Columbia Law’s Philip Hamburger on Church, State, & School Choice

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This week on The Learning Curve, cohost Cara Candal and guest cohost Michael Bindas, senior attorney with the Institute for Justice, speak with noted constitutional law professor Philip Hamburger of Columbia Law School. They discuss the legal basis for private and religious school choice, and how American constitutionalism supports parental choice in education. Prof. Hamburger explores the implications of recent landmark U.S. Supreme Court rulings in Espinoza v. Montana Department of Revenue and Carson v. Makin for the future of private and religious school litigation in America. Prof. Hamburger closes with a reading from his book Purchasing Submission: Conditions, Power, and Freedom.

Stories of the Week: Cara talked about an opinion piece in The Wall Street Journal, “AI’s Education Revolution,” about Khan Academy’s use of ChatGPT in one-on-one academic instruction. Michael discussed a story on the website of The Becket Fund for Religious Liberty about Jewish parents asking a federal court to halt a California law that excludes religious parents and schools from using special education funding to serve children with disabilities.

Philip Hamburger is Maurice & Hilda Friedman Professor of Law at Columbia Law School. Professor Hamburger’s contributions are unrivaled by any U.S. legal scholar in driving the national constitutional conversations on the First Amendment, the separation of church and state, and on administrative power. The many celebrated legal books he’s authored include Purchasing Submission: Conditions, Power, and Freedom (2021); Is Administrative Law Unlawful? (2014); Law and Judicial Duty (2008); and Separation of Church and State (2002). Hamburger established the Law School’s Galileo Center, which is devoted to protecting freedom of speech and inquiry. He is the founder and CEO of the New Civil Liberties Alliance, an independent, nonprofit civil rights organization based in Washington, D.C. Before coming to Columbia, he was the John P. Wilson Professor at the University of Chicago Law School, and has also taught at George Washington University Law School, Northwestern Law School, University of Virginia Law School, and the University of Connecticut Law School. He received his bachelor’s degree from Princeton University and J.D. from Yale Law School.

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The Learning Curve Transcript – Philip Hamburger May 24, 2023

[00:00:00] Cara: Hello Learning Curve listeners, this is Cara Candal coming to you as my friend. Gerard always tells us where he’s coming to us from. I am coming to you today from a very sunny, very beautiful Newton, Massachusetts, right outside Boston, and I am so pleased to be joined by somebody whose work I have appreciated so much, especially in the last few years.

[00:00:51] Cara: We have with us guest cohost Michael Bindas, who is the senior attorney at the Institute for Justice, and he leads their ed choice team. And if you are a person who watches these things, you will know that he was also the lead litigator in the Carson v. Makin case that went to the Supreme Court and was a huge win for Maine families. Michael, welcome to The Learning Curve.

[00:01:13] Michael: Hey, Cara, thank you for having me. And I am likewise in a sunny spot. It’s an unusually sunny day in Seattle today for this time of year. So, enjoying the weather. Yeah. Yeah. And looking forward to hopefully doing a decent job filling in for some big shoes for Gerard. I mean, I’m a little intimidated.

[00:01:33] Cara: So, here’s the thing about Gerard. We can talk shop since he’s not here. You know, not only does he have big shoes he has a big voice. So, I don’t know if they’ve told you, but, you know, Gerard sings a lot, so we’re expecting you to sing. Like his favorite, he liked John Denver, which I’m always sort of confused by, but you know, I can do a little Rocky Mountain High.

[00:01:50] Cara: I can do that. That’s, that’s his fve. That’s an also frozen, so

[00:01:55] Michael: like, oh gosh, square back. It took me like five years to get those songs outta my head. I’m not gonna go back.

[00:02:00] Cara: Right, nobody needs that earworm. Not, not again. Not again. The only, the only one that comes close was the Bruno song, which I’ve also tried to forget. Oh, well we’re very excited to have you was just saying before we started recording that I feel like I talked to you a lot sort of in the, thick of the pandemic, when. Just so much was happening around school choice. And so, before we get into the, the work that is in front of us, I don’t wanna know, I mean, since we’ve had you on, and certainly since I was calling you all the time for advice for my day job during the pandemic a lot has changed in the landscape of school choice in our country. So we’ve got universal programs, we’ve got just new programs, period. Like what are you thinking? How are you feeling about all this?

[00:02:47] Michael: It’s an incredible time to be kind of doing this work. I mean, you know, I thought 2021 was a banner year, and it certainly was when you know, we had I think like 18 newer expanded programs. But then this year, you know, I don’t know that the numbers are quite that high, but the scope of the programs that are being adopted, the universal programs in Arkansas, Iowa, Utah, the expansion to universal in Florida. I mean, it’s just incredible to see the interest or, not interest, demand that parents are having for educational alternatives.

And it’s so heartening to see legislatures responding almost to the point where it looks like states are trying to outdo each other in maximizing parental freedom. And it, it’s just it’s a wonderful sight to seem, whether it’s a result of the pandemic and, you know, the frustrations parents had with the public schools, then perhaps partly result of the Carson and Espinoza decisions and the lifting of some of the legal clouds that,hung over school choice for a while.

Whatever’s causing it, it’s wonderful and I am so excited to see, where we’ll another couple of years. It’s been amazing growth these last few years and, it’s just like I said, a great time to be doing this kind of work.

[00:04:01] Cara: Yeah, I mean, it’s fascinating and I think you and your team really deserve a lot of credit because—I love the term you used, the legal cloud— because we know that so much of what was going on in states that were preventing these programs from being in place wasn’t very legal, wasn’t necessarily constitutional, but I think that it’s just now legislators feel empowered to do the thing that they thought was probably gonna get struck down in the long run, and now they can do it with that much more confidence.

I’m always really interested I’m looking now a lot at implementation and I would like to give a shout out to places like Florida and Arkansas that I think, or going universal, but in this really like, measured way so they can be sure that the access piece is there for the families, quite frankly, that these programs were designed for in the first place.

As we open them up to everybody, we want to make sure that those who have the least access get the most. But what you’re seeing is some of these programs with really tight implementation deadlines. And I think that’s usually because people are like, oh, we’re gonna get sued, so we better get it off the ground really [00:05:00] quickly.

And I think maybe we’ll get to a place where you and your team are not put out of work, but, you know, taking on different cases. Because I think more and more it’s clear that That if we litigate these cases, those who don’t want school choice are gonna be on the losing end for the most part. So cheers to you and your team for that.

[00:05:18] Michael: Well, well thank you. If, I were put out of work for that reason, that there were no more legal attacks on school choice program, I’d be happy to, you know, try to find another gig somewhere else.

[00:05:28] Cara: Yeah, right. We’ll find you on a desert island somewhere. Basking in the sun, although Seattle is beautiful in the summertime, I have to say I used to work for OSPI as a consultant, so many years ago that I’m not gonna repeat the number, but anyway, actually, I’ve got a story of the week that I think really relates well to this discussion around school choice. But the first question, Michael, have you ever used Khan Academy?

[00:05:52] Michael: I have not, no. I, yeah, I need to step into the nineties, I think. I, I have, I have not used it nor have my kids. So, I look forward I know what it is, but you know what it is.

[00:06:05] Cara: Have, have you used chatGPT yet? If you haven’t used Khan Academy, I’m guessing no. Okay. So, your homework after The Learning Curve is to go home and I want you to put your own name into ChatGPT and see what comes up. Oh gosh. I think I might have said it on the show before that when I somebody did it for me, I did not do myself, but put my name in and it was very interesting. I would say 50% accurate biographical information. I did not work for Bobby Jindal. I just wanna put that out there. So, but anyway, so my story of the week is about Sal Khan’s Khan Academy’s sort of new iteration called Kahnmigo. And I can say my kids have used Khan Academy. Actually, it was the pandemic that turned my daughter to Khan Academy because she actually is the kind of kid that says, I’ve got a lot of time on my hands. Maybe I’ll do more math. So, she turned to it as a supplement. And it was great. She, you know, I haven’t used it for my own purposes, but she really loved it and learned a lot and I actually. I think Khan Academy helped her, become more interested in math, actually made her want to do more.

[00:07:10] Cara: So, I appreciate it for that. But this new venture is going to, I always get a little frightened when we talk about people leveraging AI and ChatGPT, because it we don’t know what’s gonna come of it, but I think this will probably be a tool for good. What Khan Academy is doing is they’re basically they’re creating their personalized lessons and now you can interact with it because the AI will do things like, answer random questions that you have, but because it knows the context of what you’re learning or what you’re studying, those questions can be iterative.

[00:07:45] Cara: They can, you can answer you just like a tutor would. I’m learning this, of course, I should say from the Wall Street Journal, this is a piece by Andy Kessler from May 21, so they give this example of like, you could be doing a lesson about the Great Gatsby and you could stop, just sort of pause and ask your computer what’s the significant of the green light and the Great Gatsby.

As a former English literature person, I feel terrible that I don’t have that right at the top of my brain, but that the AI will answer you and the AI can also interrupt you and ask you to get back on task, all like you would be interacting with a human. And I mean, this is just fascinating in the context of breaking down barriers, right?

Because right now it does cost a little bit of money because as it says in this article, ChatGPT is not cheap. So, it costs a little bit of money. Not an inaccessible amount of money necessarily. I think they’re trying to get it down to $10 a month, but hopefully it would be free. And these are donations anyway. But this could be a real game changer, especially as we talk about personalized learning and how families are taking advantage of things like micro grants and ESAs for personalized learning. Well, this could be a tool. Probably a free tool right at [00:09:00] everybody’s fingertips, and it’s global. I mean, that to me is just K Icon Academy, I think is, bar setting and just so very cool.

[00:09:08] Cara: But if we can leverage AI for the higher good instead of the frightening. Nefarious thing that it could be.

[00:09:15] Michael: I was just gonna say, I’m on one hand amazed, and on the other hand, just my Luddite itself a little frightened. And going back to your Gatsby reference, it can tell you the significance of the green light, but is it also kind of the TJ Eckleburg, right, of Gatsby? If you remember that? Yeah. It is fascinating and, and you’ve piqued my interest. I actually need to familiarize myself with some of these new technologies that are out there because, like I said, I’m pretty old school and that doesn’t always serve you well when they’re these amazing new tools that you could take advantage of for yourself or for your children.

[00:09:51] Cara: Yeah. Well, I mean, and speaking of children, I think that the thing I’ve convinced myself is like, this stuff is here. It’s coming. I’ve been an avid avoider of social media for as long as I can remember, and I now have a teenager who’s not yet on social media, but it will happen at some point and, you know, to be able to help them make good decisions. I have to say, I do have some confidence that Khan Academy having delivered such a superior product for the past, what, more than a decade. There’s gotta be some good here. So, I am cautiously optimistic, Michael and I just, I think, wow. I don’t know. I’m eager to try it, but anyway that’s enough of me talking. What’s on your mind? What have you brought to The Learning Curve this week?

[00:10:29] Michael: I also have a story of the week, and this comes from the Becket Fund. They issued a press release yesterday uh, press release titled Jewish Parents in Schools Ask Los Angeles Federal Court to Protect Children with Disabilities. There was a piece on it in the Washington Examiner today as well. And it concerns a case that Becket filed for those who don’t know Becket, it’s, a premier religious liberty organization, a public interest law firm. And they filed this case, Loffman v. California Department of Education, back in March. There have been some developments in the case that I’ll get to here. But first of all, give a little background about what the case involves. So, it concerns the individuals with Disabilities Education Act or the IDEA, and I’m guessing a lot of your listeners are familiar with this law.

It’s a federal law that provides funds to the states to, in turn, provide special education services for children with disabilities. So, under the IDEA, local education agency or school district has to provide what’s called a free and appropriate public education to children with disabilities. So, it has to provide those special education services that are going to enable these children with special needs to get an appropriate education. The problem is though sometimes school districts don’t have the capability of providing all the services that children typically with more significant special needs have. And so, they will place those children in private schools that are better equipped to meet children with more significant needs. Under the IDEA itself, there’s really no restriction on the types of private schools where children can be placed. The district simply places the child in the school pays for the tuition.

And the school in turn provides the education that’s going to meet the special needs of that child. But in California the state legislature has written a law that specifically prohibits placement of children in religious schools. And that’s what this case concerns. Beckett on behalf of two Orthodox Jewish schools and three Orthodox Jewish families have challenged this prohibition on placement of children in religious or as the law calls them sectarian schools under this law in order to be certified to receive children to educate children with special needs under the IDEA the school has to be non-sectarian, and these parents and schools have argued that abridges among other things, their rights under the free exercise clause of, of the U.S. Constitution. The two particular schools, and I don’t know if this is the correct pronunciation on, the name and to our Jewish listeners, forgive me if I get them incorrect, but Shalhevet High School and Yavhen Hebrew Academy, want to be able to receive students with disabilities under the IDEA, but because of this California law, they are unable to. And so, they’ve challenged this again under among other things, the Free Exercise Clause, and they have pointed to those recent Supreme Court decisions we just talked about a little while ago Espinoza and Carson, where the Supreme Court held it was unconstitutional to exclude religious schools from school choice programs.

And they’ve said, look, this is just like that. The state is singling out religious schools only and saying they cannot participate. They cannot receive children under the IDEA to provide a free and appropriate public education to them. And it’s interesting because in many respects, this case is a lot like Espinoza and Carson and certainly the briefing in the case cite those cases quite a bit.

And that’s the recent development I wanted to talk about. Just yesterday, Becket Fund filed a motion for a preliminary injunction in the case, which is basically a motion asking the court to prohibit the state from enforcing this religious exclusion during the pendency of the lawsuit. Essentially, they’re saying this, law is so clearly unconstitutional that you should prevent the state from enforcing it while we resolve this case on the merits. So, it’ll be interesting to see how the court handles that. Like I said, very similar to Carson and Espinoza in some respects, but I think there is one potentially important difference, and that is in Carson and Espinoza, you had true school choice programs, right? Montana and Maine had adopted programs that provided funds that parents could use to send their children to the school of their choice, to the private school of their choice, but then singled out religion and said, no religious schools. This case doesn’t involve a school choice program per se.

[00:15:29] Michael: The IDEA is not a school choice program, and the placements that we’re talking about in this case so far as I understand them, are placements by the school district. So, the school district saying, we’re unable to provide an appropriate public education for these children, so we’re gonna place them in a private school.

[00:15:50] Michael: Little bit different from what you had in Espinoza in Carson, where it was the parent who was empowered to make the choice and the extent to which that factual distinction matters is gonna be really interesting to watch. And, you know, presumably will find out whether it matters. The court resolves this preliminary injunction motion in the course of the next few weeks or months, I guess.

[00:16:14] Cara: It’s so interesting, Michael, but I have to say with my parent hat on, one of the things that strikes me so much about the special education process is just the extent to which so often parents are, I’ll use the word—excluded. Yes. From decision making. I mean, you could talk about all of the sort of navigation issues and access issues among other things, but I think that there’s a really important conversation to be had—and obviously I am not a lawyer—around, simply the angle of, you know, it is deemed that a school district cannot serve a child, cannot give them the free and appropriate education to which they’re entitled, why wouldn’t it be a parent’s right to choose the best fit, but we will leave that to you. My money’s on, they’re gonna figure this one out, but unfortunately, we don’t have time to figure out whether or not my money’s any good, Michael, because we, we have to bring in our guest and we are very excited.

Coming up in just a moment, we are gonna be speaking with Philip Hamburger. He is the Maurice and Hilda Friedman professor of law at Columbia Law School, among many other titles and things. So, we’ll be back in just a moment.

[00:17:41] Cara: Welcome back Learning Curve listeners. We are here as promised with Philip Hamburger. He is the Maurice and Hilda Friedman professor of law at Columbia Law School. Professor Hamburger’s contributions are unrivaled by any U.S. legal scholar in driving the national constitutional conversations on the First Amendment, the separation of church state and on administrative power. The many celebrated legal books he’s authored include Purchasing Submission: Conditions, Power, and Freedome, Is Administrative Law Unlawful. That’s a great title. Law and Judicial Duty and Separation of Church and State. Hamburger established the Law School’s Galileo Center, which is devoted to protecting freedom of speech and inquiry. He is the founder and CEO of the News Civil Liberties Alliance, an independent nonprofit civil rights organization based in Washington D.C. Before coming to Columbia, he was the John P. Wilson professor at the University of Chicago Law School — I did go to University of Chicago, not the law school, the University of Virginia Law School and the University of Connecticut Law School. He received his bachelor’s degree from Princeton University and his JD From Yale Law School, not many people can beat that. Professor Phillip Hamburger, welcome to The Learning Curve.

[00:18:54] Phillip: Thank you. Great to be here.

[00:18:55] Cara: Yeah. Well, we are excited to have you and I’ve got a lawyer co-host today too, so I think we’re in a good place.

[00:19:03] Michael:  I know I have relied on your work extensively, professor Hamburger, so I certainly look forward to picking your brain here.

[00:19:10] Cara: Well, I’m gonna start picking your brain. So, you know, I read your bio and we know that you are just one of the most important constitutional minds of our era. So, let’s start by learning a little bit about you. First, how did you become interested in law, but specifically legal issues around religious school choice and especially. What it has to do with the issues that have played K to 12 education in the U.S. for so long.

[00:19:36] Phillip: Well, thank you. I guess I have two answers to your question about school choice. The first is a scholarly answer about it’s so long ago, a quarter of a century ago, unbelievably, I wrote a book called Separation of Church and State, which is really a book about how religious prejudice theologically liberal prejudice against orthodoxy and of course, especially against Catholicism, has shaped so much of our constitutional jurisprudence. And in the course of that book, inevitably one has to deal with the nativists and how they demanded public schools as a way of homogenizing Americans, not only Americanizing foreigners, but also reshaping Americans to become more Protestant, more theologically liberal, less attached to orthodoxies.

And, and that’s very worrisome from a religious point of view. So, I was aware of these dangerous public schools. But the second answer is actually more immediate. So, in I think it was in 2019 the Department of Education, I think here in New York State Began a deliberate assault on the Yeshivas in Brooklyn and neighboring communities.

Yeshivas are Jewish Orthodox schools, and of course, many of them are a particular version of orthodoxy. They’re Hasidic. And in these schools English is not always the primary language. There’s a lot of attention, of course, to religion, religious duties, and the Department of Education disapproved of this.

Now, I think it’s perfectly reasonable to have debates about the values of different styles of education. But they dredged up an old nativist statute from 1895 saying that the schools had to be substantially equivalent to public schools as if that were a good thing, and that they had to teach in English. And both of these raised serious constitutional problems. So that’s how I got engaged. It was, I was interested and they, they forced me to sit up and say, no, that’s wrong.

[00:21:29] Cara: Yeah. I remember very clearly. I remember very clearly that 2019, and I think we felt we’ve had folks on Jason Bedrick to talk about this, that as well. It’s fascinating. Kate said it’s a good reason to get into school choice. I wouldn’t put you know, so you’re, you have no trouble being provocative. You have this great title to a Wall Street Journal, op-ed in 2021. Is the public school system constitutional? Something that wow. Oh, that great dinner table conversation. So, and in it you talk about, you know, the rights of parents to direct the formative education of their children, which by the way, I think is enshrined in like international—it’s escaping me right now, but an international doctrine doesn’t have the force of law, but an international agreement that many other countries, honor that rights of parents. So, can you talk a little bit about what you mean by that being a First Amendment right? How did the framers understand all the Bill of Rights federalism, right, and state constitutions.

[00:22:28] Phillip: Right. I, should begin, by the way, by disclaiming the title. Authors don’t draft their titles at the Wall Street Journal. A more accurate title would be “Is the funding of public school constitutional, I really argument in public schools, right? The government wants to provide education, great, but they go a bit beyond that, so, right. So, there are layers here of constitutional law. For one thing, there’s no federal power of education. We have no constitutional basis for a Department of Education. So, there’s a real problem with federal control over education. That means homogenization. And there’s also no federal power to spend for education is particularly for states. This is long been forgotten by this. Supreme Court, but the general welfare clause bars giving money to states and localities, and the result has been a disaster as we abandoned that clause.

But of course, the most immediate and the last remaining defense is in the First Amendment, both religious liberty and free speech. a free speech angle actually, that I wanted to pursue. Cause it protects all parents, not just religious parents. I think it’s great to defend religious parents, but when needs a larger interest group to protect religious liberty than just religious parents and all parents. However, secular left or right, they may be, have a constitutional right to control the education of their children. And so that’s what I focused on. hope it will prevail. We’ll see.

[00:23:54] Cara: I hope it will prevail too. I wanna ask you, Professor Hamburger, about another article that you wrote in the Texas Law Review where you posed a series of questions and I feel like I explored some of this in my own education and probably didn’t get answers that I wanted. And the first is, is education speech. And if so, what does this mean for the speech rights of parents? Could you talk a little bit about the core arguments of that piece in particular, which relates so much to what you’ve just expounded upon?

[00:24:24] Phillip: Right. So, the key insight is very simply education is speech, isn’t it? Mostly just talk or reading. Some of it involves, chemistry, a little bit of action, but it’s expressive conduct. And so, this is essentially within the scope of the First Amendment and First Amendment doctrine. I’m not the only person to have thought about this. Steven Gillis, has written on this before too, but I want to take it a little bit further and explore the full implications.

And so, I think that’s what I was able to contribute here. Education is speech and that means the first amendment is central. And that with that, once you see it that way, several things become quite obvious. It seems to me for one is government cannot pressure parents to adopt government educational speech and to abandon their own educational speech, right? The government can’t tell parents, thou shall not, teach your mores to your children. And it can’t do that either directly or with conditions on funding, which are of course very coercive here. So. There’s both a compelled government speech and a more direct abridgement of one’s own speech.

Now you might think this is rather, oh, how should I put it, radical, but it actually isn’t. This is foundational. The founders well understood that education would be largely parental choice. We actually have good constitutional doctrine on this. Pierce versus Society of Sisters tells us that government cannot compel one to take government education and all that.

My article would add is you can’t accomplish by other means. What’s prohibited by Pierce, you know, you can’t use money to accomplish what is forbidden to do directly. Now as it happens, there’s another precedent here, which is very relevant. The central 20th-century precedent from the Supreme Court is Brown v. Board of Education, which again, you know, involves public schools.

And Brown versus Board actually is very helpful here. I’d like to read to you from Brown versus Board because this involves State subsidized education and according to Brown key passage in Brown states schooling is an opportunity or benefit, and I quote “and such an opportunity where the state has undertaken to provide it is a right which must be made available to all in equal terms.”

In other words, Brown versus Board is often viewed as an equal protection case, but it’s also a case of unconstitutional conditions. And if that opportunity, public ed uh, of supported education cannot be denied to you on grounds that violate the equal protection clause, it also can’t be denied to on grounds that violate the First Amendment. So, what we have here is a system that’s designed to push you into government speech in place of your own, and that surely violates the First amendment. So that’s the argument.

[00:27:04] Michael: If I can ask a quick follow-up question on that, Professor Hamburger. What do you see as the remedy for that situation then?

[00:27:11] Phillip: Well, exactly. So, one doesn’t want to go into—and by the way, I just a little parenthetical. So, I run a civil rights organization, the new Civil Liberties Alliance, and we litigate against alternative modes of governance, primarily administrative commands, but also unconstitutional conditions. So ,I look forward eventually to litigating this and liberating parents from the grasp of the government. So, what’s the remedy? One would not want to go into court and say, Oh, judge, you tell the legislature how to organize education, that’s a sure loser. But one doesn’t have to do that. I think all one has to do is go into court and I discuss this in the article and then say look, we want a declaratory judgment that this is unconstitutional, and that would throw it to the legislature to figure out the policy choices. A state legislature might choose vouchers, tax credits and a whole host of other possibilities that don’t pressure parents into taking government speech in place of their own. But that’s not something to be litigated. That’s something I think for legislatures.

[00:28:11] Michael: Fascinating. Well, I want get back to a little bit about the founders. And you know, we know they disagreed with each other on quite a number of critical issues. And education was among them. You know, we have on one hand John Adams the principal drafter of the 1780 Massachusetts Constitution, who very expressly discusses public funding for religious instruction.

And on the other hand, we might have someone like Thomas Jefferson who had a much more secular view of, of public education. And what I want to ask is, what do you think school choice supporters need to better grasp or better know about the founder’s views of church and state? And how would that knowledge help inform the arguments whether policy or legal arguments that we’re currently having over school choice in this country?

[00:29:00] Phillip: Right. It’s actually a very interesting history, isn’t it? And the first thing that comes to mind, of course, is not that they agreed or there was consensus, but as you point out, they actually disagreed quite vigorously. Some states had established churches. My own state of Connecticut had one until 1818. Other states had abandoned an establishment relatively early, so, and Virginia, of course, had a marvelous battle. That’s fun to read about in the seven, in the 1780s on this, which Jefferson and Madison both participated very eloquently. So, there’s disagreement about whether or not there should be an establishment, and the establishment wasn’t understood partly in terms of education.

So, the Virginia proposal of Liberal Anglicans in 1784 and 1785 is to have a statute providing support for teachers of Christian religion they thought themselves in the role of teaching. So, is there anything to be drawn from this? For one thing, I’m not sure that one has to confine oneself to the questions about establishment. Because beyond that question, there was agreement about a whole host of other things. It was widely assumed that pre-college education was, which is what we’re talking about here, is for parents to choose. And they could choose to send their kid to an establishment school. But in, most states, they could also choose their own. You know, if you’re a Baptist in Connecticut, you could send them to a Baptist school. Another weren’t that many Baptist schools. It was financial problem. The government was subsidizing one set of schools. In place of another, and that’s very relevant here. They then had an establishment of religion, which included an establishment of teaching.

We now have another establishment, establishment public schools, and they’re not entirely non-religious. They say they’re secular, but what that usually means is theologically liberal. by which I mean with a certain antagonism towards orthodoxy It’s very hard given the history of nativism and anti-Catholicism to separate public schools from ideas about religion. So, I think what we need is a second disestablishment. Disestablishment from public schools. And even if we don’t view them as semi-religious, they certainly establish a government point of view imposed on parents. So, we need to disestablish we need a full movement like the movement in the 1780s for religious disestablishment. We need an educational disestablishment. Now this is often said to be required. You have to have government schools that are secular, exclude religion, but separation of church and state is a false ideal. It’s based on prejudice. And the public school system was of course pursued by nativists precisely to indoctrinate children in one version of religion, theological liberalism. Anti-Catholicism and separation of church and state—that’s not a heritage anyone should be proud of. There’s much that’s good in some public schools, some and bad in in others, but the whole system was designed to homogenize, to Protestantize, and that’s even without the religion. That homogenization, I think is very dangerous. So, there’s a lot in our heritage to make us think we need a second disestablishment.

[00:32:01] Michael: That’s fascinating. And I think it’s good to remind listeners that I think it’s often assumed that the public school system is, it was kind of part and parcel of the founding. And no, it was a later development several decades later. And the goal was not a noble one. So that’s, it’s fascinating to hear you talk about that. Right. Now of course, in the last couple of years 2020, 20 22 we get a pair of. Decisions from the U.S. Supreme Court in Espinoza and Carson. And, generally speaking, we’ve touched on these already. They hold that when government has a school choice program it cannot deny parents the choice of a religious school if that’s what they believe to be best for their children. Would you share your view on those decisions? And specifically, maybe speak to what you see as the long-term constitutional implications for American education and where you see maybe the future litigation and, how you see the law surrounding school choice kind of developing in the wake of Espinoza and Carson.

[00:33:04] Phillip: Right. So, you were involved with these cases, right? Congratulations.

[00:33:07] Michael: I played a role, yeah.

[00:33:09] Phillip: Yes. I think they’re marvelous. They’re certainly heading in the right direction, aren’t they? I, and I think, and there are layers, I think there are layers here to appreciate. So first of all, they cut back on the Blaine Amendments. The Blaine Amendments were anti-Catholic amendments adopted in late 19th century. Which single out institutions that are specifically sectarian or a particular religion not to receive government funding.

And of course, the goal was to deny funding for. Catholic and other orthodox schools, but to allow funding for generically liberal institutions for which cooperated across religious lines. Now there many versions of the Blaine amendments, but they’re all pretty awful. And by the way, James Blaine himself was not prejudiced. He had a Catholic wife and children. And as soon as he realized that amendment would not get him to be the president, he didn’t even bother to turn up for a vote on it. Entirely a corrupt thing, even those personal level.

[00:34:04] Michael: So not a bigot, but an opportunist

[00:34:06] Phillip: Maybe, exactly! Would feel much better, but, you know, um, so that’s the thing. It cuts back on Blaine amendments, which is always worthy goal. Second, these cases clarify that government benefits can’t be denied on grounds of religion. And that’s very wholesome just on its own ground because it’s, it, it’s, these are essentially anti-religious or policies. And that leaves room, of course, for voucher like programs to be available to everybody, not just secular parents, but also religious parents sending their kids to religious schools. but a broader level, I mean, it seems to me that there are two very good things about these cases. One is it clearly reveals that the Supreme Court is getting a more complete vision of the threat to religious liberty. It doesn’t just come from overt constraints. It also comes from denial of benefits.

And that leads to the second point. And this actually relates to some of my own work particularly my recent book, Purchasing Submission. The government no longer controls us simply through laws adopted by Congress. It likes alternative pathways for control, which allows it to do all sorts of hanky panky that’s unlawful and harmful. One of these mechanisms is administrative rules, which we litigate against the new Civil Liberties Alliance, but another one another of these alternative modes of control. Is the purchasing of submission uh, basically conditions on benefits. And I think these cases are getting the Court to think about how money is used to control people in ways that completely undermine both the processes of the Constitution, the limited powers and the limited rights. So, these cases I think are going step by step in a very good direction.

[00:35:50] Michael: That’s good to hear. It’s interesting, too, to hear you talk about kind of the evolution of ways that government controls. I mean, when you’re talking about the landmark decisions from a century ago, Pierce and Meyer, those were direct regulations of religious schools and families.

A kind of direct abridgement on liberty. And you’re right to emphasize this, You know, what we have going on in Espinoza and Carson. Maybe not a direct regulation in the sense, but a conditioning of the availability of otherwise available benefits in a way that still abridges—in those particular cases—the free exercise rights of families.

So, last question for you. Obviously Espinoza and Carson lifted some of the big constitutional questions surrounding school choice. But we also know that the opponents of school choice are not simply going to pack up and go home now. They will continue to fight against these programs in both state houses and courthouses. And I want to draw on your expertise in another area. So obviously you are luminary on, church state issues. As I mentioned before, I don’t know how many times I have cited Separation of Church and State, your book from 2002, in legal briefs including at the Supreme Court, but you’re also an expert on administrative law. I’m wondering if you could offer any insights about ways that administrative law might bear on the questions surrounding school choice, whether in a good way in a negative way. Is there anything to draw from your experience in that world?

[00:37:25] Phillip: Right. I confess I don’t have that much to say that’s good about administrative power.

[00:37:32] Michael: You sound like Justice Gorsuch!

[00:37:34] Phillip: I try. Right. Let’s step back and think about what are the protections for our freedom? And the Constitutional protections for our freedom that we’re familiar with are enumerated powers and then further limitations in enumerated rights. The enumerated powers have been largely eviscerated, I’m sorry to say, by the Supreme Court and the, and the rights aren’t always protected. I sometimes say the Supreme Court is loose with power and tight with rights. But  one of the protections we have, which is of structural, is that before we can be constrained in our freedom, especially in our rights one has to have an act of a legislature, an elected legislature accountable to us, at least as a community.

And one also then has to be found guilty in a court in front of a judge and jury. And those protections, the prior protections in legislative adoption of the statute and subsequent protection in judge and jury have been largely. Abandoned the government escapes it by using administrative power. By using administrative power, they can have an agency decide, which of course is accountable mostly in class lines to fellow members of their, the educated class, but not accountable to us as a people. And when you’re, punished, you go to administrative tribunal, which. Is not a judge, doesn’t involve jury.

So, at the new Civil Liberties Alliance, we litigate against this. We saw this problem in COVID. In COVID, a large amount of rules were adopted administratively, and they’re enforced without, we’d never ever seen a judge and jury. And of course the SEC does this in ways that are, are really very harmful.

And it’s also true when we get to free speech and religious liberty. I think a large number of our problems with religious liberty would be solved. Not all of them, but many would be solved if we didn’t have administrative power ministry powers and antithetical to religious liberty and needs to be resisted.

[00:39:23] Michael: That’s fascinating. I, I think back to the Espinoza decision, and in that case the school choice program that the legislature adopted was neutral toward religion. It allowed parents to select religious and non-religious schools alike. But it was the state agency charged with implementing the program that promulgated the rule, barring parents from exactly religious schools.

[00:39:43] Michael: Well, this has been wonderful, Professor Hamburger. Thank, as I mentioned, I am so in debt to you, for I’ve had the benefit of litigating some of these cases but I have drawn so heavily on your work in doing them. You’ve been an inspiration to me. It’s a, it’s an honor to get to chat with you. So thank you for that. And if you could perhaps close out the show by reading, just something that you think is relevant to the discussion from one of your books, if you could pick something and close it out, we’d love it.

[00:40:17] Phillip: Thank you so much. This is from Purchasing Submission. “Money is power, but not always Constitutional power. Although the federal government can constitutionally make purchases and provide support, it cannot lawfully circumvent the Constitution its freedoms by purchasing submission. Therefore, the old saw that he who pays the piper calls the tune must be qualified. The government cannot call a tune out of harmony with the Constitution. Too often, the problem is understood narrowly as a matter of unconstitutional conditions, those that impose unconstitutional restrictions, especially on rights. From this point of view, the problem with conditions is essentially about the substance of their restrictions, but throughout, however, is much broader for conditions serve as an irregular pathway for power, profound consequences, both of the Constitution structures and its rights.” Thank you

[00:41:07] Michael: Thank you, Professor Hamburger. Thank you so much.

[00:41:10] Cara: And listeners, that was Professor Phillip Hamburger. We are just so delighted that you gave us your time today. Thank you so very much.

[00:41:19] Phillip: Thank you.

[00:41:49] Cara: Wow. After that fascinating interview, well, we have to close out with a good Tweet of the Week, so here we go. This is from the Freedom for Charter School’s Coalition 69 years ago [00:42:00] Today the Supreme Court decided Brown v. Board of Education and declared the separate but equal doctrine unconstitutional. Almost seven decades later, we are still fighting for equity and education. It’s our job to keep pushing for better. More equitable future, Michael. I think that’s straight to the point really of what just been talking about today.

[00:42:22] Michael: Absolutely. Absolutely.

[00:42:24] Cara: Michael, I can’t thank you enough for joining us. I hope even though I think Gerard Robinson is going to be back singing next week, I hope you’ll listen because we’re going to have with us Donald Graham and he’s the chairman of Graham Holdings Company, and formally the publisher of the Washington Post. Should be cool, Michael. Until then, enjoy the Seattle sunshine, which are two words that illiterate. You don’t figure this together often.

[00:42:48] Michael: I’m going to go out and sunshine and sing some John Denver or Frozen in Gerard’s honor.

[00:42:53] Cara: Oh, please do. I think we’ll catch that. Well, we’ll manager. We’ve got ears on the ground. We’ll manage. You take care. It’s been such a pleasure hanging out with you.

[00:43:01] Michael: Thank you, Cara. Likewise. Take care.

Tweet of the Week: