Institute for Justice’s Michael Bindas on the SCOTUS Oral Arguments

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This week on “The Learning Curve,” co-hosts Gerard Robinson and Cara Candal talk with Michael Bindas, a senior attorney with the Institute for Justice, who represents the lead plaintiffs in the U.S. Supreme Court case, Carson v. Makin. They discussed last week’s oral arguments, and the background and key legal contours of the case. Bindas described Maine’s school tuitioning program, and the pivotal change in the early 1980s that allowed for the state to discriminate against religious families. They explored the questionable distinction that the U.S. Court of Appeals for the First Circuit drew between religious “status” and “use” in schooling, and the likely impact of the U.S. Supreme Court’s 2020 Espinoza decision, which was a major victory for the Institute for Justice and school choice. Bindas shared what makes him hopeful that the Court will rule in the Carsons’ favor, and what he thinks the next legal steps should be to support K-12 educational choice.

Read Pioneer’s amicus brief and op-ed in support of the plaintiffs in this case.

Stories of the Week: In Colorado, school districts are stepping up recruitment efforts to address the shortage of substitute teachers, and calling on parents to help fill gaps. In New York City, Mayor-elect Eric Adams’ first cabinet-level appointment is Schools Chancellor David Banks, founder of Eagle Academy, who promises to disrupt the bureaucracy.

Guest:

Michael Bindas is a senior attorney with the Institute for Justice (IJ) and leads IJ’s educational choice team. He was part of IJ’s litigation team in Espinoza v. Montana Department of Revenue, in which the U.S. Supreme Court held the exclusion of religious options from Montana’s educational choice program unconstitutional, and he is currently IJ’s lead attorney in Carson v. Makin, challenging Maine’s exclusion of religious options from its town tuitioning program. Prior to joining IJ in 2005, Michael spent three years as an attorney with Perkins Coie. He is a former law clerk to Judge Rhesa Hawkins Barksdale of the U.S. Court of Appeals for the Fifth Circuit and served as an engineer officer in the United States Army and Pennsylvania Army National Guard before beginning his legal career. He received his undergraduate degree from the United States Military Academy and his law degree from the University of Pennsylvania.

Tweet of the Week:

News Links:

New N.Y.C. Schools Chancellor Vows to Tackle Education Bureaucracy

https://www.nytimes.com/2021/12/09/nyregion/david-banks-schools-chancellor.html?smid=tw-share

Colorado schools call on parents to help during substitute teacher shortage

https://www.denverpost.com/2021/12/09/colorado-parents-substitute-teacher-shortage/

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Please excuse typos.

[00:00:00] Gerard Robinson [GR]: Hello listeners. This is Gerard Robinson from beautiful and starting to become very cold Charlottesville, Virginia, for another week of The Learning Curve, where we talk about great ideas, great stories, and have conversations with great people. But of course, none of this would be without the greatest co-host in the United States, Cara Candal.

[00:00:21] Cara: I’ll take it. What I won’t take though, Gerard, is people from Virginia talking about the cold.

[00:00:36] [GR]: I forgot that I’m speaking to someone in Massachusetts. Who’s got roots in Michigan. Yeah, I’ll take that. My kids were like, mom. And then I thought I’m going to consider that request. So, yeah, no, but glad to hear. It’s been a big week. We are ramping up to the holidays. We’ve got a great guest this week.

[00:00:55] I’m sure you were listening to the Carson case. as [00:01:00] I was on. Monday, was it only family? Tuesday? what day is it? Sure. So we’re going be talking to Michael Bendis later today. I know it fits me. It feels like it should be January one, but we’re going to be talking to Michael Bindas and that’s pretty exciting because he just argued in front of the Supreme court.

[00:01:16] So, , yeah, , we’re lucky to have him. And what do you, what are you up to in beautiful Charlottesville, Virginia? Well, the girls are getting ready for the last week of class. My wife is slowly but surely tying up the, last semester for a year in person. UVA law school. I am preparing to finish up work next week, working with teachers and principals on a pretty good project, talking about character education and all those things.

[00:01:44] And, slowly but surely watching and waiting to see who will be the first few appointees to the young administration here in Virginia. I think a lot of people are watching and waiting. And a lot of us in the, , ed reform space have a lot of [00:02:00] suggestions for your new governor, but I’m sure you do for sure.

[00:02:05] So, yeah. and what else is on your radar as we head into this, holiday season, which is a PA I don’t know, seems to be long to make this year, but that’s, maybe that’s just me with three children. Well on the family side, we’re going to hang out with the grandparents on Christmas day, and then we’re going to spend some time here with each other.

[00:02:23] And, , even though it’s still cold, , we’ll still get out and see family and friends and all those goodies. So it’ll be good time. What about you, saying, hosting, cooking, doing all of the things and I’m rapping, lots and lots of. So, yeah, but looking forward, one of the things I don’t know, Jared, I’m going to, I’ll just hit you with my story of the week, because my story of the week is about parents, which love to talk about parents.

[00:02:49] It’s fantastic. but with my own parents coming into town, , reading this story out of, I guess it’s gotta be the Denver post talking about [00:03:00] how, I mean this just nationwide shortage. Of teachers, right? For so many. How many years have we been saying there’s going to be a teacher shortage and now there really is one.

[00:03:10] And, not only can districts not find teachers they’re leaving in droves for various reasons. They can’t find substitute teachers, Gerard. So this is from the Denver post is, is entitled Colorado schools calling parents to help during substitute teacher shortage. Now, there is a connection here because, Who is in her mid seventies.

[00:03:29] She won’t mind me saying has quite a few friends in Michigan who have taken on substitute teaching. They’ve come out of retirement to fill some voids, in the Detroit area where she lives, same thing is happening here in Denver. And it’s like, they’re looking everywhere. You know, oftentimes districts.

[00:03:45] Substitute teacher pools, folks get into the substitute teaching pool and the hopes of getting a permanent position. And it sounds like many districts are just grasping at straws. Like I don’t mean to be rude, but are we at a point where it’s sort of like, if you have a [00:04:00] pulse, you can be a substitute teacher.

[00:04:02] and that’s of course not what districts want. So they are calling on parents, which I think. It’s an interesting approach, especially as parents are coming off of, , more than a year of having taught their children at home, they’re calling on parents to come in and help as they can. in school districts, Oh, the school districts, charter schools, faith-based schools, private schools are always calling on parents to help in various ways, whether it’s PTO or, , fundraising, whatever it is.

[00:04:28] But here it’s calling on parents to please come in and step in when teachers are sick or when we simply have a shortage, parents are saying. I can’t do it. I might still be taking care of one kid. Who’s not in school. Full-time I might still be taking care of family members or I’m trying to juggle work too.

[00:04:47] so it’s just this compounding problem as we come out of the pandemic and to make matters worse. Parents in Denver who are interested in helping are saying, do you know. It’s really too difficult to make this happen. They have to [00:05:00] jump through all of these hoops to become substitute teachers.

[00:05:03] They have to get special licensing and take, and it’s just a lot of them are saying it’s simply not worth it. If you want me to help, I’m here to help. Make it easier. So, , this is a challenge for districts because of course I joke and saying,, are we just finding somebody who’s breathing to come in and be a substitute teacher?

[00:05:21] And of course, substitute teachers are really important part of the fabric of schools, right. And under normal circumstances, Many schools have substitute teachers who are very well plugged in to what’s going on in a school. And that works well. but so you want to have standards and regulations, meaning that you’re getting quality people to take over, especially if you’re going to be a long-term substitute, but it sounds like in some cases, we have not built systems and structures to help people enter the substitute teaching market, in a way that’s efficient and going to be helpful to school districts, especially during this time of crisis.

[00:05:52] So I found it to be a really interesting story to learn, and maybe my mom will become a substitute teacher at some point, let’s [00:06:00] say, following the lead of all of her friends who are jumping into the pool, but do you think, I think it’s real because I’m hearing the same thing from. Friends of mine who are superintendents and also friends of mine who were in the classroom.

[00:06:14] Many of them said I’m already burnt out, just because of all the things dealing with COVID related dynamics. That’s number one. And then number two, when like Kyle, he doesn’t show up that I either have to take. Her or his class, or we’ve got to bring someone in, well, guess what, if we can’t find any someone now we have to double, which then brings in the challenge of trying to make sure students are distanced safely.

[00:06:38] So there are a lot of things going on, but I do think there’s something that we, as a choice and reform related community, have to take some ownership from while many of us have supported. 2030 some five years school reform, some of our language about accountability and standards while we didn’t mean it to become anti teacher [00:07:00] or anti teaching profession came off that way.

[00:07:03] And now we’re starting to see some of the unintended consequences of some of the seeds that fell on the type of soil we did not want, because when I talked to people about school choice, some people say, you know, I didn’t get involved in education. I was going to teach, but everything was either I’m going to go with charter school or private school, but guess what?

[00:07:22] You guys made the profession pretty bad. So that’s just something for us within the family to think about pretty bad is what you mean. Right. It made it sound really unattractive. Some of our conversation made it seem like teaching. If you don’t teach in a charter or a choice school, when you have to go to a traditional school, good luck, happy hunting.

[00:07:40] When frankly, some of our people don’t like what they call government schools. I think public schools are bad, but we, fed into that. , and I say, I’m oh, you and I aren’t one of the ones who did it intentionally, but that’s just one way to look at it. Number two, who wants to take the chance of going into a school and finding themselves.

[00:07:58] Also possibly [00:08:00] becoming ill even with the shop polling of the story. So I think there’s a deeper dynamic in terms of, and I think you hit on one of the points. We don’t have a strong pipeline when we were in Orlando your organization’s event. I ran into David. I can’t think of David’s last name, but he runs and has for years, a nonprofit organization, that’s focused on alternative certification for bringing teachers into the.

[00:08:25] And I’m sure we’ll find his name, , once we post this, but Dave has been saying this for almost a decade. He said you have to build a pipeline early. Think about this. Think about the number of military personnel who are coming back to places like Virginia, for example, large military state or other parts of the country.

[00:08:43] We have a troops to teacher program. It means that a, we have a template in place, but maybe there’s some things we need to. In order to bring in qualified military personnel to fill some of those gaps. Many of them entered military service for [00:09:00] public service. Education is part of public service and public good.

[00:09:03] So I think that’s one area we can tap into. You talked about our retired teachers, I’m all for and have actually seen. We have a number of retired teachers who are veterans, who would like to come in now wearing my former state hat. One thing states have to watch out for is teachers who are retired working X number of hours per month, and that possibly impacting their retirement benefits.

[00:09:29] And so there’s a nuance that our state chiefs of schools soups I’m sure will work out, but we can do. But just realize there is a point where you’re going to dip into that and teachers going to say no, but you also have former principals who would love to come back into the classroom and teach. So I’ve said a lot of things.

[00:09:49] I just think this is a tough situation. Human bodies enough. I think we have to have a conversation about teaching that makes it more humane, [00:10:00] not just about human being. Well, and I think, that’s right on Jordan. I think we rarely talk about substitute teaching as a pipeline. We rarely as community are really looking at, you know, you think about substitute teaching, it’s something separate, and I will just say one more thing.

[00:10:16] And that is to the point you made about some people still not feeling safe in schools. rates of COVID are different around the country and they’re going to be continued to be different, et cetera. But when you’re bringing folks out of retirement, To teach whether they were former principals or former teachers, or, that could very well be a much more vulnerable population.

[00:10:33] So I think too, that this speaks to, we’ve come off a year and a half of remote learning. This article says that some schools have to go back remote because they simply have a shortage of staff. Well, again, what are we learning from this pandemic about leveraging technology in times of. And so I, would’ve liked to read more about that in this article.

[00:10:54] And hopefully, maybe we’ll have David when we figured out his last name, we will have David on to talk to us about pipelines. [00:11:00] And I think that that’s a very worthy conversation. And speaking of technology listeners, you know, that we’ve interviewed Julie Young, who’s at Arizona state university. I would go to the Pioneer webpage for The Learning Curve, wherever you find us, and then type in Julie Young and listen to what she has to say.

[00:11:18] Cause she’s an expert. We’ve also had a couple of other people on our show. Who’ve talked about using technology because. Whether you like it or not for a whole host of reasons, moral, ethical, otherwise, technology can be your friend. And here is an example where we need a friend like this.

[00:11:36] So thanks for that story. So naturally New Jersey and Virginia will receive a lot of attention because the statewide election, but, we also had an election in New York city for a new mayor and mayor-elect Eric Adams. Former police officer, a member of local government. He’s now in a position where he can do some monumental things.

[00:11:59] And he said [00:12:00] that education to him was pretty important and he at least took one step toward making that a reality by making his first cabinet level appointment. And that is of a gentleman name, David. Who is the new chancellor of New York city schools. Some of you may know of David Banks because of his work with the Eagle Academy in New York City, which started off as a small network of schools, public traditional schools, innovative schools, although not charter, that were created

[00:12:31] in partnership with a Hundred Black Men in the early 2000s, then-Senator Hillary Clinton was at one of the announcements of the school. And so it’s now grown to a network where they have schools in the different burroughs. He started his career in different parts of public-private, but then became a school principal.

[00:12:50] And from a school principal, he worked his way up the system. When the mayor was actually running for office before he was elected, David Banks was one of the people he went to [00:13:00] for advice. So here’s someone who worked in the traditional system of New York city public schools, was a principal, has cache

[00:13:08] With principals and teachers, part of the union and who decided to create a, public school network that wasn’t a charter school because he said, Hey, I want to show that we can do innovative things within the structure of public schools. And I will say amen to that. And he said, now I’m going to step up and become the chancellor.

[00:13:26] Well, I have an opportunity to, I lived in New York for a couple of years in the mid 90s, in fact, when Rudy Crew was the chancellor of schools. I also know Joel Klein, many of you know, that New York City is the largest public school system in the United States, more than a million students, more than a hundred thousand employees.

[00:13:47] , it is a bureaucracy and it is a big place to manage. So many of our listeners will know that New York is a Mayor-0controlled school system, meaning the mayor will appoint the [00:14:00] chancellor that the school board. And that was a change that came about in part during a wave of changes in the eighties and the nineties, the big city school systems from New York.

[00:14:11] To Cleveland, to New York, but also in places like Jersey city and Newark. And so, Joel Klein would have been the first chancellor under the new system. So I wish David luck. I had a chance to meet him, and what I am optimistic about is he’s someone who worked through the system.

[00:14:33] So he’s got some credibility. Number two, he was willing to reform the system by being in the system; three, he’s got a pretty good track record for taking low-income young man, mostly Hispanic and African-American, and moving them off into college to jobs, entrepreneurship. So I wish him luck. I think this is a bold step for the mayor-elect.

[00:14:55] It’s a good signal, but as we know, he’s gonna have to work with stakeholders who kind of like things [00:15:00] the way they are, but there’s one thing he said. And most of what I’m talking about, you’ll find in the New York Times article that our team would put on the webpage – it’s this and I’ll paraphrase. He said if 75%

[00:15:13] of the white students in New York were not doing well in reading, the city would be on fire. But because it’s not 75% white – because it’s 75% black and brown – we kind of accept it as business as usual. What do you think?

Cara: Well, my first thought is to that very last. Are you listening, Boston Public Schools? Just saying this could be getting in trouble today.

[00:15:40] Right? This could be applied to so many of our urban districts, not just urban districts, so many of our districts, right. That we look, we know there’s nothing to see here. Everything’s going okay. And you look underneath the hood and you look at Boston, it’s the kids who attend the exam schools are doing just fine.

[00:15:59] Well, most of them are not children of color. And so I, think his point is very, very well taken. I too, am excited for this. I think that it’s a bold move. It says a lot about the new mayor’s priorities, man. Oh man. I mean, you’re talking about how large New York.

[00:16:18] It’s like that just the city school system that it’s so much bigger , than what any most school districts in America would even have to think about. So I hope that there are ways around what is no doubt, just a lumbering bureaucracy, and that the new chancellor can find a way.

[00:16:40] And I think, others in the position have made earnest attempts to make it happen. And you mentioned Joel Klein. I mean, I think that it’s remembering that mantra. city would be on fire if we were talking about white kids here is really, really important.

[00:16:55] And people who have long worked in a system that some probably [00:17:00] perceive as like a bit intractable, right. to get the work done, on behalf of kids. And especially at this particular moment, this inflection point in American history, it’s a big job ahead and cheers to the man who has agreed to take it on.

[00:17:15] So I like that story of the week, Gerard, and I think that, all eyes are on your home state right now watching the governor. And, in terms of school systems, we’re going to be looking at New York as well. So much to talk about in the months to come. Have you been Boston? Have you returned to the elected board selecting your superintendent or is it still mayoral appointed? Mayor appointed. Okay. And our producer, Jamie gas is going to text me right now and tell me if I’ve missed the news here, but yeah, no, I mean, talk about a system. That’s not, again, I say, how many times do I show, do I say this?

[00:17:50] This is for another show. But talk about a system that’s got some work to do. And, it’s not discussed here in the Commonwealth because we sort of, we have this tendency [00:18:00] in the Bay State to say like, oh, but we’re number one, and then look away from what’s really going on under the hood.

[00:18:05] Coming up, Gerard, we are going to be talking to Michael Bindas, which is really exciting because it was just last week that he argued the case, Carson v Makin. So we’re very grateful to Michael Bindas from IJ for taking the time out to chat with, we peons who have not argued in front of the Supreme Court.

[00:18:25] So really looking forward to talking to him, coming up.

[00:18:55] Well listeners, we have got with us today, Michael Bindas. He’s been here [00:19:00] before, and we’re super lucky to have him this week. , as many of you know, he is a senior attorney with the Institute for justice. IJ’s educational choice team, really exciting. Many of you probably listened to him just this past week.

[00:19:14] He’s the lead attorney in Carson v Makin, which is the latest school choice case before the Supreme Court. Michael was also part of IJ’s litigation team in Espinoza v. Montana Department of Revenue in which the US Supreme Court held that the exclusion of religious options from Montana’s educational choice program was unconstitutional.

[00:19:34] Prior to joining IJ in 2005, Michael spent three years as an attorney with Perkins Coie. He is a former law clerk to judge Risa Hawkins Barksdale of the U S Court of Appeals for the fifth circuit and served as an engineer officer in the United States army in Pennsylvania army national guard before.

[00:19:50] Legal career. He received his undergraduate degree from the United States military academy and his law degree from the university of Pennsylvania, Michael Bindas. Thank you for [00:20:00] being with us today and congrats on an excellent job last week. Well, thank you. It’s very kind of you to, say, but thanks for having me, Cara and Gerard. I appreciate the opportunity to talk about educational choice and about Carson v. Makin.

[00:20:15] Yeah, well, no. So we’re not fluffing your ego. You know, a lot of us, nerds were listening and, nerding out. And I have to say I had several texts, chains going with my colleagues. And although I hang out with a group that’s very biased toward school choice. We were like, yeah. This is great. This feels good.

[00:20:32] This feels right. So, it’s very exciting. I want to hear about the plaintiffs, from the case, of course, but just, we’ve got a couple of folks on before who have argued in front of the Supreme court, but like, can you just give me a couple of words, describe that feeling when you you’re, when you’re up arguing before the highest court.

[00:20:50] intimidating and nerve-wracking would, uh, I think the good descriptive, so this was my first time arguing before the court I’ve been involved in, several [00:21:00] cases that had been up there before, but, uh, I hadn’t had the chance to argue. And so, , it was, as you can imagine, very intimidating because you’ve got nine of the greatest legal minds in the country and, , Yeah, for me, just some short dude from New Jersey who has never argued before the court, to stand before them.

[00:21:20] it was humbling. It was intimidating. It was like I said, nerve wracking. but I, don’t think I, uh, you know, did anything too terrible or, or didn’t, hopefully make a clown on myself. You did not. I can attest to that as someone who listened all the way through, you, I have to know.

[00:21:37] And here’s one thing I was thinking I was going to kill me for asking questions off the books, but like, do you sleep the night before? You’re about to argue a case. Is that a thing that people are able to do? I w I thought I was going to have a hard time falling asleep. I got to tell you, , I hadn’t slept as well as I did the night before in quite some time.

[00:21:55] And I don’t know why that is . And I got a good night’s sleep. [00:22:00] I got a good workout in the morning of the argument. And, I don’t know why that is because that’s amazing.

[00:22:11] I love it. I know I wouldn’t sleep, but I’m also never going to be in that position. So Michael let’s refresh everybody’s memory here. So we have talked a lot about the Espinosa case. On this show, but we’ve talked a lot less about this case out of Maine. tell us a little bit about the lead plaintiffs.

[00:22:29] The Carson’s sure the Carson’s are a wonderful family who live in a town called Colin burn, main it’s, close to Bangor and Glen burn does not have a public high school. And in Maine, there are quite a few towns that don’t have public high schools. And if a town doesn’t have a public high school, Or it doesn’t contract with a school to educate, the students from that town.

[00:22:54] Then they have to provide tuition to the family. to in turn, attend the [00:23:00] school of their choice. It can be a public school in a neighboring school district. it can be a private school. It can be in state. It can be out of state. It can even be out of the country and state routinely pays for kids to attend.

[00:23:14] Some of the most kind of elite prep schools throughout the country, , all the kind of blue blood prep schools you hear about in new England, the state has paid for kids to attend some of those schools to attend schools as far away as Colorado, Michigan, California. But there is one type of school that a student can absolutely not select under this program.

[00:23:35] And that is any school that the state deems to be sectarian. And by sectarian, they mean any, any school that provides religious instruction, essentially. , so the Carson’s again, they live in Glenburn, which is one of these tuitioning towns. families from that town because the town doesn’t have a public high school or contract with the school, to educate the resident students, they were entitled [00:24:00] to tuition, assistance under this program.

[00:24:03] But they believed that Bangor Christian school was the best school for their daughter, Olivia. And because they decided to send Olivia to this so-called sectarian school, they could not get this tuition benefit that they were otherwise fully entitled to. , basically they had to make a choice, either choose the school they knew was best for their daughter, which was.

[00:24:29] Christian school or get the tuition benefit, but they couldn’t get both. And another family. another one of the plaintiffs in this case that we represent the Nelson family were in a similar position. They also live in a town, uh, Palermo that doesn’t have a public high school. So they were also entitled to the tuition benefit.

[00:24:49] they likewise desired a religious school for their children, and they knew that that was the best option for them. But they could not afford to go without the [00:25:00] tuition assistance benefit. So they were forced with the same choice that the Carson’s were. , but because they could not afford tuition on their own, they had to forego the school.

[00:25:11] They knew was best for their kids, , and their. constitutional right to select a religious school. And they opted instead to take the tuition assistance benefit again, because they couldn’t afford to go without it. And so, uh, that’s really what means policy? , this non-sectarian requirement the, in the program, does it forces parents , to choose between.

[00:25:34] A right, that they’re entitled to this tuition assistance benefit or their free exercise, right. To select the school, you know, the religious school that they believe is best for their children, but they can’t have both. And government simply doesn’t have any business putting families to that kind of choice.

[00:25:52] I want to go back for a minute because correct me if I’m wrong. So Maine’s school tuitioning program has been around for a [00:26:00] really long time. And when it was first established back in 1873, there was a faith faith-based option. There was a religious option wasn’t there. And then it was in the eighties that the legislature and the state attorney general said that we’re not going to do this anymore.

[00:26:14] Is that correct? And if so, can you talk about this part of. Yeah, it’s a great question and great point for more than a century, religious schools were allowed to participate in this program and students routinely, chose religious schools alongside their non-religious counterparts. And. Great because you had a fully diverse array of choices for students to select from, and for parents that think, you know, a religious education is right for the kids.

[00:26:45] they were empowered to choose that. But in 1980, in response to an inquiry from a state legislator, the main attorney general issued an opinion, claiming that it was unconstitutional under the [00:27:00] federal constitution to allow religious schools to participate in the program. If it wasn’t clear back then, that that was just an incorrect, legal conclusion.

[00:27:12] It certainly became clear that that was incorrect, in, you know, the year subsequent to 1980 as the Supreme court in a number of cases held that is perfectly fine for religious schools to participate alongside their non-religious counterparts in programs like this, that operate on private parental choice.

[00:27:33] But nevertheless, so, you know, you had a century plus of, parents being allowed to select religious schools under the program. Now, all of a sudden in 1980, , the state does a complete reverse course and the impact of that decision. was tremendous. , you have a great example of what happened in the wake of that decision.

[00:27:53] There was a school called John Baptist high school. It was a Catholic school that at the time in 1980, [00:28:00] educated more, , students receiving this tuition benefit than any other religious school in the state. And once the state announced this new policy, that religious schools would no longer be able to participate, John.

[00:28:13] The high school was forced with a choice. , it could either. Maintain its Catholic identity and no longer be able to educate these students, , who were receiving the tuition benefit and who couldn’t otherwise afford to remain in the school without that benefit, or it could shed its Catholic identity and continue to educate those students.

[00:28:37] And it had to make that decision and it shows the latter. It actually had to shut down and reopen as a non. Secular high school so that these students, wouldn’t be out of, the great education that they were receiving. And again, that’s the sort of choice that government has no business putting citizens or schools to.

[00:28:59] it [00:29:00] is perfectly permissible for religious options, , to be provided in these types of programs. And when Maine made that decision to take those options away, It quite literally forced, , at least one religious school to shutter its doors and reopen as something. It wasn’t a, as a secular school, just so that students would not be kind of put out on the street and, be out of this, great education that they had been receiving.

[00:29:28] Yeah. Well, it seems clear there that at least the school was trying to operate in the best interest of students, even though it had to make a great sacrifice. It’s listening to you speak to I’m reminded of what’s going on, right. In DC with the build back better bill where they’ve structured.

[00:29:41] Pre-kindergarten to be so that it will look like some faith-based preschools could be direct recipients of federal aid and face the same choice. So, no, this is a, different show, Michael, I digress, but, um, I’ve seen that keeps recurring. So now I wanna, ask you about when [00:30:00] the United States court of appeals for the first circuit, Jamie gas and I, we got to attended that hearing here in Boston, when they heard the case. So, and this is something, again, that school choice nerds will definitely want to hear about there’s this claim in the ruling that religious schools actually weren’t discriminated against in inmates, on tuition program, as long as they didn’t cause.

[00:30:22] Religious instruction, which one would think, okay, a, that’s a little bit of a head-scratcher because if you’re a religious school, that’s kind of what you do, but so they were making this distinction between religious studies. And use in schooling. So can you like break that down in a way that like my mom who has no interest in such issues could understand it?

[00:30:42] Well, I’m not, I’m not sure I can understand. Let me try when the first circuit issued its decision four months prior to the first circuit’s decision, the us Supreme court had handed down its decision. In a case you mentioned earlier, Espinoza versus Montana [00:31:00] department of revenue. And what was going on in that case was Montana passed a school choice program.

[00:31:06] the agency charged. administering that program issued a regulation, excluding religious schools from the program. And we challenged that exclusion. We went up to the Supreme court and the Supreme court held the dat exclusion of religious options. And the program was unconstitutional under the us constitution because government cannot single out in exclude schools from a program like that, simply because the schools are religious meaning simply because.

[00:31:36] Have a religious identity or status. And so it seemed in the light of that opinion, that the first circuit would come to a similar conclusion regarding Maine’s, religious exclusion. But what the first circuit did was say, Yeah. We know the Supreme Court just said a state can exclude schools because they are religious [00:32:00] because they have a religious status, but that’s not what Maine is doing here.

[00:32:04] Maine’s not excluding schools because they are related. It’s excluding schools because of the religious things that they do, like provide religious instruction, which, most religious schools do. and in the first circuits, view this distinction between. Excluding a school because it is religious as opposed to excluding a school because of the religious things.

[00:32:30] It does was a constitutionally meaningful distinction. and so basically what the, the first circuit said is we know a state cannot exclude schools simply because they are religious, but we think it’s perfectly fine for a state to exclude schools because they do religious stuff, like teach religion and.

[00:32:53] Essentially the issue that we asked the U S Supreme court to review is can, a state exclude [00:33:00] a school, simply because it does what religious schools do, which is providing. Religious instruction along with all of the other secular, instruction that they provide. and hopefully the Supreme court answers that question correctly.

[00:33:15] But again, I don’t know if that did a good job explaining this suppose the distinction between status and use, but that’s really what it is is can a state, we know a state can’t exclude schools because they are religious. Can it get away with discriminating against schools by claiming

[00:33:31] we’re only keeping them out because of the religious things that they do. Is that permissible discrimination or is that just as unconstitutional as the discrimination that was going on in Espinoza?

[00:33:42] So let’s stick with another state with, an M and the names is Montana.

[00:33:47] So in 2020, the Supreme court ruled in favor of plaintiffs. in the Espinosa case, we had a chance to speak with you and Kendra as well. That was a major victory for [00:34:00] choice and IGA really drove that. Talk to us about the Espinoza decision and its likely impact on the Carson case.

[00:34:10] Yeah. So, as I mentioned, Espinoza kind of resolved this question of whether a state can exclude schools simply because they are religious. I guess technically left open the question of whether a state can do what Maine is doing, which is saying, Hey, we’re not excluding schools because they are religious, but because of the religious things that they do, but critically, there were two things that the court said in Espinosa that I do think.

[00:34:39] Signal what the court is likely to do in Carson. The first thing is , in the opinion for the court, chief justice Roberts noted the fact that some of his colleagues on the court had questioned whether there is a meaningful distinction between discrimination based on religious. And discrimination based on religious [00:35:00] status.

[00:35:00] and he was alluding specifically to justice Gorsuch and justice Thomas who had in, uh, in a couple of concurring opinions, questioned whether there is any distinction at all, or whether this is really just kind of two sides of the same coin. what the chief said in his opinion and Espinosa is we acknowledge the point, meaning we acknowledge this criticism that some of our colleagues that made, but we don’t need to address it in this case.

[00:35:27] So he’s at least recognizing in that language from Espinoza. That, Hey, there’s no distinction to be made here. Maybe, this truly is just a matter of, how you describe what’s going on because as, as Justice Gorsuch famously put it, you can ask, is the state discriminating against Lutherans or is it discriminating against people who do Lutheran stuff?

[00:35:49] it’s the same discrimination either way. And we shouldn’t pretend, that it’s not. And so again, that’s the kind of. Thing and Aspen, I think that kind of perhaps [00:36:00] signals what we might see in Carson is, that the court recognized in the majority opinion that some of the members of the court , have really questioned whether there is any meaningful distinction to be made between religious status and religious use.

[00:36:14] The other thing that the chief did was after holding. Montana’s religious status discrimination had to be subjected to what we call strict scrutiny, which is the most searching form of judicial review of a state law where the law is almost always going to be held unconstitutional unless the government can come up with an extremely compelling interest to justify the law.

[00:36:41] After saying that Montana’s exclusion, which turned on religious status was subject to this strictest level of scrutiny, chief justice Roberts for the court wrote. Nothing we’re saying is meant to suggest that some lesser degree of scrutiny would apply to a law that [00:37:00] discriminated based on religious use.

[00:37:02] again, he didn’t hold that this strict scrutiny, this test, this, most searching level of scrutiny would apply to a religious use based exclusion, but he said nothing in our opinion should be read to suggest that some lesser level of scrutiny would apply. So again, here, he’s saying. . Or at least seems to be saying that the court is going to look just as strongly and justice searchingly at a supposedly US-based exclusion as the court did a status based disclusion and Espinosa.

[00:37:35] And if that’s the case, if the court does apply that same, very stringent level of scrutiny, I don’t see how Maine’s exclusion can survive here. So, you know, it’s a long way of saying. Espinosa doesn’t squarely address the issue here, but there are a couple of things that the court dropped in the opinion that seemed to suggest that the court would view what Maine is doing is just as problematic as [00:38:00] what , Montana was doing in Espanola.

[00:38:02] I’m married to a law professor, someone who actually practice law prior to going into the academy and lawyers do a really good job of going through the detail and analysis of words, which is really important. So for our listeners who aren’t lawyers, I may not follow policy, a great deal. One question, I it from them.

[00:38:22] And in fact, they were pretty excited about talking to you. They said, well, assume that the. Rules and favor of Carson. What will this mean for school choice and religious Liberty from your point? Well, there’s the immediate impact I think, of a good ruling. And then there’s kind of the broader national impact.

[00:38:44] know, of course the immediate impact is going to be in Maine. Parents will finally be able to choose religious schools for their kids. if they believe that’s the best fit for their kid, they’ve been denied that choice for over four decades under this program and they will get that choice [00:39:00] back. So that’s kind of the immediate impact.

[00:39:03] In terms of the kind of broader national significance of a ruling in our favor. I think the most important aspect of that would be this, it would remove one of the key arguments that school choice opponents have relied on in attacking school choice programs for decades. , every time. Uh, state legislature considers adopting a new school choice program.

[00:39:31] We’re expanding an existing school choice program, opponents of school choice, run to the state house and say, you can’t do that. You can’t have a school choice program in this state. Our state doesn’t allow public money to flow to religious schools. Our state constitution, as a Blaine amendment that prohibits any public funding of religious schools and they’ve argued.

[00:39:56] The legislature has to, reject the bill they’re considering, [00:40:00] or at least exclude religious options from any program. If they’re not successful, they’re in defeating the program and the program becomes law. Then they run to the courthouse and they say the same thing. They file a lawsuit, challenging the program, saying you cannot have religious options in these programs.

[00:40:18] They have to be excluded court, shut down this program or. Expel the religious options , from the program. If the court rules correctly in Carson, that argument will be gone. , opponents of school choice will no longer be able to say our state constitution, our Blaine amendment, whatever, state constitutional provision that might be, they will no longer be able to say our constitution.

[00:40:43] Prohibits the inclusion of religious options and these types of programs, because it will be clear as a matter of federal constitutional law that a state cannot exclude religious options from a program like this. And that’s really where the kind of bigger national [00:41:00] implication of a ruling in our favor will be.

[00:41:02] It will remove this argument once. And for all that school choice, opponents continue to make an attacking programs either in the state house or in the courthouse. And legislators will finally be able to rest secure in the notion that they can pass these programs, that these programs will be legally sound.

[00:41:23] And that the inclusion of religious options is not only permissible but required. If you’re going to provide non-religious private options. So I’m in the Commonwealth. We have a new governor LEC. Yuncken new Lieutenant governor AIG as well. They’ve talked about the importance of parental choice, Virginia compared to let’s say a Florida or an Arizona, not in the same league in terms of parental choice, particularly in the private sector, had a lot to do with our constitution.

[00:41:54] So am I. Reading this or reading Intuit that if we get a favorable [00:42:00] win in Carson states, like Virginia will have an opportunity to open up their doors in new ways. And even states like Florida and Arizona, which are very mature and the choice market, they too will be able to take it to the next.

[00:42:15] Absolutely because for so long, in so many states, legislators have heard from school choice opponents, you can’t do it here. You can’t do it. In this state. We have a Blaine amendment. We have state law that prohibits funding of religious schools, et cetera, et cetera, that argument will finally be put to rest.

[00:42:34] If the court rules correctly and legislators will now be able to confidently. Adopt these programs grow these programs and know that whatever provision of state law, whether it’s a Blaine amendment or some other similar provision, that those 10 not be wielded as weapons to take, to attack these programs or to take the educational opportunity that they [00:43:00] provide the students away from those stations.

[00:43:02] . That would be a, let’s just say a nice holiday present or new year’s present to a lot of families. In Virginia, as well as the rest of the country. Well, , I don’t have any other questions, but just want to thank you.

[00:43:14] And IJ, I believe this is your 30th year and work in terms of IJ and people. When they look a hundred years from now and try to identify, how did we come to a point where we actually accepted. parental choice programs in the public and private sector as being just part of our natural quilt of opportunity.

[00:43:35] They’re going to look back and see your work. the work of IJ, the work of his founders, its supporters, and others are saying they were the ones willing to take on the fight in courts when other people did not, or did not believe they can make it work. So thank you for all you do. Thank you.

[00:43:53] And listeners, this has been, , the learning curve with Michael , Michael take care. And [00:44:00] we will, I’m sure be calling you, , when we get the verdict sometime in 2020. And my tweet of the week comes from a, former guests, Citizen Stewart. And what Chris said on December 10th is quote. Charter school teachers are more diverse than traditional public school teachers. That in fact is a fact, the teaching, core is more diverse than the traditional public school systems.

[00:44:29] I would say the same is true for the principal core. So Chris, thank you for the. Yeah, he’s always really good at like, I like reading Chris’s tweets first thing in the morning to remind him, so what we should be talking about and why we do the work. So excellent stuff. All right, Gerard, do you know that this is our last show together of 2020. we’re going to take a little hiatus. I know that you are going to eat very healthily and you are right on track with that healthy diet, but [00:45:00] I’m looking forward to lots of Christmas cookies.

[00:45:02] It’s also girl scout cookie season, which is kind of tragic. I mean, such timing. I’m wishing you and yours, such a wonderful holiday season, , your card is beautiful by the way, your holiday card mine’s in the mail. I can’t say as nice as yours. Yes. It’s really, really courageous photo of your family, but wishing our listeners and wishing you such, , happy holidays, , Merry Christmas.

[00:45:24] If you celebrate it, Hanukkah is already passed and just a wonderful new year. And I think that I have to say I, for one Gerard I’m feeling quite optimistic. About 2022 on so many levels. I think Michael has just given us reason to be optimistic. I think we’re coming out of, what’s been a tough couple of years for all of us, and we’re getting used to this new life as normal.

[00:45:45] And I’m just so grateful to you, my friend, for being able to have this conversation every week. despite the few weeks we take a vacation and to our listeners for continuing to tune in, because if they didn’t do that, [00:46:00] we would just be talking to what we’re talking to each other, but I don’t know, talking to no one.

[00:46:06] So have a wonderful one, Gerard, same to you. And, , my new year’s wish for all of you is that we are healthier, safer, and more content to each other. And Gerard, we are starting off the new year with a bang because we are going to be speaking to the incomparable, Barry Weiss.

[00:46:24] I’m really, really excited about it. And what a great way to kick off 2022 until then. Stay healthy. Wish you great happiness and a wonderful ringing in of the new year. Cheers. Cheers.

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