Lead Plaintiff David Carson & IJ Attorney Arif Panju on Landmark SCOTUS Decision Carson v. Makin

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This week on “The Learning Curve,” co-hosts Gerard Robinson and Cara Candal talk with Arif Panju, a managing attorney with the Institute for Justice and co-counsel in the U.S. Supreme Court school choice case, Carson v. Makin; and David Carson, the lead plaintiff. Panju shares the key legal contours of Carson v. Makin and the potential impact of the Court’s decision in favor of the plaintiffs. They delve into the origins of the Maine school tuitioning program, and the change in the early 1980s that resulted in discrimination against religious families. They also review the 2020 Supreme Court ruling, Espinoza v. Montana Department of Revenue, which was a major victory for the Institute for Justice and school choice. Carson reflects on what motivated his family to join this case and take such a courageous stand for school choice and religious liberty, and what it has been like being involved in such a high-profile U.S. Supreme Court case.

Stories of the Week: Cara and Gerard review the impact of the Pell Grant program, launched 50 years ago this week, in helping to expand access to higher education. What would high school look like if it were designed to give students job-based learning experiences and marketable skills upon graduation?


Arif Panju serves as a managing attorney with the Institute for Justice. He leads IJ’s Texas office and litigates cases involving free speech, property rights, economic liberty, and educational choice. Arif was co-counsel in the case of Carson v. Makin in the U.S. Supreme Court. Arif’s legal work has resulted in court victories in both federal and state courts. Arif’s work at IJ has been featured by media outlets, including The Wall Street Journal, New York Times, Washington Post, The Atlantic, Texas Tribune, and dozens more nationwide. His opinions and views on legal issues have been published in several outlets, including the Dallas Morning News, Austin American-Statesman, and USA Today. Arif graduated law school with honors from Southern Methodist University. During law school he clerked on the United States Senate Committee on the Judiciary.

David Carson and wife Amy are residents of Glenburn, Maine. The Carsons were the lead plaintiffs in the recent landmark U.S. Supreme Court decision in the school choice case, Carson v. Makin. David and Amy enrolled their daughter, Olivia, at Bangor Christian Schools, which serves kids from K-12 grades, for her entire school career. The Carsons received no tuition assistance from the Town of Glenburn because Bangor Christian Schools is a religious school, even though Glenburn pays tuition on behalf of its other residents who select non-religious private schools for their children.

The next episode will air on Weds., July 6th, with Dr. Joseph Ellis, Professor Emeritus of History at Mount Holyoke College and author of the Pulitzer Prize-winning book, Founding Brothers: the Revolutionary Generation.

Tweet of the Week:

News Links:

50 Years On, Pell Grants Have Transformed The Lives Of Millions Of Students


Blurring the lines between education and workforce


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Please excuse typos.

[00:00:00] Cara: Hello listeners so great to be back with my good friend, Gerard Robinson here on The Learning Curve after whew, Gerard, it has been a week as we always expect. June is a time when Supreme court decisions come down. I know I’ve been doing a lot of thinking this week. We’re gonna talk though about a case that I’d, like to talk about.

[00:00:46] and that is today we’re gonna be talking about Carson v. Makin. We have spoken with at least one of the attorneys who was arguing the case when the case was still in process. And we now have a decision. It’s a [00:01:00] decision in favor of kids. It’s a decision in favor of families, Gerard and I am very much looking forward to speaking with lead plaintiff and attorney for the case.

[00:01:09] But before we get there, how are you doing?

[00:01:13] GR: I’m doing well. I was in your neck of the woods, not too long ago. I was at a national conference that was sponsored by the national association of Latino elected and appointed officials. This was their first in-person meeting in a couple of years, and there were over 800 Latino elected officials from across the country in Chicago local.

[00:01:33] County municipal state and even federal. And so I was there to talk about criminal justice reform and education, particularly as it related to Latinos and what you know lawmakers can do. And I’m pleased to say that for the first time, at an opportunity to see vice president Kamala Harris speak she was the keynote speaker on one of the days.

[00:01:56] And so gave me an opportunity to meet her. And if anyone on her team is listening. I [00:02:00] actually have an autographed book for her that I wasn’t able to get, but it was a great conference. It was great to see what Latino lawmakers was doing. Choice was also a part of the conversation at one point, but I was in your neck of the woods raised a glass of wine for you.

[00:02:14] But as you know, I couldn’t get a hot dog or anything like that while I was there, but it was a good time. I’m

[00:02:19] Cara: gonna have the hot dog for you. Next time. I’m in Chicago. I have a very important question. Was the vice president wearing her signature converse shoes. When you saw her?

[00:02:29] GR: I was too far away to see, but I did video her walking toward the podium and I take probably half this speech.

[00:02:39] I will take a look and let you.

[00:02:41] Cara: Okay, please, please do. I have to say I have great respect for her on, so many levels, her intellect, her, career. But you know, a woman also notices and I have to say that this year, formal wear and Athletic shoes are trend. So she, really, I think was on the cutting edge of that Gerard, which is important, important to discuss here on the learning curve.

[00:02:58] I too was [00:03:00] conferencing a little bit last week. And as I think, you know, I was at the national association for public charter schools conference, always a good time. Now, shout out to Nina Reese and all of our friends. They always put on such a great conference. And I have to say as much as. The content is amazing.

[00:03:19] And of course the panel that I was on had to have been the best. I’m sure. I’m sure people certainly agree with that. Right. But one of the, just coolest things about that conference, especially coming off the past two years of the conference, having been remote is seeing people and seeing old friends and seeing friends who you’ve known, who, you know, what I’m talking about, people who have been doing this work for the past 20 years, especially around charter public schools.

[00:03:45] And that’s always something that is just, it’s such a great joy. and I really appreciate, so thank you to Nina and her wonderful team for bringing people together, which is such an important. Okay. Jared, we actually have business to get to, instead of talking about hot dogs and converse [00:04:00] and that is , we’ve got some stories of the week and I’m gonna start with mine.

[00:04:05] this is an interesting one. It’s called blurring the lines between education and workforce. It comes from the Hetch report it’s talking about programs that I think you and I probably have been thinking about for a while, but they’re not really dinner table conversation yet. And it focuses on.

[00:04:22] Jobs for the future. , you know, jobs for the future very well it’s an organization, a large organization that’s really focused on, aligning educational opportunities with workforce opportunities, doing some really cool stuff. And this article focuses on a conference they had and talking about programs or institutions.

[00:04:42] And I’m quoting here that serve students in grades 11 through 14, grades 13 and 14 being the first two years of college. And thinking about what those years. Look like, especially if you co-design sort of, college programming with regional employers and [00:05:00] job training, so that students get worked based learning experiences.

[00:05:04] Now a couple weeks ago, we had on Kristin Cola, good friend of pioneer Institute talking about Pioneer’s most recent book on VO tech, which is I think a really great work talking about some of the successes that Massachusetts has had on, work-based learning and career workforce to career career, to workforce stuff.

[00:05:22] But this article focuses really closely on sort of not only what different states are doing, but also what needs to happen at the federal level to create different work-based learning opportunities. And even what we call early college, high school. So a couple of examples, they profile a program in new Orleans called youth force NOLA.

[00:05:41] That looks at. High wage, high demand careers here. I have to give a shout out to our career and college pathways team at Excel and ed, where, you know, I also work when I’m not working with pioneer Institute. And they have done, we have a, a wonderful resource called pathways matter that [00:06:00] focuses on looking at.

[00:06:01] Hey, if you’re going to provide students whether they’re in high school or on the way to college with, on the job training, it should probably be in areas where there is a need within your state. And also we wanna be focused not just on, you know, training for any career, but on career that are gonna have a good return on investment for folks, high wage, high demand careers.

[00:06:22] So there’s a program like this in new Orleans students participate in what is called the career pathways programs of study, and they’re exposed to different careers and they can build skills in relevant careers. Many of them doing it when they’re in high school. And then you’re developing that only your professional network, but once you graduate high school, you’ve got this work experience that can help you make really informed decisions about, do you wanna enter the labor force?

[00:06:46] Do you wanna maybe go on to college, but put yourself through college while working, options that I think certainly Gerard I don’t know about you, but when I was coming up, it was sort of like. College was the holy grail. If you could make it there you went. [00:07:00] And if you were me, you scooped ice cream all the way through to make ends meet.

[00:07:03] When your student loans didn’t cover your living expenses, sort of a thing. Student loans of course are a big factor, deterring, many young people now who are saying like, listen, I don’t wanna come out of college saddled with what is now gonna be tens of thousands for many people. Some people.

[00:07:18] Hundreds of thousand dollars in debt, if you’re going onto, professional programs or advanced graduate work. But these are all the more reasons that young people are saying. Maybe I’m gonna take a look at work-based learning opportunities. Maybe I’m going to figure out how I can get what some call in some states it’s called early college, high schools, right.

[00:07:36] Where you can get. Two years of college credit while still in high school. So that when you do go on to enter college, you can transfer those credits to a four year institution. Many early college, high schools have partnerships. For example, with community colleges, I think this is attractive to a lot of families.

[00:07:52] You know, students, like I said, they don’t wanna go on and accumulate a lot of debt. They might want to have pretty good pay while they’re working their [00:08:00] way through a college program. And then there’s also this idea of stackable credentials, right? Maybe if I start off in one work-based learning program, I have that career for a little while.

[00:08:10] I might take. Another work-based learning program, go onto a community college for a little while, and then suddenly I’m stacking my experience, my skillset, so that as I get older and into my thirties and forties, I might not be in the same career that I was in my twenties, but boy, do I have a lot of experience behind me?

[00:08:26] So I think this is a really worthwhile article in highlighting the kinds of programs. I’ll note in Massachusetts, where pioneer Institute is based. Of course, we’ve got, we just had a proposal for a charter school in a high needs community that was supposed to be an early college charter school that was shot down, which is too bad because we would like to see more models like this.

[00:08:47] Because when they work, they work, the data are showing that done. Well, these are clear and some states are passing laws around this. So Texas being another one that we should point out has made a pretty big investment in early college, [00:09:00] high schools. So you can take your college coursework. Again, in those last two years and then transfer the credits to a four year institution.

[00:09:06] So none of this stuff around, universities telling you, oh, I’m sorry, it’s gonna take you five years to graduate because I really need an additional year of tuition. You know, shard, I’d love your take on this because as I was thinking about it, I don’t know. I was thinking back to my own high school education and listening to.

[00:09:22] and his co-author on our last podcast really made me think that what we used to call VO tech isn’t the VO tech or the work based training of today. Certainly in the late eighties and early nineties I think that there was this perception that the kids who just weren’t gonna be college ready should be funneled into VO tech programs, which is clearly not the case at all.

[00:09:43] But I think that with certain gen Xers and, , baby boomers to the that, that are still thinking about these things there’s a connotation of VO tech programs that just doesn’t ring true today with the kinds of things that we are seeing. So I think that’s an important thing to think about, but the other thing I hope [00:10:00] that we can have a really robust discussion about as states, especially implement more of these programs is the idea not just that these programs have to be available, but that as so many of the folks that we’ve already mentioned jobs for the future.

[00:10:13] Sell and ed have been pointing out. We have to make sure that work-based learning opportunities are really well aligned with current job markets. So that folks are really going into careers or having pathways to careers that are gonna make them the kind of living they need to have a good life and to prosper and to feel happy in their life, which survey show shockingly is what most people want.

[00:10:35] and one part of that, I think I’ve said that before on this show, Gerard is thinking about how do we communicate these opportunities, not only to families, but to students. And that means, especially when we’re talking about high school kids getting more resources too, for example, college counselors and others who know about the real availability of these programs, who can, implement these programs, not only in their high schools, but who can counsel.

[00:10:59] Students [00:11:00] wisely to say, here’s an opportunity for you. Doesn’t foreclose college could really be a boon to you, help you stay out of debt , and give you new opportunities in life that you hadn’t really thought about. So I’m excited about this article I’m eager and would encourage header and others to have more articles that talk about this latter focus.

[00:11:17] Like how do we really raise awareness of these programs and make sure that they’re high quality. So I’m curious Gerard, as to what you’re thinking about, especially as a father of, three young women , would this be the kind of opportunity that you might advise them to pursue?

[00:11:32] GR: absolutely.

[00:11:32] And the reason I say absolutely is because my wife and I have one area where there’s disagreement and of course, husbands will always say, there’s just one. So I’ll just say there’s one area and I’ve said, and I’ve said it on the show before, and I’ve said it to friends and I’ve said it in speeches. So this is not a revelation that if the two younger daughters decide up on graduation from high school or even.

[00:11:58] They don’t wanna go [00:12:00] directly to college or that they don’t wanna go to college. Guess what dad is okay with that. And the reason I’m okay with that is because what you just refer to as work-based learning, surely isn’t our grandparents VO tech. It is much more aligned to not only teach young people how to obtain a career in stem or even steam focused aspects of our economy.

[00:12:26] Not only traditional aspects, I’m in Virginia right now. My neighbor had me laughing because his air condition broke and it’s getting a little warm here and you don’t realize how important it is to have someone who understands refrigeration and who understands that until yours breaks down.

[00:12:43] And so we have to have someone come over and fix it. And when he did the math, he says he just made more in three hours than I do per hour. Yep. And so there’s A wage and the economic piece, but then that’s been there for years, but I also believe that work-based learning is feeding [00:13:00] into what young people want.

[00:13:01] My children are too young for gen X or Z, Z. So whatever they are is this also pushes the idea of entrepreneurship. And when we think of entrepreneurship, . We often think of it as being a sole proprietor or a sole practitioner endeavor. That is one articulation of entrepreneurship, but really entrepreneurship is a mindset.

[00:13:23] It’s a way in which you approach work and in way in which you approach opportunity and business. So for me, I would love for them to be involved with that. We’ve involved. Our girls starting at age five in coding camps in Lego league, where in fact, our middle school daughter went to the regional finals here in Virginia.

[00:13:42] So I’m all for that. I was all for that. When I was secretary of education here in Virginia governor Bob McDonald, major proponent of what you refer to as work-based learning. So we put in an opportunity. In fact Virginia in 2011, became at that time, the third [00:14:00] state to create a partnership with Microsoft because what we decided to do was to offer a Microsoft certification to high school students in Virginia.

[00:14:08] If you attended a title I school we said, you know what? We’re not gonna charge you to take the test. For your certification. Guess what, for our teachers who were going to be involved in working with students with this program, guess what? We’re not gonna charge you. We’re gonna make sure we take the cost off the table.

[00:14:27] And one of the reasons I made the recommendation to the governor in part was based upon my remembering reading the book the world is flat and there was a section in there. We talked about parts of India, where people just put in millions, really billions of dollars of investment. And there are other parts of India.

[00:14:45] Where there’re just a lot of challenges. Often they’re very rural. And so I went to the governor and said a lot of businesses moving to Virginia, understandably, wanna go to Northern Virginia or they’ll go to the Tidewater area. Or if they come to central [00:15:00] Virginia it’s to you know, a Richmond or to a Charlottesville because of UVA or to the Blacksburg area because of Virginia tech.

[00:15:08] I said, but there are portions of Southwest Virginia the Northern part of Virginia central, where people aren’t gonna go, but can we provide high school students with opportunities to become certified to create their own business? Well, that was 2011. Today there’s over 30,000 people certified through that program.

[00:15:25] So I’m a big proponent and who knows, one of my daughters may decide to go directly into entrepreneurship, may decide not to go to college at all. And I am okay with that.

[00:15:36] Cara: The question is

[00:15:37] GR: Gerard. Oh, I, I know the question is mom. I okay with that.

[00:15:42] Cara: well, I was gonna say, and also all that college savings, right?

[00:15:46] As parents, we were in this mindset that we’re supposed to be saving money to send our kids to college, like, wow. That would be a big win to become an entrepreneur right away. I don’t know. Our kids can take care of us in the manners to which we’d like to become [00:16:00] accustomed

[00:16:00] Guest 1: is my exactly.

[00:16:02] GR: anyway, your story.

[00:16:04] Too far off from mine, because we are going to talk about the PIL grant and we had an opportunity to talk, or at least with our, former colleague McDonald, we had a chance to talk about celebrating title IX which turned 50 years old. It’s also worth knowing that, you know, 50 years the global clean water act was signed and 50 years ago was a creation of the Peil grant.

[00:16:28] And the Peil grant is today. The federal government’s largest investment into higher education. And as you know, it is a program that is targeted toward families who make uh, a certain income and what it provides. In fact, for 20 22, 23 will be $6,895 for those students. But let’s put. Into context, why Pell grant matters today 2022, but we have to do that by going back to [00:17:00] 1972.

[00:17:01] Now, most people may not know that Pell grant is actually named after a Senator for island named CLA bore. Um,

[00:17:09] Pill who was

[00:17:10] a major proponent of higher education opportunities. And in 72, when Congress decided to amend the higher education act of 1965, it says that we have to do more to focus on students who are gonna become what we call today, first gen or first generation students, but also to lower income students, white, black, Hispanic, Asian, native American multicultural, who for holster reasons just need the extra up.

[00:17:40] Well, that was in 1972 to date, more than 80 million students have pursued in higher education since 1972, as a result of the Pell grant, nearly 60% of black students in college, nearly half of native Americans and Latinos currently receive a Pell grant. [00:18:00] That number is also. Relatively high for white students as well.

[00:18:04] The Pell grant today, as it has for 50 years, has provided a ladder of opportunity for millions of students, allowing them to earn a degree. So you and I, of course love to talk about ROI

[00:18:15] return on

[00:18:16] investment. And so in the article that I’m reading today, which is in Forbes and the author is Peter McPherson, who is the president of the association of public and land grant universities.

[00:18:27] They’re one of the country’s top nonprofit organizations focused on not only lobbying Congress, but also working in the states with governors, lawmakers, business, People and others to talk about the importance of higher education, but also the public investment. So what’s the return on investment.

[00:18:46] So according to a recent study, it showed that students who qualify for a maximum Pell grant see significant increases in college graduation and earnings compared to low income students who [00:19:00] did not qualify those. For example, who receive targeted aid are 13% more likely to graduate from college and have five to 8% more in earnings than students who did not.

[00:19:13] What’ more. And get this. The government actually regains the entirety of the investment through increased tax receipts just after 10 years. But I’m gonna put that in a different perspective. Let’s just assume that the average student will finish. College in four years, we know that’s not the case, but for sake of argument, do you know that the government, after you spent four years with the PIL grant, the government recruits its whole investment just in six years after you graduate?

[00:19:42] Why? Because now you’re investing as a taxpayer. You’re also investing as a homeowner. You’re also investing in the economy. So pretty good return on investment is something that we often overlook. There’s also opportunities for future generations. You and I [00:20:00] know that if you are in a home where your mom, dad, or both attended college, It increases the opportunity that you will.

[00:20:08] I am a first generation college student in my household. I am married with three daughters. My oldest daughter graduated from college in 2016 from Howard university, which is my Alma mater. And in fact, president Obama, who was a major supporter of Peil grants was her keynote speaker. So that’s at least one box that I can check on my own.

[00:20:28] And with the caveat of saying, and I’m fine if my two younger daughters decide out to go to college, but that’s another story. In fact, Kimberly and I won’t qualify for a Pell grant because we make more than the threshold of it. And I am a supporter of the families who need it. So I’m glad that this story is receiving some time on this show.

[00:20:48] I have seen and met and gone to school with a number of recipients of the Peil grant, but it’s also worth noting that it’s called the Pell grant. And I mentioned 1972 that’s because that’s when the amendment was [00:21:00] made to the 1965 higher education act. But also we have to give a shout out to. President Lindon Johnson who signed the higher education act into law in 1965.

[00:21:11] He is still the only American president to have earned a degree in education. And he said upon signing that bill in 1965, that this bill will provide a pathway for families in urban and rural areas to send their children to schools. And for the first time to really make the American dream possible. If the pathway is higher education.

[00:21:34] So wanna give a shout out to the Pell family also to at least one of his daughters who is keeping his legacy, but to say that in an, era where it is hard to find bipartisanship, where it’s hard to find people coming together, even with this issue, there is bipartisanship. For example, senators Murray Democrat from Washington, blunt, Republican from Missouri and representatives.

[00:21:58] Deloro. Who’s a [00:22:00] Democrat from Connecticut and Cole, a Republican, Oklahoma recently introduced a resolution, celebrating the 50th anniversary of the PIL grant program. An opportunity for us to say bipartisanship at work. What are your thoughts?

[00:22:14] Cara: That I love the word bipartisanship. I think that was like, after all of that wonderful dialogue here, Gerard, would I really appreciate you’re right.

[00:22:23] You’re pointing out here is something. That has been working in education for all of these years. And to mention, I actually, as a Senate page in 1992, I remember Senator Clayborn Powell of Rhode Island. And I, I, worked for all of the democratic senators at the time. And it’s, it’s a really, it’s an amazing program.

[00:22:44] That’s done a lot of good for a lot of people. And I thank you very much for your analysis of it, because I think that sometimes it’s easy to forget that there’ve been some great things that have happened in education in this country, especially when. We tend to be focused on some of the, not so great things, but Gerard, it is now time for us [00:23:00] to talk about another great thing.

[00:23:01] And that is, we’ve got two guests on who are gonna talk with us about the recent we keep saying landmark Espinoza was a landmark case. This is the one that pushes the Espinoza case. One step further Carson VMA. And so we’re gonna be speaking with one of the attorneys on the case, Arif Panju, as well as the lead plaintiff.

[00:23:21] One of the lead plaintiffs, I should say, we will be speaking with David Carson. His wife will not be able to join us, but I’m looking forward to that conversation. As I know you are coming up right after this.[00:24:00]

[00:24:50] Learning curve listeners. It is our privilege to have with us today, Arif Panju and David Carson. Many of you have been listening and probably [00:25:00] listening to us talk about the Supreme court’s historic recent decision around school choice. RF P J serves as the managing attorney with the Institute for justice.

[00:25:09] He leads IJ’s Texas office and litigates cases involving. Speech property rights, economic Liberty, and educational choice. Ari was co-counsel in the case of Carson v. Makin in the us Supreme court, his legal work has resulted in court victories in both federal and state courts. Ours work at IJ has been featured by media outlets, including the wall street journal, New York times, Washington post the Atlantic, Texas Tribune and dozens more nationwide.

[00:25:37] His opinions and views on legal issues have been published in several outlets, including the Dallas morning news, Austin, American statesmen and USA. Today he graduated law school with honors from Southern Methodist university and during law school, he clerked on the United States Senate committee on the judiciary.

[00:25:54] David Carson and his wife, Amy are residents of Glenburn, Maine, the Carsons with the lead [00:26:00] plaintiffs in the recent landmark, us Supreme court decision, school choice case Carson V Megan, David and Amy enrolled their daughter, Olivia at Bangor Christian schools, which serves kids in grades K to 12 for her entire school career.

[00:26:13] The Carson’s received no tuition assistance from the town of Glen burn because bang Christian schools is religious schools, even though Glen burn pays tuition on behalf of its other residents who select non-religious private schools for their children. Arif Panju and David Carson, welcome to The Learning Curve.

[00:26:31] GR: Thank

[00:26:31] David: you. Thank you.

[00:26:32] Cara: so exciting to have you, what a great victory for the people of Maine and, the US. Mr. Panju, let’s start with you. So, first of all, congratulations on your great victory here. We’ve had Michael Bindas on this show before Tim Keller, former member of the IJ team.

[00:26:48] And here at the learning curve, we have lots of respect for what you’ve done to expand educational opportunities for kids. Could you talk to us about the key legal contours of Carson, B Mac, and then [00:27:00] the potential impact of this decision?

[00:27:02] Arif: Absolutely. And it’s great to be on, on with Pioneer. I think one of the key aspects to learning about any case is to understand what is the controversy about why did this lead to a lawsuit?

[00:27:13] And it’s important to note that over the past several decades, there’s been five lawsuits over three plus decades challenging what I’m about to lay out for you. And that is in the state of Maine since 1980 the school choice program they have there, which is a program that allows families that live in parts of Maine that do not have a public school.

[00:27:31] They can take advantage of a school choice law called a tuitioning law, where they get money, that would’ve gone to an educational option that they don’t have a choice over. And instead the parents have a choice. They can use that money and go to a school of their choice, private public within Maine, outside of Maine.

[00:27:49] It doesn’t matter. The only thing that matters since 1980 is that you are barred from picking a religious school. And this has been challenged on free exercise grounds multiple times. [00:28:00] But the lawsuit that we filed, the most recent one that made it up to the Supreme court is the one that finally led to the religious exclusion being declared unconstitutional.

[00:28:10] And the contours of the case were that, parents have a free exercise, right. To exercise their religion. And that includes directing their child’s educat. And picking a school of their choice can be part of that exercise because as Dave is gonna explain, he wanted to pick a school that aligns with his sincerely held religious beliefs and that he and his wife thought was the best environment for their child, Maine barred, that from taking place.

[00:28:36] And we challenged the law in the district court. And we lost because there was precedent from the prior cases that foreclosed our legal arguments. Then we took it up to the first circuit. And something interesting happened in the first circuit. And that is that we were pressing our arguments, but at the same time, the us Supreme court decided a similar case called esposa V Montana involving the state of Montana’s school choice program.

[00:28:59] And this was [00:29:00] another case by the Institute for justice. And we were challenging the exclusion of religious educational options from a school choice program. The us Supreme court said that just because a school is religious, it has a religious status. That doesn’t mean that the government can discriminate against that option.

[00:29:14] In fact, that’s unconstitutional that violates the free exercise clause. And despite the government there claiming that it was just trying to preserve separation between church and state that’s the establishment clause. The Supreme court made clear that these two clauses, the free exercise clause and the establishment clause have to coexist.

[00:29:33] They’re both in the first amendment. Now, in the main case, we were sitting at the first circuit when that opinion came down from the Supreme court. So of course we advised the court that after oral argument shortly after oral argument, when the opinion came down, we notified the court a few months later and said, look, esposa forecloses the state’s arguments, and we should win here.

[00:29:52] The state and also the first circuit responded by saying, well, this case in Maine is different. [00:30:00] Religious schools can part. But if they do religious things, in other words, if they use religion in teaching or in providing the educational option, even a hypothetical for math, if they invoke no Ark then they’re teaching through the lens of religion.

[00:30:14] And because they’re using religion, not just being religious, they can’t participate. And so the main case became a case about religious use, about school choice and whether the government can simply cast a school choice program as an extension of their public school system. so we lost in the first circuit, the court applied rational basis, review the lowest form of judicial scrutiny possible, and we lost that teed up a cert petition.

[00:30:38] And then we took it up to the Supreme court.

[00:30:40] Cara: Yeah. So I remember actually sitting and hearing those legal arguments in the first circuit. It is really, really interesting. And this also distinction between status and use something, frankly, sort of hard for most of us to wrap our heads around, especially when we think about the things that any school, the ethos [00:31:00] that any school lives sort of year to year.

[00:31:01] Can you. Expand a little bit on the potential impact of this case. And let me, let me frame the question here. So for our listeners who don’t have to pay attention to these things on a daily basis, right? laws are made at the state level and there are now I think more than 25 states that have some form of school choice that allows parents to access religious schools, Maine have this very strict clause.

[00:31:25] I think many people don’t realize that Maine isn’t. In fact, the only rural state in this country where sometimes kids don’t have, you know, you have to access a school in a different town. But what is the real impact of this case? Because when Espinoza happened, many of us thought, okay, well, here it is.

[00:31:42] You can no longer rely states on these things called Blaine amendments, which prohibit the flow of funds to religious schools, right. In state constitutions, because Espinoza invalidated most, not all, but, most of those does this case. Change the game just in Maine. [00:32:00] Does it change the game across the board?

[00:32:02] And if so, do you anticipate that we will see the proliferation of these school choice programs as we did post Espinoza, which actually also coincided with the pandemic, which revealed the need for greater choice. So really long question there, but the bottom line is what kind of implications do you see for

[00:32:21] GR: this?

[00:32:23] Arif: So I think the public interest impact is gonna be big. It’s gonna be nationwide and second. I think it’s gonna be nationwide because of how the court ruled which goes to Both the status use distinction. And also one of the main strategies that Maine had for defending the Tarian exclusion I’ll address both in turn.

[00:32:40] And I do think just to preview it, that this will lead to an expansion of existing programs. And I mean, you just saw that Arizona now has universal school choice program and you’ll see throughout the state’s new programs as well as expansions. So why is it a big deal? Carson is a big deal because it puts an end two Blain amendments.

[00:32:59] And I think [00:33:00] one of the reasons that it’s a nice book end to esposa is because Espinosa was the court saying you cannot discriminate based on religious status. And Carson says, and by the way, you can discriminate because someone’s doing religious things either. There is no difference between status and use.

[00:33:17] Something that offends and violates someone’s free exercise, right? Because it attacks religion because it’s religious is no different than something that violates a free exercise Liberty. Simply because the government is saying that you’re doing religious things uh, you can believe inward, you can act outward and picking a school or being taught things through a lens of religion is part of the free exercise clause.

[00:33:39] So status versus use distinction doesn’t carry any water. That is a nice bookend to eliminating the blame amendments, because that was the open question does use restrictions on using religion within the context of school choice programs still give life to the plain amendments in some way.

[00:33:55] The answer is no, those are done. The second aspect of the Carson ruling [00:34:00] that’s important is based on the way that Maine decided to defend its program main strategy for defending its sectarian exclusion, which is the one. Law that said you can pick whatever school you want, but not a religious school is they just attempted to redefine the benefit.

[00:34:16] They said, well, the benefit in the tuition assistance program is not a school choice program. it’s a quote, public education end quote. And, , according to Maine voila, no more discrimination because public education has to be secular, not sectarian. And they insisted that even private schools participating in the program, including private schools in Vermont, Michigan, New Hampshire, you know, all these other states, California, they’re all part of Maine’s public education system.

[00:34:41] Because if a parent chooses to use the tuition benefit of that school, according to Maine and this argument was rejected by the high court, their defacto public schools. Now that’s incorrect. The Supreme court pointed to all the reasons it’s incorrect, private schools. Remain private. Even if students [00:35:00] pick those schools using a school choice program, they don’t have to schools, don’t have to accept everyone.

[00:35:04] main funds, people that go to single sex schools, all girls are all boys schools. They don’t even have to have a uniform state required curriculum as long as they’re accredited by the new England accrediting agency for private schools. And so, and they can charge more than the tuition benefit.

[00:35:20] Many really kind of prep schools in new England charge, tens of thousands of dollars. And Maine’s tuition benefit could cover some of it, but not all of it. All these characteristics led the court to conclude that. Private schools do not become public. And so, you know, this idea that the school choice program is just an extension of the public school program was rejected.

[00:35:40] And that’s important because when you look to the states and you, hear the arguments in opposition to school choice, one of them is simply that there’s the religious argument that somehow it’s offensive to allow parents to pick a school of their choice. If they decide to pick a religious school, that’s been stamped out.

[00:35:57] But also that somehow the [00:36:00] public school system is the end all be all because state constitutions have an education clause and education clause generally requires states to have a system of free public schools. Well, it’s true, but state constitutions also task states with supporting the education of children.

[00:36:15] And that means you can do that in all sorts of different ways. And , the way that Maine argued its case at the Supreme court. To try to make everything about the public school system and SCOTUS reentering their view by saying the main’s view and saying no, their public schools and private schools are very distinct and the state can support both just adds more fuel to the reality that school choice is about empowering parents and kids and giving them the opportunity to pick the school of their choice.

[00:36:40] So Carson will have a huge impact. It’ll have a, an impact I would say that will continue what Espinoza did. and even more, because it’s really put an end to blame amendments period. And because it’s stamped out this argument that when there’s a school choice program, it’s just an extension of public education.

[00:36:56] That’s not the case. It’s a benefit for people. [00:37:00] That’s true. And public benefits in education. Don’t just mean public school. It can mean other things like school choice. And we have a great opinion from the us Supreme court explaining that.

[00:37:09] GR: Arif. I’d just like to follow up on one point you made. So I’m excited about the decision.

[00:37:14] Thank you for your role in it. So wearing my skeptic hat am I at least in the ballpark to assume that at the state level uh, some people who find private school choice programs across the board obnoxious to the constitution, do you think this may give rise to an interest to try to create new regulations, to either overregulate choice programs or to create regulations?

[00:37:42] Just for the sake of trying to slow walk the benefit? I,

[00:37:45] Arif: I don’t think anything different than what’s already being done and that’s because the teachers unions fight tooth and nail to stop these programs while they’re being created to saddle them after they’ve been created. And then, go to courts also to try to.[00:38:00]

[00:38:00] Kill those programs. And so, they’ve been motivated by a desire to eliminate options for the varied children that should have options that actually fit their needs and that’s not gonna change. So I don’t think there’s anything in the Supreme court opinion that will lead them to doing anything different.

[00:38:16] I do think that if you look at some of the reactions that are coming out from the teacher’s unions, that it’s obvious that the focus that they should be giving to educational options and children is not where it needs to be. you see a lot of knee jerk statements railing against the Supreme court.

[00:38:34] But states have to actually undertake a sober reflection of the court’s decision and what it requires of the states themselves. And the way to do that is, , not to just reflexively go and try to. Throw government regulations at educational options that help kids and parents find the right fit.

[00:38:54] I mean, everyone who has a kid knows that it’s not easy to find the right fit for an educational option where you drop your kid off and then come [00:39:00] back at the end of the day to pick him or her up. And here, states can best balance the constitutional right of parents. And they should spend time thinking about this, the right of parents that choose the schools that are best for their children, and then balance that against the state’s own anti-discrimination in interest.

[00:39:15] It is possible to develop policies that respect the concerns of both advocates of different issues and also advocates of religious Liberty. But that’s only if elected officials are genuinely committed to that task. And when I see the reflexive kind of knee-jerk reactions, I think that highlights for me that, if government officials are following that move, then they’re not actually engaging in what they were elected to do, which is to.

[00:39:40] Ensure that you’re protecting people’s rights and that you’re advancing the state’s interests, but you’re committed to the task on respecting everyone’s rights. And so if, that’s the frame that you’re in I think school choice programs will continue to flourish. I think if government officials wanna be hostile to educational options, they’re gonna be doing the same thing that they’ve been doing [00:40:00] over and over and over.

[00:40:00] And it’s been failing because school choice has expanded throughout the United States. So it’s important to be optimistic here optimistic. And the solution is to have more educational options not fewer and not just trying to relegate everyone into the public school system because the outcomes are much better when you give parents the opportunity to make better decisions with their child.

[00:40:18] GR: Well, thank you so much for that reply. So I’m gonna return over to Mr. David Carson first of all, congratulations. And thank you personally, and also to your family, for your willingness to place such a historic role in shaping education law. As someone who has an opportunity every spring to teach a course at UVA law school.

[00:40:38] But I also give lectures about school choice and policy across the board. We see a name on a case, but we really have no context of who this person is. So who is David Carson?

[00:40:50] David: I was just somebody that saw an opportunity to help, I guess, in this situation. I mean, I grew up in Christian schools, and I know my parents struggled to pay for it, [00:41:00] I thought this was a way, the school was contacted many years ago now about looking for people to be involved with this case I thought for sure this would be something I’d want to be involved with. this is where it all started, you know, with Tim Keller, he came up, the first time and, you know, we met with him and some of the other crew from IJ, you know, it’s just been, been a good experience for us

[00:41:21] GR: in terms of your family itself. You don’t get into a case initially thinking that you’re gonna become not only a national name, but for the rest of American history particularly given the significance of this case the Carson family will be a part of the discussion as well as Maine. How has this decision impacted your family, children, or maybe even people close to you?

[00:41:44] David: Really frost. personally, it has, my daughter’s already graduated. She graduated a year ago, she’s now in college. So, there’s no financial gain for us. This was more a chance to help people. I worked at the church at the school [00:42:00] years ago, back when I was first outta college, I was facilities director there.

[00:42:04] And , there was times you’d see kids that just couldn’t afford to go to school there. You know, their parents are struggling and then sometimes the parents would have to pull their child outta school because they couldn’t afford it. a lot of times parents there’s grants available and stuff that people would help to pay for that.

[00:42:21] But some people just don’t want to take a handout. you don’t know that it’s a handout, but it’s just, they don’t want to have to rely on somebody or something for free, , especially up here in Maine, Maine’s got the mentality of, let’s just get it done, do it ourselves.

[00:42:34] If we’re gonna make stuff happen on our own, we don’t need a bunch of help from other people. I’ve seen that over and over again. so I think here in the future, I’m hoping that this really will change things around that way. It allow a lot of parents to send their children where they want to go.

[00:42:49] I’ve known people that they’ve sent their kids from public school to Bango or Christian, for example, you know, when the kids have just thrived, they love it there, they get more one-on-one attention. Their grades [00:43:00] go up. And if you look at the academics at the school, you know, we play top in the nation, so we’re above the public schools, not bragging, but I mean, most of our classes are in the top nineties percent of the United States.

[00:43:13] So I just think this is a good opportunity for parents to be able to send their kids where they want to go and get that extra attention. class sizes are smaller. There’s a lot of personal attention for the children. really is a good

[00:43:25] GR: program. Schools out there are great too.

[00:43:29] So, no, absolutely. And as Karen and I have shared a number of times on our show, you can support private education or you can be a, whatever we would call a pro school choice person and not be anti-public schools. We know that’s not the case with us or a lot of our listeners. So for many of us who don’t know a lot about Maine or we’ve provided the good legal background in terms of education in Maine, we also know that at one point, a lot of schools private could be involved and they change the law.

[00:43:59] even [00:44:00] mention something about Maine and doing it on your own. And what is it about not only Maine, but when was your aha moment when you said, you know what, something’s gotta be done about this, cuz I want more families in Maine to even have more opportunities than we do now.

[00:44:16] David: Well, really, when we got the first email about joining this lawsuit was when it was first, like the opportunity came about, because usually you don’t think that anybody, you know, cause you know, it’s gonna be an expensive case.

[00:44:29] I mean, luckily, , IJs covered everything for us, it’s been, very good, but at the time, you know, you’re getting a little older, kids are getting in school and it’s like, really this is something somebody should do. Somebody should stand up for this and why not us?

[00:44:43] I talked it over with Amy and she’s like, no, if you want to do it, let’s do it. And I’m like, okay,

[00:44:48] Arif: they embody exactly what you want to see around this country. And that’s people standing shoulder to shoulder in defense of the constitution.

[00:44:55] And, recognizing that there are two political branches, the executive and legislative, [00:45:00] but in a judicial branch, if you have a good legal theory and, you’ve been injured by a law that you think is unconstitutional, you can file some paper in that court and conceivably take it all the way up to the Supreme court and make law by vindicating those rights.

[00:45:13] And you don’t need anyone’s permission to do that. Other than working through the court system and appealing decisions that you think are wrong. That’s exactly what, what Dave and Amy did. And I think they exemplify the intrinsic motivation that all Americans have, and that is to defend Liberty.

[00:45:28] And when the opportunity presents itself I applaud those that decide to push the go button and because you’ll end up with a Carson V Mac that protects over 300 million.

[00:45:37] GR: To follow up on that, David and something you had mentioned earlier IJ reached out, you spoke with them, your family had a conversation.

[00:45:46] You said, you know, well, why not us? And now we have , a major Supreme court decision that uh, just heard a benefit over 300 million people. Were there any times during the process where you just thought maybe this isn’t gonna happen, or maybe where [00:46:00] you question , , should I have been the one to get involved?

[00:46:02] Was there ever a point like that in the process?

[00:46:05] David: No, I was in, , if I’m in, I’m in, I’m just, you know, let’s go get it done. You know, that’s just how I am. Uh, and I always thought, when we first talked with him, we figured it would probably go to the Supreme court. We hoped, cause we knew the local stuff to make a big impact here.

[00:46:20] , we really needed to go to the Supreme court, so we knew that up front, we knew we were gonna be into this long haul, I have never once regretted being involved with this, I just thought it was something that we should do. it’s unfortunate the way the attorney General’s acting right now with the state, but, , I guess everybody’s got their opinions, but, we were hoping that, they might go along with this a little more graciously, but doesn’t appear

[00:46:43] GR: to be that way.

[00:46:45] absolutely well, and, the last question for me is really an opportunity for you to speak to families throughout the country and really throughout the world, because we have a pretty large listenership. What do you wanna say to the Davids and Dianas across America and the [00:47:00] world who maybe find themselves in a similar situation in their estate.

[00:47:04] What do you wanna share with them? what lessons can they learn from you and, your family?

[00:47:09] David: Just stay with it. You know, if it’s something that comes up and you get the opportunity to go for something like this, like we did, I would take the opportunity. I don’t regret a minute of it.

[00:47:18] I’m hoping this makes a big difference nationwide. We’ve been contacted, just thanks. But even the Catholic diocese, they’ve, thanked us for what we’ve been involved with. Like I said, this is mostly the team at IJ, you know, on a reef and Michael, , and all the other lawyers we’ve got, Andrew Wimer, he’s been our media guy, telling us what to do and what to say, you know, for the most part, but the team has been really phenomenal don’t be afraid to be involved.

[00:47:44] if anybody thinks that this is something that their state needs to open up, then get involved, it could make a big difference in a lot of people’s lives. You know, then we know this wasn’t making anything for us, we can afford to send our daughter to school.

[00:47:56] That’s why we did it. at first, , when you’re younger, you struggle to pay, [00:48:00] but it was always gonna be done. It didn’t matter. That was the first choice. That’s what bills came first. You know, the school got paid. Then I know a lot of the parents are struggling, but you know, keep up with your beliefs, and hopefully this will free up a lot of other students to be allowed to go across the United States.

[00:48:15] people all across the country we’ve heard from, thanking us cuz this they’re hoping this is gonna make a big difference in their states as well.

[00:48:22] GR: Well, David, thank you again. Same to your family for raising your hand, winning the opportunity to get involved was presented a reef.

[00:48:30] Wanna thank you and the team at IJ for , not only this case, but just the decades of work that you’ve laid at the state and federal level to make today possible. I just think of a conversation, really. The first conversation I had about private school choice in December of 1991. When I was a fifth grade school teacher in Los Angeles and a gentleman named Kevin Teasley was in the south central Los Angeles area, trying to get parents to sign a [00:49:00] petition, to get a ballot initiative in California to create school vouchers.

[00:49:04] And there was a young attorney also in Los Angeles at the time named Clint Bullock who later of course do some great things with IJ and argue cases across the board in terms of school choice. But I J’s been there from the beginning. David, as you said, if parents are interested in getting involved, if you know, parents, listeners tell them to reach out to IJ and again, you know, thank you for your work, Karen and I are glad to have had you onto the show.

[00:49:30] And we look forward to future conversations, honor. Thank you.[00:50:00] [00:51:00]

[00:51:58] Cara: Well, after that [00:52:00] great interview, we need to close it out with our tweet of the week from former learning curve, guests, maybe future learning curve guests too. Michael BHO. I like this one. makes me think about my own kids. Well, most things do educators preach about growth and grit to children, but the system itself fails to encourage perseverance and curiosity says, Michael BHO in ed next.

[00:52:24] What I love about this take is that it separates. Educators from the system in which they work. Because a lot of times we have singular phenomenal educators who are working within structures and systems that not only fail them, but fail children. And also let’s think about these terms for a minute, perseverance and curiosity, all important things, but there’s something that you have to teach and instill, and in require and model for children and require them to practice over and over again, we can’t just preach about it.

[00:52:55] We gotta show our kids the exact same things. Gerard [00:53:00] my friend, before I say goodbye to you, I know you persevere. And you’re certainly one of the more curious people I’ve ever met, which is something I appreciate greatly about you. Next week, we’re gonna be talking to a guest who I’m sure has those traits as well.

[00:53:13] Dr. Joseph Ellis is the professor emeritus of history at Mount Holyoke college and author of the Pulitzer prize winning book. How many Pulitzer prize winners do we have on the learning curve, by the way, can. Go there for a second. I mean, come on.

[00:53:28] Arif: I think this will make the ninth. Oh,

[00:53:28] Cara: it’s gotta be more than that. We’re gonna go back and count. Yeah, we’ll go back that next week. Okay. But he’s gonna be talking to us about his book, founding brothers, the revolutionary generation, well timed for the upcoming holiday. I know you’re not gonna eat a hot dog Gerard, but I hope you eat something that makes you happy.

[00:53:45] I’ll I hope you something that makes you happy and that you have a wonderful long holiday thinking about independence day and what it means with family and friends. And until then my friend say hello to [00:54:00] your family, and I’ll look forward to seeing you next week or hearing you what, whatever it is we do,

[00:54:05] GR: whatever it is.

[00:54:06] We do look good being with you. See you next week. Take care. Bye.[00:55:00]

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