This week on “The Learning Curve,” co-hosts Cara Candal and Gerard Robinson talk with Leslie Hiner, Vice President of Legal Affairs and Director of Legal Defense & Education Center with EdChoice. They discuss the the landmark U.S. Supreme Court (SCOTUS) decision in Brown v. Board of Education, among the most important in the nation’s history, and how Brown’s call for racial access and equity in K-12 education has helped inform the work and advocacy of the school choice movement. They also review important SCOTUS decisions such as Zelman v. Simmons-Harris in 2002 related to school vouchers; and Espinoza v. Montana Department of Revenue in 2020, extending a public scholarship program to religious schools. They then explore the key legal contours of Carson v. Makin, a Maine school tuitioning case that the Supreme Court will decide this year, and its wider implications for school choice in America. Ms. Hiner offers thoughts on the next legal battles, as well as how and where school choice opponents will likely strike back.
Stories of the Week: The American Federation of Teachers and the AAUP are planning to join forces on objectives such as protecting academic freedom, and supporting increased funding for public higher education. A Pew Research Center survey shows that support for school principals has declined among Republicans, likely connected to contentious policy debates around mask mandates and history curricula.
Leslie Hiner, Esq. is Vice President of Legal Affairs, Director of Legal Defense & Education Center at EdChoice, the nation’s leading educational choice organization. Hiner is an attorney with extensive state legislative and executive branch experience. In Indiana, she was the first female chief of staff to the speaker of the house, counsel to the senate president pro tempore, and general counsel/elections deputy to the Secretary of State. A founding board member of one of Indiana’s first charter schools, Leslie served as chairman of the board for the first several years, guiding the school’s growth from about 150 to over 1,000 students. She was also directly involved in developing Indiana’s original charter school law, one of the best in the nation, and Indiana’s voucher law, the largest in the country to date. Leslie is a long-time member of the Federalist Society and a Lugar Series Excellence in Public Service alumna. She’s been cited in numerous national publications, including the Wall Street Journal, New York Times, Chicago Tribune, Washington Times, Forbes, and US News & World Report, among others. She earned her Juris Doctorate from the University of Akron School of Law and her Bachelor of Arts degree from the College of Wooster.
The next episode will air on Weds., March 16th, with Charles Moore, a columnist at The Spectator, former editor of The Daily Telegraph, and the authorized, three-volume biographer of Lady Margaret Thatcher.
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Read a Transcript of This Episode
Please excuse typos.
[00:00:00] GR: Hello listeners. This is Gerard Robinson from beautiful Charlottesville, Virginia. Last week, when I had an opportunity to speak with you, I was in beautiful Chicago. Well today, as you know, I can’t host any really, truly great show unless I have my partner, Kara, Kara.
[00:00:44] Cara: Okay, Gerard, I was telling you offline.
[00:00:46] I feel like I’m a little grumpy today, but I’m doing okay. I’ve got it. The story of the week that I think will match, but you know, as spring Springs, there’s a lot going on in this world. [00:01:00] So a lot to, think about , maybe just a little bit of a heavy, heavy brain, and we’ll be talking about a heady subject today anyway, with one of our good friends from it.
[00:01:10] GR: Absolutely. Well, speaking of grumping and maybe that’s not the right term, but there are times that people find themselves concerned agitated or just sick and tired of being sick and tired. And my story of the week is about two groups. Who are thinking about having a historic murder and it’s the American Federation of teachers and the American association of university professors.
[00:01:33] So many of our listeners know of course that AFT 1.7 million members, second largest. in the country and one of the largest labor union focused organizations in America. But many people may not know that at the unit diversity level we actually have the American association of university professors and they represent their in the interest of their colleagues, roughly 300,000 faculty members across the country.[00:02:00]
[00:02:00] So recently they decided to come together and have a conversation. The AUP council voted unanimously to recommend ratification of the affiliation with AFT at his upcoming June meeting. And if this happens, you’re going to have basically the largest glomeration of K 20 education group in the nation.
[00:02:22] Now this partnership comes together, as they say, in the backdrop of three things. Number one, attack on teachers. Number two, attack on academic freedom. And third anti persistent underfunding of public schools across the board. They also mentioned adjunct professors and the role they played with student debt.
[00:02:40] But those are the three big reasons they say they want to come together. Now through this affiliation, they can work to protect academic freedom and to have a unified voice of faculty slash teachers. As someone who’s had a chance to work in the classroom, someone who’s been an adjunct at the university level I’ve heard these concerns four years [00:03:00] from university faculty who say, well, I’m glad to bring in non tenure track professors or professors who aren’t on any track to become a full time member, to have them as a part of a higher education conversation, because many of them bring in.
[00:03:16] Professional experience, life experience, practical experience to add to the conversation. But over time you find that that is some institutions, nearly a third of a teaching faculty are in fact adjuncts. Some of them are also another category of university graduate students, and that’s beginning to crowd out a number of full-time professors or professors who’ve gone into the profession to have a full-time job.
[00:03:41] And so that’s been a really so. For a long time at the K-12 level, we, you see the major growth in school membership. As our friend, Ben scaffold has noted in his research on the staffing search. The real surge is amongst staff and staff are also. Of [00:04:00] unions in certain states and locales as well.
[00:04:02] And so they said, listen, we feel attack as a profession. And we have people walking in our space and wanting to come together to do something about that. And so this is a really big push, but not only do they want to do this for academic tenure, and to also protect free speech, they also want to do this because they’re To organizations that are part of the new deal for higher education. And it’s not something that we’ve talked about here on the show. But these are two groups who support it. And they believe that for the common good, that critical thinking is under attack and that our society is suffers as a result.
[00:04:36] And so they’ve supported what they would be called the Marshall plan for higher education, and they have four points be a prosperity from the bottom up. Number two, advanced social racial and economic justice. Third strengthen democracy and civil society. Fourth foster knowledge and innovation, and that’s worth mentioning because when we have groups come together, we often do it outside the context of a larger [00:05:00] political agenda or an education agenda, federal or state.
[00:05:03] Well, that’s just one thing to think about, but it’s also worth putting into context that these two groups are coming together. Not only an added historic moment in American history, but their founding also occurred at historic point. So you go back to 1915. When the American association of university professors were founded, guess who was their first president?
[00:05:24] John. At Columbia university and one of professional love joy at Johns Hopkins university was also a founding voice. And they came together for pretty similar reasons. They found that some of their faculty members were being released from universities because of criticisms they’ve made about labor practices about social and economic issues.
[00:05:45] It happened in a number of universities and he said, Hey, we’ve got to come together. Collect. To support our team. And for 1954, you’ve had that take place. Well, guess what? In Chicago, where I was last weekend one of the places [00:06:00] you call home from your graduate work, the American Federation of teachers was founded in 1916.
[00:06:05] Why for similar reasons also to provide a professional pathway. and also to make teaching more professional, but also you have some of their members also attack for criticisms against the socio-economic political order of the day. And so that was 19 15, 16 flash forward to our fast forward.
[00:06:25] 2 20 22. These two organizations are coming together and I think it could possibly happen. We know there was at one point talk of a merger years ago between AFT and NEA. It didn’t happen. But I think the timing is right that this could actually. What are your thoughts?
[00:06:43] Cara: this is interesting.
[00:06:44] I’m like I have thoughts as a practitioner and somebody who has experienced working in a university and experienced prior to being in a union. And then thoughts like the researcher education policy person in me. When I was a research assistant professor at [00:07:00] BU hired right out of my doctoral program.
[00:07:02] I remember sitting in my office and somebody coming by and saying like, so you’re part of the union now. I think it was a UAW. I’m going affiliates. Right? You’re part of the union now. And here are your papers, et cetera. And I remember. I don’t want that because I had just completed all of this research on, you know, I was looking at charter schools in particular and in the impacts of attempts to unionize charter schools, et cetera.
[00:07:23] And I, they were conflated in my brain. And as you know, you’re going to pay your union dues, whether you want to be a member or not. . But then as an adjunct later, having left that more permanent position at the university to go into the kind of work that I do now, but still teaching as an adjunct faculty member.
[00:07:39] You know, I think that one can absolutely understand, especially as you say, how universities are really using a lot of adjuncts these days adjunct work does not pay a whole lot adjuncts professors. A ton of work. They often are not paid for preparation. They are often really great teachers. And oftentimes you’ll find people who work in the university who might [00:08:00] be tenured, professors who really don’t want to teach.
[00:08:02] That’s not their biggest interest. So I think that the practitioner in me understands why unions form and , why practitioners want to form unions. But given your story, the policy person in me thinks, well, what would be the reason. Ramifications of such a union in terms of the consolidated political power here, which is of course the grub.
[00:08:23] And we know that AFT is also already wildly influential. So this is something I’d like to learn more about to see if it happens because the idea of sort of a K to 16 Influence union exerted political influence is interesting to say the least Gerard and not without its ramifications. Probably some good, but , a little bit unsavory as well.
[00:08:47] I would hope that some of the things they cite, which sound like great reasons are really what we think they’re. So I don’t know, me skeptical, but I think you’re right that the time is right for this kind of move. Gerard. I told you at the outset that I [00:09:00] was feeling a little bit grumpy today.
[00:09:02] so my question for you related to my story of the week is how are you feeling? My friend? What’s your mood?
[00:09:08] GR: Yes, I too am feeling grumpy. So I guess this is the learning curve. It’s a grumpy
[00:09:13] Cara: day. Yes. I ask you because my article talks about the fact that I’m maybe what’s the word projecting here.
[00:09:22] That Republicans. are grumpy. So the titles there,
[00:09:27] Cara: Hey, they’re grumpy lately.
[00:09:30] Cara: Not a personal attack. others are grumpy too. No, but the title of this article by John Graham Lynch is Republican’s confidence in K to 12 principles has fallen sharply. During the pandemic, and this is from the pew research center.
[00:09:44] So it’s a poll and another good title for this article might be really, truly like who wants to be a school principal or a school teacher these days. Because boy, it’s not a rosy picture, but the interesting sort of takeaway here is that pre pandemic, , [00:10:00] most people were espousing a pretty good degree of confidence.
[00:10:04] So around half of Republicans and Republican leaning independence, I would say that they have a great deal or fair amount of confidence in K to 12 public school principals to act in the public’s best interest. Now that was a survey in 2021, but nearly as many. 47% are saying that they have not too much or no confidence at all in principles.
[00:10:30] And so this is, these numbers are different than before the pandemic. So you can probably pretty easily pin these numbers as pew starts to do. They say, well, you know, what have we been talking about lately? We have been talking about a ton of stuff in terms of masks mandates. In-person schooling. The kind of curriculum there to being taught in school, we’re seeing a number of states passing.
[00:10:54] Laws that are, going to prescribe what can be taught schools that has an impact [00:11:00] on principals and teachers, but this it’s a growing negativity. And that’s the word that is in this article. And it’s very much specific to Republicans. People who identify as Republicans or moderates who are right leaning.
[00:11:13] And I think that this. fascinating. It also makes me a little bit sad that it’s school principals that are the target of this. We know that we don’t want school teachers to be the target, but this broader societal conversation. Around, what’s happening in our schools that parents may or may not like to my mind instead of pinning it on our school leaders and our school teachers who many of them are bound by a lot of local state regulations.
[00:11:42] Anyway, I think we should be having a greater conversation Gerard about what parents need to know to make them feel better about their schools to make them feel better. School leaders and what kind of insight they need into their school, into what’s going on in the school and to what’s being taught in the school.
[00:11:59] And that’s [00:12:00] not to say that they will always get to exert influence, but that they have a window into, and that’s what the pandemic gave them, right. A window into what’s going on in school. So I found this one very interesting. If not a little bit disheartening, maybe that’s why I’m a little bit grumpy today.
[00:12:16] Because parents. Are just as divided along ideological lines as the rest of us are. And of course, many of us are parents, but it feels again, Gerard, like we’re just in sort of a tough place in this country right now. And boy, oh boy, it can not be fun to be a school leader. And I know you’ve been working with a lot of school leaders talking to a lot of school leaders.
[00:12:36] Do you have any insight here?
[00:12:38] GR: Yeah, it’s been a, you know, them vice-president of education at the advanced studies and culture foundation in Charlottesville. we’re linked to the Institute for advanced studies and culture at the university of Virginia. And one of the projects that I was able to.
[00:12:52] Court with the support from Catherine Bassett, who is a former 2000 teacher of the year for New Jersey [00:13:00] is to bring on over a hundred educators from all 50 states and all Commonwealth, except one to talk about education and in those conversations at a number of principals. And so I I’m with you being a principal is a tough job.
[00:13:13] I’ve said for years, I believe the toughest job. In education has been the superintendent. But I think during the pandemic, it’s really circled down to the school principal because so much of what’s taking place is building base and what’s happening at one building may be radically different than another.
[00:13:29] And so principals have had a tough let’s just for our listeners do a quick overview of. School principal profession for the lab, you know, from 1999 to 2018. And so roughly we have 90,900 principals employed our schools across the country. 68% are elementary school principals, 22% secondary school principals and 9%.
[00:13:54] Our leaders have combined elementary and secondary schools in 19 [00:14:00] 99, 50 6% of the principals were male in 2018, 54% of the principals are women. And so there’s been a shift and who is in the leadership position in terms of race 19 99, 80 2% of the principals were. White in 20 18, 70 8%. So the numbers gone down a bit.
[00:14:24] Where’s the increase coming from. It’s really in Hispanics, they move from 5% to 9% of the population for principals while African-Americans have remained steady during the time at 11% many of them bring to the classroom, teach it experience. Some of them also bring in public and private secretary experience during the pandemic.
[00:14:44] They’ve had two. Take the best that they learn from education schools or graduate schools, they attended to the profession. And they also had to bring in their role as a mom or a dad as an adult caregiver for a sick spouse or [00:15:00] loved one. They’ve also had to bring in the role of being an entrepreneur, picking up and doing things that frankly.
[00:15:05] Our education as educators may not necessarily have appeared before. I would say that even for people who have an MBA, and so there was so much put upon them. Now, the idea that there is such a massive shift in one year between. Republican’s pre pandemic and now may speak more to the just hyper-partisan nature of how we view education today.
[00:15:28] Particularly public schooling. I am sure as I have friends on both sides of the fence, but I know there are a number of Republicans who voted for Democrats at the local level, who decided in the 2020 election to vote for governor young. And when now governor Yuncken the team in part, because of what they saw.
[00:15:48] As just lack of engineers. Preparedness or something from their local public school principal where St. Mary’s down the street, charter school, [00:16:00] down the street, or even the virtual schools, both public and private seem to be working. So I would read that with, a grain of salt. It also makes me concerned because as we have, hyper-partisanship already at the national level, we have elections coming up for Congress.
[00:16:15] That’s another conversation we’ll deal with post election in November. But at the point, we’re starting to focus on school leaders, the leaders who are responsible for teachers who have to also represent their school before the superintendent and the school board, but also to the community. If we think that we’ve lost trust in them.
[00:16:34] And we also realize according to pew, and also according to data from Gallup that Congress , and the presidency are held amongst the lowest Issue of trustworthiness amongst other public servants where there’s police, fire other. This is not
[00:16:51] good. This is not
[00:16:53] Cara: good. I just feel Gerard we’re at a place where we all need.
[00:16:56] One thing that we can agree on, just like puppies, [00:17:00] something we can all get all agree on and boil boy at school leaders and teachers. They’re going through a lot, like you said. Okay, well, we’re going to be speaking to next to somebody who, I don’t know. Every time I talked to her, she seems quite cheerful.
[00:17:14] We have with us, Leslie Hiner. She is as many of, you know, vice president of legal affairs at ed choice. And she’s got a lot to say, eager to talk to her.[00:18:00]
[00:18:24] Learning curve listeners as promised we are back with Leslie Hiner Esquire. She is the vice president of legal affairs director of legal defense and education center at ed choice. The nation’s leading educational choice organization. Heiner is an attorney with extensive state legislative and executive branch experience in Indiana.
[00:18:46] Part who’s your hair. She was the first female chief of staff to the speaker of the house counsel to the Senate, president pro temp and general council elections, deputy to the secretary of state, a founding board member of one of Indiana’s first [00:19:00] charter schools. Leslie served as chairman of the board for the first several years.
[00:19:04] Guiding the school’s growth from about 150 to over a thousand students. She was also directly involved in developing Indiana’s original charter school law. One of the best of the nation in Indiana’s voucher law, the largest in the country to date, they also have a new ESA. We might have to talk about that.
[00:19:21] Leslie is a longtime member of the Federalist society and a Luke, our series excellence in public service. She’s been cited in numerous national publications, including the wall street journal, New York times, Chicago Tribune, Washington times Fords and us news and world report among others. She earned her Juris, doctorate from the university of Akron school of law and her bachelor of arts degree from the college of Wooster.
[00:19:43] Other than that, all you have to say, listeners is she’s just a lovely and kind person. And so Leslie, welcome to the learning curve. This is a lovely, it’s quite a, quite
[00:19:56] Cara: a bio you have there. All right. And Leslie, so [00:20:00] we may have some school choice questions for you, and we have some legal questions for you.
[00:20:04] I want to dig into sort of what’s going on lately, but for our listeners, we talk a lot about sort of current cases on the learning curve. Our listeners have heard us talk a lot about Espinosa for example, but we rarely see. Travel back in time. So I don’t wonder if. Can you help us understand?
[00:20:22] Let’s start with Brown v Board of education. I mean, just, you know, in two minutes, a history lesson here, brown V board of education and what on earth that had to do with today’s school choice movement. And maybe you could even take us through, for example, the real landmark, 2002.
[00:20:39] Supreme court decisions, Zelman v Harris, which upheld one of the very first voucher programs in Ohio. Can you talk us through a little bit of the legal.
[00:20:48] Leslie: Oh, sure. I’d be happy to do that. I should say that first there was a before brown by about 30 years, there was a major us Supreme court case called Pierce vs.
[00:20:59] [00:21:00] Society of sisters, where voters in Oregon. And they actually voted to mandate that all children could only attend public schools. And the us Supreme court said, okay, No, no. No, you do not get to standardize the children. And the court went on to say that parents are the ones who have the authority to choose education for their child.
[00:21:25] So that in itself was a very significant movement. Now that was part of a movement at the time of the early 20th century to standardized school standardized children. But then at the same time we had Rosenwald schools that opened that were solely for black children. And in fact, in 19 28, 1 third of the schools in the south were for black children, were these Rosenwald schools.
[00:21:55] They didn’t have all the supplies, but many of those students got a good education until.[00:22:00] So brown came along and highlighted that not withstanding this activity, just standardized schools. They were standardized for white children and black children were being significantly left out.
[00:22:16] But then in that ruling in brown first they said having separate schools separate but equal that was thrown out the window in the first brown decision. However, then the question was okay, well now what do we do? So there’s a second brown decision that said that the schools had to be desegregated with all deliberate speed.
[00:22:40] Well, that’s a little bit of unfortunate wording there because it left a lot of room for interpretation. So some schools did well. With desegregation, but other school boards were really challenged by district lines and housing patterns.[00:23:00] and so this was a real struggle for the school system.
[00:23:03] So now we have two things that happen there just in the 20th century, this, attempt to try to standardize all the children. Okay. So that didn’t work so well. And then when the brown decision came along, And this was the obvious wake up call to the nation that black children lacked access to, to education.
[00:23:26] And that had to change that became really crystal clear. But how to affect that change was the real struggle. And of course the state immediately defaulted to. Well, we’ll see, you know, the government will do this. The government will control as the government do it. It didn’t start real well. So then we had busing that kicked in about in 71, continued until about 1980 with some mixed results.
[00:23:55] depending on who you talk to it either worked well or it didn’t. But there [00:24:00] is some research though that shows that the achievement gap between black children and white children had significantly narrowed by 1980, when pretty much that was about the time that busing ended.
[00:24:13] So here we have the situation where the government is trying to have a system that works for every child, that the children are all standardized, that the government is in control. And. It just wasn’t working. Right? How long do you hold them? We have the venture program that came along that Ohio passed in 1996.
[00:24:38] And then there was litigation against the Badger program. It was a venture for children living in Cleveland, Ohio, and suddenly we saw the whole. The us Supreme court was so great. The Zelman versus Simmons here, his decision was just a wonderful decision [00:25:00] because the court said like under a voucher program, the big difference is that the money for educating a child goes to a parent.
[00:25:12] And at the moment that the parent has control over that. To then decide where the child should go to school. At that point, there is a break between the state and the parent and the parent’s choice of school that is solely the parent’s choice, not the state. So that did two things for us. The first thing is it suddenly now in the 21st century, we moved from the government trying to fix everybody.
[00:25:45] To now here’s the new system where parents can be in control. Parents can decide what’s the best education for their children. And the second thing that it did is that by [00:26:00] making that break between this state and the parent, because it’s the parent choosing the school, if the parent chooses a religious school state has nothing to do with that choice.
[00:26:11] That is a free exercise of the parent’s own religion. If the parent chooses to send the child to a religious school,
[00:26:21] Cara: Leslie, I want to, I want to push this a little bit. so, you talking about. An era where government thought they were going to fix everything for everybody.
[00:26:29] And I think the first case you were talking about one of my favorite lines from the court’s decision is that right, the child is not the mere creature of the state. So it was kind of setting the tone for us getting to a place where parents have more direction and say, but of course, that first voucher program that I asked you to tell us about.
[00:26:45] And then the Zelman decision was really about, of course, allowing parents to take their tuition dollars to. Privately run schools. Now today, one of the bigger arguments that we hear, especially with regard to our public charter school. [00:27:00] Is that, oh my goodness. They are segregated. you were talking about this time in brown, you know, people assume.
[00:27:05] And I think you were right to point this out that in the pre-Brown era that all schools for black children must have been terrible when the reality is, is that as you said, many of those schools were very high performing probably affirming for black children. Post brown in the busing area. One of the great tragedies, if you look at the research is that we lost amazing , black school leaders and school teachers all pushed out of the system.
[00:27:30] Now, today we have charter schools which might be heavily segregated in the sense that majority. Parents of color are choosing to send their children to these charters. For whatever reason it might be achievement. It might be, they want their children to be around other children who look like them. Various reasons, right?
[00:27:49] where are we with regard to do these arguments against charter schools or attempts to try and say you can’t have these schools because they’re segregated by race legally. Where [00:28:00] are we at? What does that mean?
[00:28:01] Leslie: in my opinion, I don’t think it means very much. Because again, first we start here that the choice belongs to the parents and the Supreme court has been very clear about that.
[00:28:14] Now for a hundred years that the parents have that right under the constitution. So we start there second. We’ve also found that in traditional district public schools they are as segregated today as they have ever been So to assume that charter schools may be more segregated or, or any other school may be, and only that district schools can be segregated.
[00:28:43] No, no, that’s the arguments get turned upside down and none of this makes any sense. Yes, you are looking at this from the perspective of. A system of schools, if your priority is [00:29:00] that there has to be a system of schools that only operates in one way, then maybe what you just talked about could be a problem.
[00:29:10] However, we’ve moved past that now to recognize that it’s not the system that matters, it’s not standardizing children into some system of schools that match. What matters is the individual children themselves and how they learn. So you’re right. One of the things that , we discovered much to our detriment after the reservoir at schools closed is that we lost a lot of really great black teachers and we still have a problem.
[00:29:44] To this day. So anytime a parent is going to choose a school let’s say if you are a black parent and you want your child to go to a predominantly black school where they are black teachers, whether it’s a charter [00:30:00] school or whatever school it is, that’s your right. And you’re going to make that choice because of a variety of reasons.
[00:30:09] You know that this is going to be a comfortable, safe place for your child. And we all know when children feel safe and they’re comfortable and they’re happy. That’s when they learn. And that’s the point. And that should always be the only point that we are prioritized.
[00:30:30] GR: Well, Leslie speaking of learning, this is an opportunity for people who listen to our show to hear from you, particularly as an attorney, but also someone who’s used her.
[00:30:41] Legal background and thinking to also shape public policy. And there are many lawyers who argue cases who never stepped foot in public policy. There are people with a lot of grief who will step into the foray of public policy, but never had a chance to do anything with litigation. And you’ve done both and particularly in a market called [00:31:00] school choice.
[00:31:00] So in 2020 , Supreme court ruled in favor of Kendra Espinosa, who we’ve had on the show that was a victory for the criminal choice. Right now the Supreme court is considering what they’re going to do with the tuition program in Maine and Carson, for our listeners who are interested in , your work and your role.
[00:31:21] What do you tell them is at hand if in fact, the court rules in favor of Carson, what does it mean for mom and dad? What does it mean for them? schools?
[00:31:31] Leslie: Oh, it means the world, Gerard. This is really as I, spoke earlier about what was happening during the 20th century now in the 21st century we’re beginning to really see the light , and place more value on families, parents, , and the learning potential for children.
[00:31:51] These two decisions mean everything. What’s happened previously is that states would prohibit parents from [00:32:00] choosing a religious school or a certain type of religious school, or as in the Carson case out of Maine, main said, well, if you’re a religious school, you can be a parent can choose a religious school just as long as that school doesn’t actually act religious.
[00:32:18] Which is little far out. But there actually isn’t legal standard there regarding legal status of the school, which would be their status as a religious entity versus how they use the funding at that religious school. Now I will say that we are expecting that this court that has been very clear in decisions over the last 20 years in particular that religious freedom matters.
[00:32:49] This court has been very willing to uphold religious Liberty across the board. We expect them to do the same thing here. So what [00:33:00] that really means is that so many cases we’ve seen in states where legislators would get a little nervous. About passing a voucher program or some kind of school choice program goes well, , if we have religious schools that participate, then maybe we’re going to get sued.
[00:33:19] Maybe can be a problem. Really don’t want to do that. And so they have backed off from offering school choice. with this Carson decision, what I’m really hoping is that the language is this decision will be clear enough so that there won’t be any of that kind of hesitation anymore. I’ve been telling people now for quite a while, school choice is constitutional.
[00:33:45] Go with. Yes. That’s where it is. School choice is constitutional. It’s important to design programs to make sure that the programs meet the four squares of the constitution, but frankly, that’s [00:34:00] not hard to do. And so I think these decisions just open up the world for parents and for sure.
[00:34:06] GR: The ABCs of school choice, which ed choice puts out annually is a go-to book for me, because not only do you lay out the different types of choice programs in the United States, which are educated more than 500,000 students, there’s always a policy component, but also a legal component.
[00:34:24] And you haven’t seen how the sausages. In state government and also seen politics at a real level. Let’s just say the Supreme court rules in favor, and that’s another width of parental choice. How do you see anti parental choice lawmakers at the state level responding? How should we, who supports pro-choice.
[00:34:50] Gear ourself up for, we know it would be the next battle in the parental choice wars
[00:34:55] Leslie: we’re beginning to see some of the new battles emerge. Now[00:35:00] the Espinosa decision. It was huge. So that really triggered the opposition to start looking around for other ways to block parents from choosing the schools of their choice.
[00:35:13] And what we’re seeing now is that we still see challenges to funding, adequacy funding. They will allege that public schools lose money. If there’s a school choice program at the state constitutions prohibit the state from diminishing funding to public schools we normally not at every case, but they normally beat that back with a basic principle that every school, no matter what kind of school, public, private, whatever it is, should be paid fairly equitably for the children.
[00:35:49] Served by that school, but you don’t get paid if you don’t serve children. So if a child leaves the school for any reason, [00:36:00] it’s just unreasonable to think that somehow that school should continue to be getting money when they’re not providing any services. And that just doesn’t make any sense.
[00:36:10] so those arguments are. Falling by the wayside which is great. Interestingly enough, opponents are also using shockingly some of those old blank, the old arguments from the 20th century that I spoke about earlier. Insane. All the schools should be standardized. There should only be one system of education and all the children should learn all the same things in exactly the same ways.
[00:36:40] And it’s all about the system. Not really about whether or not a child is learning. Those are called uniformity challenges. they continue to bring them, they continue to lose those challenges. So we’re going to keep up with them. They also have brought some challenges regarding discrimination and [00:37:00] equal protection.
[00:37:01] However, I will say the courts have not been really eager to pick up those arguments and really address them very much because frankly. they don’t really apply very well to school choice programs. And so the courts normally go there. Now, I will say that people who support this though, look for the odd things to come up.
[00:37:23] We’ve seen some zoning challenges to try to zone religious schools out of uh, an area. Not great, but it happens. And then there are a couple of cases that are as applied challenges. So for example, in North Carolina, the North Carolina Supreme court said, is that. Perfectly constitutional there said that about, oh geez.
[00:37:47] About seven years ago now. But now there’s another challenge saying that the way they’re implementing the voucher program is not right. That case is not going anywhere at the moment either, but [00:38:00] it’s just another way to challenge. So yes, are people who advocate for school choice should understand.
[00:38:06] Those who oppose it are primarily those who really want the control over education to standardize the children in a standardized system. So they’ll continue to look for any little nook and cranny where they can in certain arguments and try to make us crazy and work overtime to support these parents who went nothing.
[00:38:30] And the opportunity to send their child to school where they know their child will be safe and will be able to learn and be successful.
[00:38:39] GR: And for our listening base, who are funders, what Leslie said is really key because those who do not support parental choice, or at least the version that we support, they bet a lot of funders who are putting in millions of dollars into their coffers, as well as teacher unions to argue against it.
[00:38:59] There’s going to be a [00:39:00] major fight going ahead. So hopefully you’ll do the same for our side of the fence. Here’s the last question for you? And it’s really geared for your response to students in law school or practicing attorneys who may work in another. Other than education would really have an interest in it.
[00:39:16] They don’t have to leave their profession to be involved in litigation and strategy cases, but you also have law school students today who believe the only way they can be involved in education law is through the traditional route. What do you say to those students who are, thinking about walking on the wild side of the law and what role parental choice litigation and strategy and lawmaking convenience.
[00:39:43] Leslie: Oh, well, I’m the poster child for this question. I did not go to law school to practice this kind of life. My specialty is international law actually. But I, had a case early on. I had a client at a five day [00:40:00] trial where the question was who’s the proper person or entity to decide where a child goes to.
[00:40:08] And I won that case. It was a big win. I was so excited. But this is where I learned the importance of the critical importance of educational choice. But at that time then my husband and I went on to buy. Trucking business. And then after we owned the business and I worked for the legislature, was it private practice, but back and forth.
[00:40:32] And so in my career path, I’ve been advocating for educational choice. It’s the mid 1980s. But I found it very easy to be deeply involved in this issue, regardless of what job I had. And so this is the sort of thing for law students. At first law, I would strongly encourage them to know this issue, learn this issue for a couple of [00:41:00] reasons.
[00:41:00] The first is if they are ever planning to have children, they want to know what their options are. They need to understand this, this becomes important. The second thing is that the school choice case. I have been defining first amendment law. We are making significant movement and protecting our religious Liberty rights under the first amendment.
[00:41:29] As a result of the challenges that have been brought to the school choice programs. And for anyone who’s a new lawyer or interest in constitutional laws. Awesome. It is just the most fundamentally exciting area of the law that you can think of. ’cause you’re, dealing , in a very pure way with the fundamental liberties of this country are individual liberties, and [00:42:00] that’s very exciting to be able to do that and to make a difference.
[00:42:04] so I would encourage Boyers to consider this. She wants some advice, be happy to talk to, to anyone who may be interested in this. And then otherwise look to your legislature or non-profit groups in your state who are advocating for school choice and see how you can help. I guarantee you they’ll take you up on the offer if you offer to help everybody needs a good lawyer to the agreed over the law.
[00:42:31] It’s like, what does an institution really say? Can you help us with this? There’s always a role for a good lawyer to play
[00:42:39] Cara: well, Sage advice from a good lawyer, Leslie Hiner thank you so much for spending this time with us. I know we both appreciate it very much. Great to hear your voice and to learn from you too.
[00:42:50] Leslie: Well, thank you very much. I’m just so grateful that you are giving so much attention to this issue. The parents across the country, who, just [00:43:00] really need this and, their children are, desperate for the opportunities. This is a fight worth fighting. Amen.
[00:43:07] Cara: All right, Leslie, be well, take care. And we hope to talk to you soon.
[00:43:11] Leslie: Great. Thanks so much.[00:44:00]
[00:44:07] GR: And my tweet of the week comes from education next. And it says rather than. Juicing the hard work of reading to summarize the meaning of a passage in a single sentence. Teachers can ask middle and high school students to rewrite an author’s words in their own words. I think that is a Sage advice. If nothing more than to give students an opportunity to articulate his or her voice.
[00:44:35] Through a platform of someone else’s language to either a understand what the author had to say in his or her view or worldview number two, to show what students can think or how they can interpret what the author had to say. And then third, how to take what another author wrote and to inculcated into the life experiences of the students.
[00:44:59] Those are [00:45:00] just three lanes to walk amongst many lanes, but these lanes provide the student an opportunity to participate in meaning making not in the legalistic aspect of strict Constructionism versus original intent. As much as saying, huh, this is what I saw and that’s my Twitter. That’s
[00:45:19] Cara: pretty cool.
[00:45:20] Also as a former English teacher, I will say getting kids to restate an author’s argument in their own words is a really good way , to teach them how not to play something that I dealt with all the time.
[00:45:32] Cara: Not only as a high school English teacher, but as a professor as well, it was like, really?
[00:45:37] Cause you write this Gerard next week. We will have. A titled person. This is great. Lord Charles Moore. He is a columnist at the spectator, former editor of the daily Telegraph and the authorized three volume biographer of lady Margaret Thatcher. I have been watching the crown lately and I’ve been on Margaret Thatcher’s season and oh man.
[00:45:58] So cool. [00:46:00] Anyway, Gerard, I wish you a little bit of sunshine the rest of your day and next time we’re back together. I’m sure we’ll both be quite cheerful. So you have a good.
[00:46:10] GR: You too. And I guess the next time we talk, we will be less Oscar, the grouch and more big bird.
[00:46:17] Cara: Yeah. We’re going to do our best and you can, you can open with a song, so I’ll be looking forward to that.