court in April.
So like two months when mom moved and there was another one about Catholic charities in Wisconsin, which Wisconsin had said wasn't religious enough to be a religion. Which is a whole nother story. But so so there's it's going to be a lot of religious liberty cases at the end of the term. I'm tweeting it out that it's going next Wednesday.
So Corey gave his yes next Wednesday. And then we'll have like two months after that to where are we at the wait until we win after that. Okay. Okay.
Okay. Okay. Okay. Okay.
Okay. Okay. Okay. Okay.
Corey gave his prediction. We're going to ask you for years. No. We won't place any bets.
And we won't hold you to it, Nicole. But if you had to guess today, how does this one come down in the Supreme Court? So I can't believe the Supreme Court will rule that Archbishop of Oklahoma City is Oklahoma. It just doesn't work for me.
So, um, I think it'll be, it suggests that we're to yourself. So my guess is it will be five three. Five three. Okay.
Corey, you think that's five three. Yeah, I think she's right. Yeah. Yeah.
So we'll see. We can't better get to each other because we have the same numbers. But hopefully we're both right. And.
Yeah, I want to thank Nicole for for joining us. Maybe we'll talk again soon on the Educational Freedom Institute podcast. Maybe after we celebrate this victory and see where it goes. After the case next Wednesday, everybody should tune in.
I want to thank all the listeners for checking out this podcast. It's the Educational Freedom Institute podcast with Matt Nielsen and myself, Corey D'Angeles. So happy that Nicole joined us today. She's a professor at Notre Dame Law School.
And she's a big education freedom fighter. Um, very smart person. And, um, I feel lucky that she said yes to, to be on our podcast today. Thank you so much for having me.
Thanks, Nicole. Appreciate you. Have a good one. Bye bye.
Thank you for listening. You can find EFI online at efinstitute.org on Twitter at EF underscore Institute and on Facebook at Educational Freedom Institute.
