Becket Fund’s Eric Rassbach on Religious Liberty & American Schooling

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This week on The Learning Curve, Eric Rassbach of the Becket Fund for Religious Liberty discusses school choice and religious freedom. He talks about competing legal philosophies and views of the U.S. Constitution as they impact education, school choice, and religion liberty, and why issues pertaining to religion and schools remain so divisive at the K-12 level. Mr. Rassbach examines the long-term implications of recent, landmark U.S. Supreme Court rulings in favor of families choosing religious schools for their children, as well as key points at issue in Loffman v. California Department of Education, in which a group of parents are suing for their right to use special education funding at Orthodox Jewish schools.

Stories of the Week: Cara discussed a story in the Montana Free Press about challenges to the constitutionality of a charter school bill. Gerard discussed a story in the Des Moines Register about the population of education savings accounts in Iowa.

Eric Rassbach is Vice President and Senior Counsel at the Becket Fund for Religious Liberty, participating in path-breaking victories at the United States Supreme Court, including Hosanna-TaborHobby LobbyHolt v. HobbsZubik v. BurwellAgudath Israel of America v. Cuomo and Fulton v. Philadelphia. In 2020, Eric argued Our Lady of Guadalupe School v. Morrissey-Berru to the Supreme Court, garnering a 7-2 win for his Catholic school clients. Eric has briefed and argued cases in federal appeals courts and state supreme courts nationwide. He frequently comments on church-state issues in the New York Times, the Washington Post, the Wall Street Journal, and other outlets. Eric has published legal scholarship in the Harvard Law Review Forum, Tennessee Law Review, the Illinois Law Review, the Cato Supreme Court Review, and other legal journals. He was a law clerk to United States District Court Judge Lee Rosenthal in Houston. Eric graduated from Haverford College with a degree in Comparative Literature, is a member of Fitzwilliam College, University of Cambridge, and is a graduate of Harvard Law School.

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The Learning Curve with Eric Rassbach

June 21, 2023

[00:00:00] Gerard Robinson: Listeners, this is Gerard Robinson coming to you from beautiful Charlottesville, Virginia. I am here joined with the fabulous, the brilliant, the always interesting Cara, who is going to talk about what we are going to talk about today, which in many ways will be one of the last. But not yet last to be conversations we have together, my friend. How are you?

[00:00:48] Cara Candal: I know I’m well. Yeah. I don’t think we have shared with our listeners yet, Gerard, that you and I who have been a team now for what we’re going on, two plus two and a half years… [00:01:00].

[00:01:01] GR: Nearly three and a half.

[00:01:03] Cara: Three and a half. Yeah, you started in 2020. It went so quickly, Gerard, that I just feel like it’s sort of like my life. You know, in the morning I wake up and I’m like, I, I thought I was 25. Wow. we can share with our listeners that this will be our penultimate show we have decided to. Say goodbye together because you and I have become quite a team over the past few years, I think. And so, The Learning Curve will be off on new adventures just without Gerard and Cara.

[00:01:33] Cara: But we can talk more about that. Next week. So, yeah, not, not time to get sentimental yet, right? Gerard? Not yet. We’ll save it. Not yet. Not yet. Not yet. All right. So save it for next week. But yeah, so it, what did you say? I’m always, I’m always fun. I’m always something you listed. characteristics that my children would disagree with, but I thank you.

[00:01:54] Cara: And I’m here. We have, we are finally out of school here in the great state of, the great commonwealth of Massachusetts. My kids are finally out of school today I negotiated this super fun reset to summer camp, which sounds like it should be easier than school, but when you have three different children in three different camps, it’s not. So, bad planning on mom’s part.

[00:02:16] Cara: But other than that, happy to be here with you and we’ve got a great guest today, Gerard. We’re gonna be talking with Eric Rassbach, who is senior counsel at the Becket Fund for Religious Liberty. So, I’m looking forward to that. Also. We’ve got some great stories of the week. No, no dearth of things to talk about in our world, but why don’t you go first? I’ll let you have the first word here.

[00:02:38] GR: When we think about American politics, Iowa, of course, comes to mind because they’re one of the first states to host a caucus, to give us a glimpse into who are the nominees for political parties. Well, guess what? Iowa is now in the news again for a different level of politics. So, when Iowa and the governor, Kim Reynolds, she made school choice one of her signature issues as governor, and she signed into law, as did other states, an education savings account bill, signed into law. And the goal, like ESAs, is to provide money to families who want to put their children in a private school of their choice.

[00:03:21] GR: Well, Iowa, at least the legislative analysis team, they said, we estimate that 14,000 people are going to apply for the ESA and we estimate roughly it’s going to be $107 million that it’s going to cost the state. Well, here is a real good glimpse into how people vote with their feet in the real world. Now, I’ve worked in other states where we have school choice plans, either a voucher tax credit program or an ESA. 14,000 people was the estimate. I can tell you that was pretty good. Guess what? 17,500 families have signed up for the ESA program and as a result, of course, it’s going to raise the amount of money needed for the program to approximately $133 million. So, before I walk through the numbers, let’s just take a moment to think about this.

[00:04:20] GR: Iowa. A state that’s not known for a lot of school choice, a state that’s one of the best in the country in terms of strong public schools. Also, strong public universities, as well as private a state that has done pretty well across the board over time with NAEP and they decide we want to offer an opportunity for people to go to private schools.

[00:04:40] GR: Now, of course, those who don’t like school choice use two arguments to say why it’s going to fail and why it’s going to basically be a bad thing. Number one, they said you’re going to take money away from public schools, and that’s going to destroy public schools. They’re going to close and they’re going to consolidate. Well, you know what’s interesting? There are 99 school districts in Iowa. Guess what? 41 of those school districts do not have a private school. 41%. 41. So roughly 41% of all the school districts. There’s no private school. And guess what, 20 have at least one private school. So, when you combine those two, nearly two thirds of the school systems in the state of Iowa have no private schools, which means those public school dollars are going to stay in place.

[00:05:33] GR: And when we’re talking about dollars for schools, $133 million, the teacher unions and others said they’re draining money away from public education, and yet they didn’t mention that the budget for Iowa is approximately $3.3 billion in a state where two-thirds of the school system students, in fact, who go there and are in those schools, there are no private schools [00:06:00] or at least one in 20 of those. So, the idea that this is going to drain public school system is just not gonna fly. One argument they did not use is that ESAs would lead to racial segregation as they do in many other states, in part because Iowa is one of the most racially homogenous states in the country.

[00:06:18] GR: Nearly I think 88% of the population itself is white. So they didn’t use that one. They did bring up one that we should think about. And there’s a concern about LGBTQ students and whether or not private schools are going to bring them in. That’s a legitimate question, and we will see how this plays out in Iowa as we’re watching other states do the same thing, because this is public money. These are religious schools. They can decide who can come in and come out. So, we’ll take a look at that. But it was just worth noting how many schools are not going to be devastated. That’s number one.

Number two, 17,500 families deciding to put their name on the list to participate in this program is tremendous. Why? Because it shows that in a great state with a great public school system, there are families who simply want a different type of education for their child. They’re not anti-public school, they’re pro smaller school, they’re pro Catholic. In fact, the Catholic diocese from the state said that their school system could roughly house 7,000 additional students to what they have right now. So, we’ll see how that will work. So as, when we think about Iowa, we think about politics. Here’s one place to look. This gonna give us a new glimpse into exactly what ESAs look like. ETS a is roughly $7,600. And that money, of course, is the state portion.

[00:07:42] GR: The school system who’s losing the student will keep approximately a thousand in place, and within three years they’re going to open it up to everyone. Right now, most of the families who come in will be under $300,000. So that is my take on Iowa to be my last story of the week for our show. I think it just brings in together what we’ve talked about on the learning curve. People, politics, progress, promise — and performance.

[00:08:12] Cara: What’s my thoughts? Waiting for the final alliteration, you know? And I was just thinking, wow, he’s hitting every school choice argument I had. And of course, this is something that is near and dear to both of our hearts, which is why we spend so much time talking about it.

[00:08:26] Cara: And this is a show about how we should be thinking about education differently. For listeners, this number that you’ve cited in Iowa, right, that they are so far over the number that they had planned for what you said they were planning for 140,000. Is that it Gerard?

[00:08:44] GR: 14,000.

[00:08:46] Cara: Oh, I’m sorry. Well, there we go. They were planning for 14,000 and now they got to what, 17,000 or something like that? Yep. which is amazing. So, let’s put this in context for our listeners. Most ESA programs to date. You know, we’ve had this year where ESA programs, I wouldn’t call all of them, quote unquote, universal because they’re like Iowa.

[00:09:04] Cara: Some of them will open up over time, but they aren’t universal yet. But traditionally, ESA programs have been teensy. Weeny teeny. I’m talking anywhere from a few hundred kids, in some cases to a few thousand kids in other cases. And they’ve either been means tested, meaning you have to make under a certain amount of money to qualify.

[00:09:23] Cara: They’ve been solely for students with specific needs, et cetera. So, this is a new day and some folks would say, oh, I don’t like the term, vote with your feet. I’ll, I’ll point to a conversation that I was having. I was with family in my home state of Michigan this weekend, and having a conversation with a beloved family member who just really vehemently disagrees that, unquote any public funds should go to private education, to which my response was well, families and kids can’t wait.

[00:09:53] Cara: So why on earth should we say fix, something that we’ve been trying to fix since before Brown v. Board and tell families, just hang out and, and wait a bit. And this is. Exactly what you’re saying when, when parents resoundingly say, I need something different it’s a new day, but it got me thinking so much about we are constantly drawing this distinction between what is public and what is private.

[00:10:16] Cara: And so, we’re constantly talking about public money for quote unquote private education. And I think we’re getting to a point where we need to flip that script and question what is public? Education because if public education is publicly funded, then it doesn’t matter what type of school you choose to attend. If we break down barriers, specifically those that have long been related to zoning and redlining and things designed to keep people out and not let them in, designed specifically to keep black people out and not let them in. If we think about breaking down those barriers and boundaries, then what we have is just a public system unlike one that we’ve known before. Now you bring up the really good point that private schools, as entities that have traditionally been privately run, have autonomies that public schools don’t have, and they should continue to have those autonomies. There’s, you know, there’s this really interesting thing around the question of the extent to which private schools, faith-based schools is what mostly attract the argument, discriminate specifically against LGBTQ+ families and/or children. And I’m not going to say that it never happens and when it does, I think it’s quite egregious. But I think that the instances when it happens are so few and far between if you really look at research and anecdotal evidence.

[00:11:40] Cara: But that said, that’s also something that could be fixed. At the federal level, right? If we had equal protections for all people regardless of sexual orientation or gender identification, whatever it is, that would be something that would be out of the hands of the states. So, it’s something that I just like to encourage people to think about because most laws that allow public funds to go to private schools ensure that those schools have to, at a base, adhere to federal civil rights quotes. And so, it’s something that, there are probably multiple ways to thinking about it, but again, I’d like to say I think most parents. First of all, in the context of school choice are going to choose the school that is the best fit for their kid anyway. And so, they might not be choosing a, Catholic school if for example you know, they don’t agree with the Catholic faith or pick your religion, whatever it is.

[00:12:34] Cara: So this is about pluralism of course, as somebody we’ve had on the show a couple times, Ashley Burner has written so wonderfully about and really something to think about. And I’ll pick up really quickly, Gerard, before I get to my story of the week. The supply side issue that you are citing here? Because to me the old arguments against school choice are really becoming just that they’re becoming old. They’re not holding up because people across the political spectrum are saying, Hey, I’m going to take advantage of these programs because it’s what I want for my children. But. When folks want private schools and those schools don’t exist, we’ve got to think about how you incent the establishment of new and really diverse crops.

[00:13:17] Cara: I mean, diverse in terms of like the kinds of innovative educational offerings they’re giving to children, the kinds of children they, want to serve. Diverse offerings across the board, and that’s going to be a problem not just in Iowa, but in states like it is to attract really education entrepreneurs to these places to offer new options to parents.

[00:13:38] Cara: I’m going to take a hard left, not a hard left. I’m going to take like a, like a soft left, Gerard, because my article is also about a topic near and dear to our heart. It’s about Montana and the birth of a new charter school law, which we talked about just a little bit on this show, but it’s something that I think deserves a little bit more attention.

[00:14:01] Cara: So, as you know, Gerard, recently, Montana, one of the, one of the old holdouts in charter school world. I think now we’re down to like just two or three states that no longer have charter school laws. Finally this year has passed a law that, and is of course now there’s a lawsuit to repeal it. But I wanna give a shout-out to Learning Curve listeners and staunch advocate for kids Trish Schreiber, who really did so much to make sure that Montana kids have access now to charter schools.

[00:14:32] Cara: And so, this is a law that is going to, when implemented, this article says if implemented, but I’m going to say when, will allow parents to choose what Montanans are calling a community choice school because Montana has this antiquated language about charter schools on the books. And these schools are, in essence, they are charter schools. They’re going to be, they’re going to be a contract outlining their powers and responsibilities and performance expectations. So, autonomy in exchange for accountability, and they’re going to be authorized by commission appointed by the governor, state superintendent, and bipartisan legislative leadership.

[00:15:11] Cara: So, this is really fascinating because to your point detractors of this new law are saying, oh, this undermines public education and this is going to be terrible and it’s going to drain money — I want to note this is straight from the language of the bill, that these schools would re, the law requires them to be open to quote any student residing in the state.

[00:15:34] Cara: Any student. So, talk about breaking down boundaries. In Montana, a largely rural state will probably also have more virtual options for students. You’re thinking about students who come from places where there is maybe one option and one option alone. They’re going to receive per pupil state funding through the Office of Public Instruction similar to public schools. So, they are publicly funded, of course, as all charter schools are, they will not be able to discriminate as to whom is accepted as no charter school can. And they’re also going to have, be exempt from certain regulations, which will allow them the flexibility to serve kids and to organize around a particular mission or theme.

[00:16:12] Cara: So, the lawsuit that’s being brought is one that we’ve seen this dance before. We’ve heard this song before. It’s one that says, you know, this isn’t constitutional. These are calling charter schools, private and privately run and launching all of the unquote dirty words against them. But I think that if history shows us this battle’s been fought in other states. It seems that the people of Montana really want these new charter schools to go ahead. And I look forward Gerard to seeing the day when the first charter school opens in Montana, and then the second, and then the third. And kids have different options because just like with ESAs, it’s a new day and charter schools are going to be part of that new day, especially out in the west.

Cara: Congratulations to our friends who got the law passed, and may the force be with you as you fight this next challenge, which I’m sure was expected. Gerard, what do you think about this victory in Montana and this little bump in the road that they’re facing?

[00:17:15] GR: So, first of all, congratulations to all the families who supported this initiative. Glad to have Montana as part of the charter school nation. Uh, it’s been a long time coming, but we are closing the gap, getting to 50 states. This is really for the listeners, just to put in context how old and tired. The argument is and how constitutionally unsound, politically unsound, maybe well rhetorically, but politically speaking, when the question about the public nature of charter schools have been raised, stay after state in the majority of the cases, guess what? The Supreme Court of the state or a court in the state, but often Supreme Court state in the [00:18:00] state said it’s constitutional. And the reason I bring this up is because California was the second state in the nation behind Minnesota to pass a charter law in the early 1990s. In 1990 and early 1990s, people sued because they said charter schools aren’t public.

[00:18:16] GR: In 1997, the court came back and said, in fact, charter schools are public. It was challenged in Colorado. The court said 1999, they are public challenged in your state of Michigan. And in 1997, the court said, it’s actually public in New Jersey, a place where I spent time in 1999. They said it was constitutional in 2006, Ohio. The court said it was constitutional, but sometimes it wasn’t solely the court because in places like Georgia, which created a state charter school commission to approve charter schools statewide. I was fortunate to be appointed to that charter school commission our state Supreme Court at that time. Georgia abolished it. In 2011. And so, they said, you know what? Let’s put this issue before the voters and the Georgia voters approved an amendment to the state’s constitution that would allow the state commission to approve charter schools, which is a different way of talking about its publicness because in all the states that I mentioned, the issue was these, our public schools are taking money, da, da, da. So, Montana. Just take a look at what other states have done. Walk the lane on this. There’ll be ways to make this work, but I’m glad that they’re joining the conversation because for me, it’s never been about anti-public school as much as it’s been. Pro opportunity in ways that we can provide for families. So those are the things that I think.

[00:19:38] Cara: One hundred percent. And we are working for public schools just as hard as we are working for every family to have access to whatever school they want. Especially publicly funded schools of their choice. Gerard. We’ve got a wonderful guest waiting for us, so we better get moving.

[00:19:54] Cara: We’re going too be speaking with Eric Rassbach. He is the Vice President and Senior Council of the Becket Fund for Religious Liberty. Probably he’s thinking about these issues as well. We will be back with him right after this.

[00:20:24] Cara: Learning Curve listeners, please help me welcome Eric Rossbach. He is the Vice President and Senior counsel at the Becket Fund for Religious Liberty, where he has served since 2003. He has led or been part of Becket litigation teams in each of Becket’s path-breaking victories at the United States Supreme Court, including Hossana versus Tabor, Hobby Lobby, Holt v Hobbes, Zubik v. Verel Agudath, Israel of America v. Cuomo and Fulton v. Philadelphia in 2020, Eric argued Our Lady of Guadalupe School versus Morrisey Barrow to the Supreme Court, garnering a seven [00:21:00] to two win for his Catholic school clients. Eric has also briefed and argued cases in federal appeals courts and state supreme courts across the nation.

He frequently comments on church state issues in The New York Times, the Washington Post, the Wall Street Journal, and of course, other major press outlets. Eric has published legal scholarship in the Harvard Law Review Forum, the Tennessee Law Review, the Illinois Law Review, the Cato Supreme Court Review, and other legal journals. He’s also served as a law clerk to the United States District Court Judge Lee Rosenthal in Houston, Texas. Eric graduated from Haverford College with a degree in comparative literature, is a member of Fitz William College, university of Cambridge, and is a graduate of Harvard Law School. Eric Rossbach, thank you so much for joining us on the Learning Curve today.

Eric Rassbach: Thanks for having me on, Cara.

[00:21:45] Cara: Well, so there is a lot in your bio that we could ask you about. We could probably spend an hour just on one of these cases, which Jordan and I might be inclined to do, but I wanna ask you sort of a general question that is so much in the American dialogue around our courts and our Constitution these days, and that is this, this disagreement, some would call it a battle between those who view the Constitution as a living document and those who argue for original intent or a very textual reading of American constitutionalism. Can you talk about these two different philosophies and like how have they impacted not just debates around the court rulings that you’ve worked on with specific regard to religious liberty, but how do they impact our view of the courts, of our system?

[00:22:38] Eric: I think it’s a great question. It really has been a central jurisprudential battle that has gone on, but I think it’s sort of in its waning days. And so, the way to think about it’s, there’s sort of two sides. One is the US Constitution is sort of a living document. It changes with the times, it changes with mores, whatever happens to be in fashion politically at that particular point in time. And it sort of adjusts itself via judges. So, the judges get to decide, and particularly Supreme Court justices get to decide, how the constitution’s sense should be updated to comply with or conform to modern understandings. The other side of it, which says this is a kind of a social contract, it’s a deal that we have between Americans and that, therefore, you have to look at what did people mean when that document went into force and what does the text really say? And what did they really mean when they said things like an establishment of religion? And so that really is, has been a major conflict, but I would say it’s in its waning days.

[00:23:53] Eric: And the reason I would say that is because really the side of history has won that debate. So, Justice Scalia, who has passed away was really the major proponent of moving towards the historical understanding of the Constitution. And, you know, it’s associated with this legal theory called originalism. But really, if you think about it more broadly, history is what, it’s what it’s about. What is the history and text of the Constitution mean for us today? And he said gives judges too much power to let them do the updating that right really belongs to the people who instituted the Constitution in the first place.

[00:24:32] Eric: But you can even see with Justice Kagan made a really remarkable statement. She is, you know, generally considered to be on the more left-leaning side of the court, but she said, we are all originalists now. And what that means in her view is that everyone is going to focus on original meaning of the Constitution. Everyone’s going to be looking at history. So, I think that those are. Really there was this battle, but there’s not as many people now arguing for that living Constitution model as maybe 20 years ago or even 10 years ago. And I think That has a lot of effect, because what it means is the court is really focusing on history across the board, particularly when it comes to Constitutional issues.

[00:25:15] Cara: So, you don’t foresee a swing if probably many, many, many years from now we have a differently formulated court. Meaning could Justice Kagan have been referring to the dominant thrust of the court at this point in history? Will the pendulum swing eventually?

[00:25:30] Eric: One can never predict the future with great ability. But I do think that the court really has committed to this idea of history and even decisions by many of the justices who are considered really on all sides of the court, right? All sides of the court. Traditionally, originalism is associated with the more right-leaning side of the court, but really all of the court pays attention to history and so you can see opinions by both Justice Thomas or Justice Sotomayor, that are invoking history to make the point and reach the conclusion that the court is reaching. So, it’s really, I really think it is going to be a durable change.

[00:26:11] Cara: That’s fascinating. I want to switch gears a little bit and ask you about a theme that is near and dear to Gerard and to me, something that we probably talk about too much for some of our listeners, but it really drives so much of our work and then has to do, I’ve got a couple questions for you around school choice litigation and you’ve got great experience here.

[00:26:30] Cara: But I want to start with something that I know certainly puzzles me and that is that most people have absolutely no problem with government, whether it’s state, government or federal government. Supporting the education of citizens with publicly funded scholarships and loans, even if it doesn’t have to be, I live here in Massachusetts, right? You don’t have to take that federal support or that state support to the University of Massachusetts. You could just as easily take it to the Jesuit College. To Boston College, right down the street from me. And yet when it comes to K to 12 schooling the number one argument I think you often hear from people who do not believe that we should use government funds to provide parents with choice.

[00:27:14] Cara: They’ll say this is an issue of the separation of church and state, which I would say is probably a misreading of what we would term as the issue of the separation of church and state. But can you talk a little bit about how you view. how is it that we as an educated citizenry can sort of hold these two things to be true at once? That government support for religious institutions in higher education is just fine, but that no, no, no when it comes to K-12?

[00:27:38] Eric: I think it’s a great question, and ultimately, it’s related to the last question you, you asked, which is about, history. I think that there’s been a history, particularly coming from the United States Supreme Court of trying to use the K through 12 system to more or less form people in a, a particular way of thinking. And this goes all the way back to the first half of the 19th century when in response to large scale immigration from Catholic countries. There was an effort to sort of Americanize those students often directed with, you know, pretty strong vitriol against Irish Catholic immigrants in particular.

[00:28:20] Eric: And the idea was we need to program ’em, program these students before they grow up so that we can, get them to be real Americans, which also meant not being Catholic at that time. And so, this sort of standardization process or standardization of, of children was really kind of built into the K through 12 system from the beginning, whereas universities could be linked to a sort of longer standing tradition coming out of Europe, going all the way back to the foundation of, you know, the universities in Italy and the Renaissance and the idea of free inquiry, freedom to decide what one believes about things was there from the beginning. the public schools were really from the very beginning designed around this kind of standardization process and so, that, I think is the tradition that then the Supreme US Supreme Court drew on in deciding some of these establishment clause cases, these church state separation cases.

[00:29:20] Eric: I don’t think that that was an accurate understanding of what the founders meant. When they adopted the Establishment Clause, and now the U.S. Supreme Court in the last couple of years has made very clear that that is not the way to think about these things. And that really there isn’t a bar.

And if anything, the, First Amendment to the United States Constitution says that religious schools can’t be excluded from public funding streams that are generally available, to lots of private entities.

[00:29:52] Cara: So let’s take that because there’s been a lot of litigation in recent years that clarifies that. So getting rid of Blaine Amendments, [00:30:00] Espinoza v Montana Department of Revenue, and then more recently, Carson v Makin saying that, you know, if you’re gonna have a program that publicly funds schools, you can’t borrow an institution just because it is faith-based.

So, Let’s pretend for just a moment that everybody has put that argument to the side. I don’t think everybody has, but it seems that it’s an increasingly ineffective argument to make. I think during the pandemic, folks thought, oh, okay, there’s a school choice explosion happening because we’re in the midst of a pandemic, but the momentum not only seems to have continued with school choice, but more and more the new choice programs that we’re seeing are what we might call universal in nature, or leaning toward universal. Meaning they’re no longer means tested, they’re no longer only for special groups of students.

[00:30:46] Cara: And it’s a separate show to talk about in implementation, how that really works. But I’m wondering about, what are the arguments left? Against religious school choice and what do you see are the pieces of litigation we’re most likely to see going forward when it comes to testing this assumption that faith-based schools can be part of this broader school choice landscape?

[00:31:10] Eric: as you mentioned, the Supreme Court has really instituted a, a sea change in this area. Not just with respect to the Establishment Clause, but also with respect to the Free Exercise Clause, which protects the free exercise of religion no matter what religion. And there’s a string of three cases starting at the Trinity Lutheran case, and then the Espinoza case that you mentioned.

[00:31:32] Eric: And then finally, very recently, the Carson against Makin case out of Maine, where they said that you, you can’t exclude a religious body. So, this includes schools and these cases were about schools. But it actually goes a little more broadly than that, but whatever the religious institution, it’s applying for a generally available public benefit, you can’t exclude them from that unless, you know, you meet an extremely high standard, you have to have an extremely good reason to exclude them. And most of the time they’re not going to have that reason. And so that’s now been made very clear as a legal matter at the highest levels but. There is a sort of idea that that resistance must be made against this legal standard.

[00:32:21] Eric: And Maine in particular has announced that it is going to defy the will of the United States Supreme Court by attempting to exclude religious schools. Again, the way they’ve done it is by putting in these sort of so they lost the case at the United States Supreme Court. They put in some poison pills where they said, you can get money, but you have to allow all kinds of religious content in your school. So, if you’re, if you’re a Catholic school, you also have to allow Baptists ceremonies and Baptist activity in your school where you have to allow Hindu activity in your school if any student wants that, if you’re going to receive public funding. That’s sort of a poison pill because of course the whole point of the Catholic school is to inculcate the Catholic religion. But the same would be true of the Baptist school not having to do Catholic religious teaching because they, they disagreed with that. So that’s one area where I think you’re going to see some pushback against this new understanding of the Constitution. Which is that they will say, ‘Oh, you can’t have religious content, or you have to treat all religions equally, even if you yourself are a religious institution.’ That’s one thing. I’d say the other area where you’re going to see it is in an, an idea of non-discrimination. That is, you can’t prefer your own particular religious group in terms of admissions or in terms of who you hire if you’re going to participate in the public benefits. So, if you get tuition assistance or scholarships, you are going to agree not to discriminate as defined by whatever state it is. And that of course would be a major problem.

[00:34:03] Eric: So, if you’re an Orthodox Jewish school, you’re going to want to admit Orthodox Jews to that school. That is the idea of the school, is to provide a Jewish education to Jewish kids and to then say, well, you know, if you’re going to receive this benefit, you have to throw that overboard that undermines the entire idea of the school and kind of commandeers it kind of commandeers the school. So, I think that’s where you’re going to see, this sort of resistance. I think some of it will also be inertia that is a lot of school administrators just have in their heads that separation of church and state means elimination of the church, or, no intersection with religion at all, which is now the Supreme Court’s made very clear that’s not true, but the sort of folk meaning of the Constitution that’s incorrect is going to continue for a while because that’s how people were trained for 50 years.

[00:34:58] GR: In 2020, in fact, September 10, 2020, Cara and I had the pleasure of interviewing Jason Bedrick, Director of Policy for Ed Choice and Jay Green. At the time, he was a professor at the University of Arkansas. Today he’s at Heritage and it was for their co-edited book, which they also added uh, Matthew H. Less called Religious Liberty and Education, A Case Study of Yeshivas v. New York. And I mentioned that because a number of our listeners. Identified that this is one of the few times they had an opportunity to learn about, Jewish schools and the role of religious liberty. And so that same theme comes to mind when I think about Lofton v. California Department of Education. They are a group of parents want to send their children to Orthodox Jewish schools but are prevented from doing so because guess what, California, my former home state, prohibits federal and state special education funding to be used at religious, private schools, although they allow those schools to be used at secular private schools. Could you discuss with us the details of the case and why you guys decided to get involved with it?

[00:36:03] Eric: Absolutely. So, you stated exactly what the case is about. We’re representing two Orthodox Jewish schools as well as three different Orthodox Jewish families. in partnership with Orthodox Union, which is, you know, one of the main umbrella groups for Orthodox Jews in this country, and we brought a case in Los Angeles Federal District Court saying that you just can’t exclude these kids from the disability benefits that they are entitled to because they want to use them at an Orthodox Jewish school in accordance with their very clear religious beliefs. And it’s really a problem for Orthodox kids because, you know, Orthodox Judaism is a high-obligation religion.

[00:36:46] Eric: It’s a religion that, makes a lot of demands upon its adherence, and those demands occur during the school day. You know, just take something as simple as keeping kosher. It’s very hard to keep kosher actually a public school. So, if the price of getting help with your disability, be it, you know, the child is blind, or the child has a cognitive disability, it’s extremely hard to maintain, keeping kosher or attending to prayers and things like that throughout the school day if you’re at a garden-variety Los Angeles Unified School district, public school. And so, brought this lawsuit to say, look, you, you’re excluding them from this, program. It’s, it’s unjust. And there’s no reason you have to do it other than California state law. And you know, the specific issue is that the California Education Code says that you can spend these disability benefit dollars that come from the federal government ultimately and at non-public schools, but they have to be non-public, non-sectarian schools. And my guess is that the reason that ended up in the California Education Code was because of [00:38:00] California’s Blaine Amendment, which I’m guessing your listeners are probably familiar with the concept of Blaine amendments, but our guess is that that’s how that ended up in the California Education Code several decades ago. And it really is sort of the dead hand of Blaine now affecting these Orthodox Jewish kids in LA. So, I think that’s the issue behind the lawsuit, and it’s really, it’s really a huge issue.

[00:38:25] GR: And what’s so interesting about this is we’re talking about students who have special education needs, and we know at the federal level, we have the Individual with Disabilities Act, which basically says we should ensure that all children with disabilities in American can receive a free and appropriate public education.

[00:38:42] GR: But in this case, we’re not seeing that. Move forward. In fact, pioneer published two research papers about IDEA and religious schools, and we’ll of course have that posted to our account. So, could you talk to us about how California, you’re talking about the state law and the regulations and bureaucracy, but how can they stand behind this and what role is the US Department of Education and the state DOE doing to try to make this work or not make this work?

[00:39:11] Eric: Well, so far, at least the United States government is not involved at all. the California Department of Education in Los Angeles Unified have they’re seeking to dismiss the lawsuit. They say, you know, there’s not a problem here. It doesn’t violate the law. a lot of the things they say are based off of.

[00:39:33] Eric: What I would call much older understandings of the Constitution that are really completely outmoded. After the Trinity Lutheran Espinoza Carson line of cases came to be. Even before then, I think it would’ve been a little bit outmoded. So we’ll have to see what the court does with it. we are gonna have a hearing in July.

[00:39:52] Eric: We’ve moved for a preliminary injunction in the case, and, saying like, look, this is an open and shut case Under these three cases, you [00:40:00] cannot do what you’re doing and you need to stop it. So we’ll, we’ll find out pretty soon whether the court agrees with us or not. And of course, either way I wouldn’t be too surprised if there were appeals in the case as well.

[00:40:11] GR: If memory serves me correctly, and I’m thinking about Catholic schools now, before I go to the next question. Catholic Schools in 2021 sued LA Unified for gutting some of the funding, Title I funding, they had access to. And again, I mentioned this in part because I know in Virginia our public schools receive federal dollars, and yet in California we’re making a distinction that I special education money versus, you know, Title I or Title II for teachers, I guess Title II for teachers and Title I for students. Youu mentioned the Orthodox Union and uh, it’s a country’s largest umbrella organization. Represented, I guess approximately a thousand congregations as well as more than 400 Jewish non-public K-12 schools. Is this a rallying point for various religious groups who are not Jewish to be aware of as relates to either growing legal challenges they’re facing, or is this just the next step that religious schools in general should take a look at because of the way that we’re parsing the word special ed versus federal versus, choice.

[00:41:21] Eric: First of all, I think it ought to be a rallying cry for a lot of different religious organizations. That is people of all different faiths are going to be affected by the outcome of this particular case or other cases like it. the Becket Fund also has a lawsuit in Maine. You know, I mentioned that Maine was sort of doubling down on its unconstitutional position. We brought a case called St. Dominic’s Academy on behalf of Catholic school in Maine against Maine’s attempt to double down on its illegal position. So, unfortunately, I think we’re going to have to see a lot of these cases come up because I don’t think that the current leadership of the public school system is sort of going to willingly go along with the change.

[00:42:09] Eric: So, the change has been announced by the United States Supreme Court. It’s said that we have to move to a non-discrimination approach towards religious people in religious schools. You can’t just exclude them from programs because they’re religious or because they have religious content or because they follow their religious beliefs in how they run their schools. Since the court has said that, I still think that there’s, like, like I was mentioning earlier, you’re going to see some resistance and so that means that some of these lawsuits are going to have to happen until essentially the message gets across that the, world has changed a little bit and you, you’re going to have to accommodate yourself to that, but I don’t think it’s just going to happen.

[00:42:49] Eric: You know, automatically, you know, people point to a court decision and say, oh, you know, time to change your, entire way of approaching these questions. They just aren’t going to do it in some places. And so that’s why it’s important for people to support and push for these changes, including via lawsuits.

[00:43:08] Cara: Wow. Well, Eric Rassbach, I think we’ve covered a ton of ground in very short time. And Gerard, I thank you so much for that. We thank you for your clarity and for shedding some light on some of these issues that we’ve talked about on The Learning Curve, some of them before, but certainly never with this angle. And we really appreciate your expertise. So, thanks for spending time with us today.

[00:43:32] Eric: Well, thanks for having me on and, thanks for having a podcast about these issues. They’re so crucial to the way that our, our country even exists. And really, if our society’s going to continue, what you’re pushing for needs to happen. So, yeah.

[00:43:48] Cara: Well, thank you. As long as there are guests like you, there will be a podcast like this from Pioneer Institute. So. Wonderful. Well, I’m sure we will talk again in the future. Thanks again and have a wonderful day.

[00:44:01] Eric: Okay, you too. Take care. You too.

[00:44:29] GR: And my tweet of the week comes from the National Constitution Center, June 19th, and it says, Word of the day. Emancipation Proclamation finally reaches enslaved people in Galveston, Texas on June 19th, 1865. A rare printing signed by President Lincoln is on display in the Civil War in Reconstruction era at the national Constitution Center for a limited time.So those of you in Philadelphia or near Philadelphia, Go and see this. I was celebrated Juneteenth with my family. It’s something that we’ve known about for decades long before we came a national holiday, and it’s just one slice of time to identify just how long the words of freedom have to travel before everyone actually gets a chance to take a bite to the American pie.

[00:45:19] Cara: So, really amazing to think about. Gerard, I had to say real quick, I was explaining to my children yesterday on Juneteenth, I was explaining to my children what Juneteenth is all about and why it recently became a national holiday, and they were having such a hard time wrapping their mind around a world in which word didn’t get out immediately.

You know, as think about that, the long struggle and how much longer it would become. So happy that we are finally recognizing this together as one people. Some have been recognizing it for decades and decades. So, thank you for that tweet. I get to plug next week’s guests, Gerard, as I do every single time we end the show together and next week’s guests are going to be drum roll Gerard Robinson and Cara. drum, drum roll.

[00:46:07] Cara: Drum roll please. So, we’ll be here listeners. To close out our time on The Learning Curve, our joyful time on The Learning Curve, a time that’s, allowed us, I think, to become much better friends. We knew each other before this. Yes, but boy, we didn’t get to spend so much time together and I have appreciated every moment looking forward to some coffee talk, Gerard. Yes. and I hope our listeners are too. So, until then, tootles. And we’ll be back together very soon and maybe, maybe they’ll even let us come back to The Learning Curve every now and again as like, as guest host or something like that. So, until next time, Gerard, see you very soon.

[00:46:46] GR: Take care, my friend.


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