Notre Dame Law Assoc. Dean Nicole Stelle Garnett on Catholic Schools & School Choice

[00:00:00] Albert Cheng: Hey, everybody, this is Dr. Albert Cheng co hosting this episode of the Learning Curve podcast. So welcome to another one. And with me this week is Alisha Searcy. As usual. What’s up, Alisha? Hello, Albert. How are you? Hey, doing well. Happy School Choice Week and happy National Catholic Schools Week.

[00:00:42] I love that for both of those celebrations. That’s right. Yeah. I’m talking about, you know, educational opportunity as we are expanding that as we do a lot on this show. And actually speaking of which we’re going to have Nicole Garnett this week, who’s Dean at the law school of Notre Dame to talk to us about school choice, Catholic schools in particular.

[00:01:03] So we got an exciting show today.

[00:01:05] Alisha Searcy: Absolutely. And of course, Catholic schools and choice and private school choice and all of the things are. I think top of mind for a lot of people, so it’s going to be a very important conversation.

[00:01:17] Albert Cheng: Yeah. Well, let’s get to the news and actually let me just start with mine since we’re talking about school choice.

[00:01:22] And so, you know, the story I want to share, and this is the latest in Texas, um, as we’ve talked about often on the show, just politics around school choice in that state, Governor Abbott and what he’s done. In the past election cycle to kind of push a school choice legislation. Well, it looks like there is a bill Senate bill two that would deliver a universal school choice program.

[00:01:47] You know, hearings around it are going to start in the next couple of days. If unless they. Start already. According to this bill, Alisha, 10, 000 for every family to help pay for private school tuition. I think there’s also, according to the article that I’m looking at from the Austin American Statesman, 2, 000 also for homeschooling families if they want to kind of exercise choice that way.

[00:02:08] So anyway, I’ll just throw that article out there. This is the latest in the saga of passing school choice in Texas. So I’m gonna just update readers and I don’t know if you you’ve had a chance to look at this or have any thoughts about it.

[00:02:24] Alisha Searcy: Well, I have not seen this article in particular, but of course because of all the talk of ESAs and vouchers It’s been a conversation and i’ll just say generally speaking.

[00:02:33] I understand parent choice I’m a, you know big advocate for it believe parents ought to have options for their kids, especially low income parents But as a matter of public policy, i’m not a voucher or ESA person So it has been interesting for me to watch In Texas, as the example where the governor has spent a lot of money, a lot of resources in Republican primaries, and I think we talked about this a few years ago, you know, to get Republican legislators elected.

[00:03:02] The fact that it’s Senate Bill 2 tells you that it’s one of the very first bills that were introduced, you know, when session started. And so. I think at the end of the day, I’m guessing this is going to pass because they’ve already invested a lot. They likely have the votes. I think what’s interesting to point out too, though, is that not all Republicans are on board either.

[00:03:23] Some Republicans, particularly rural Republicans who are not fans of vouchers and, and ESAs. But at the end of the day, what I want is for parents to have options. And so. What I recognize is that many of these things are passing across the country. Georgia passed an ESA last year. I think Tennessee is literally debating it this week in a special session.

[00:03:45] If they’re going to pass, I hope that there’s some accountability and that we’ll be able to track how dollars are spent. You know, they’re taking some nationally norm tests so we can see how students are performing. And most importantly, that they’re not discriminating in terms of who they will accept into the schools.

[00:04:03] Albert Cheng: Yeah, well, all important issues to think through and observe as we think through, you know, just this ultimate goal of expanding educational opportunities for our students. Speaking of educational opportunity, you saw an article about our boys.

[00:04:19] Alisha Searcy: Yes, which was very striking in a lot of ways. The title is why school isn’t working for many boys and what could help.

[00:04:25] And this story comes from Ed Week and I would really encourage those of us in education to really read it. As many people may know, you may not know, I actually ran a network of all girls public charter schools a few years back. And so I have some interest in what it means to do or deliver single gender education.

[00:04:47] And the reason for that is the science tells us that boys and girls learn differently. And so in this article, it’s essentially pointing that out. And even across racial lines, boys just learn differently. A lot of the teachers. That they surveyed and they looked at research and a bunch of other sources, you know, boys don’t sit still as they like to say, and you have a little boy, I believe, and yeah,

[00:05:12] Albert Cheng: two little boys that are pretty active.

[00:05:16] Alisha Searcy: And I have one as well. One of my bonus babies is a six year old boy and he is all boy, as we like to say. And so I think this article is important as it again, points out like the things that we can do. Something that was very compelling to me. There was a teacher quoted in the article and it talks about how in her early days of being trained as a teacher, you know, they essentially learned how to give direct instruction right where the teacher is standing up in front of the room and the students will sit and listen, and she recognized that that style of instruction isn’t working.

[00:05:51] And so she needed to do. something different, particularly when it comes to boys. And so based on the research and figuring out what to do, she runs her classroom with incorporating music, movement, guided play, a choice time into the curriculum. And she’s found a lot more success again, particularly with boys, because now they have kind of some built in time to move around.

[00:06:15] The article talks about how boys tend to be less focused in class. They don’t have the same kind of intrinsic motivation that girls do. What I also thought was interesting is that boys tend not to take on as many leadership roles as girls do. And so that was of course, interesting because when you think about.

[00:06:34] A lot more men in leadership as adults, right? Yeah, yeah. Certainly a lot more men in leadership. So something happened. I guess they leave their primary and secondary education experience and then, you know, go into leadership. And so, again, I think this is really important and it points out some things that you can do, you know, how you can motivate boys to want to be.

[00:06:57] more involved and engaged in their education and how they need more movement and things like that. So that’s what the article was. And I think we need to, we always have this conversation about the need to transform, you know, how we’re delivering education period,

[00:07:12] Nicole Garnett: not

[00:07:13] Alisha Searcy: just for boys, but obviously for girls as well, how it’s being delivered.

[00:07:17] The use of technology, all of the things. So I think this just adds to the body of research, if you will, about the need to reimagine what education in our classrooms.

[00:07:27] Albert Cheng: Yeah, no, thanks for sharing that. And yes, certainly, you know, the evidence is piling up. We don’t do very well with our boys. So definitely lots to think about, actually.

[00:07:35] In fact, I’ll just, you know, add one more bit of commentary. You know, when you, when you were. Talking about that article, it reminded me, I, I actually, you know, we had James Stigler, UCLA professor on a while back talking about mathematics education. And what he’s done a lot of research in is in comparing Asian schools to schools in the U S here.

[00:07:52] And, you know, so I actually picked up one of his books and, you know, one of the fascinating things that struck me was that in schools in Asia, according to his data, which I don’t know if it’s, I think it’s still true. There’s a ton more recess. I was actually surprised to learn. I thought schools in Asia really drilled their, their students a lot, but it, uh, according to his data from a few years back, they structured in a lot of time for kids to run around and I wonder if there’s some point certainly for boys, but

[00:08:19] Alisha Searcy: yeah, you know, I don’t want to belabor this point, but I did spend about 10 days in China.

[00:08:25] studying schools in different parts of the country. And I found it to be very interesting to your point. Like I remember walking on one campus and all of the students were outside, you know, on the court, they were doing like a kind of cultural type dance. And that was a part of the ritual for the morning.

[00:08:44] Then we went into classrooms and they were going through an exercise where they were rubbing their eyes, kind of giving their eyes some, you know, relaxation and rest from the day. So I got the sense that not only do they have a lot more recess, totally different subject, but they also place a much greater value on education and educate tours in terms of, you know, celebrating educators and how highly qualified and educated they need to be.

[00:09:12] So there’s a lot to learn about, and we know this from other countries. I don’t think we can completely replicate what they do because of the cultural differences and some of the historical, you know, facts, but in general, I think there’s some things to learn and certainly a little bit more recess could be helpful for our baby.

[00:09:29] Albert Cheng: Yeah. Well, lots to talk about, but we got to get on with our show and talk about Catholic schools and school choice. And coming up on the flip side of the break, we’re going to have Nicole Garnett on the show. So stick around.

[00:09:53] Nicole Garnett is the John P. Murphy Foundation Professor of Law at Notre Dame Law School, where she also serves as the Associate Dean for External Engagement and directs the Notre Dame Education Law Project. In addition to dozens of articles on these subjects, she is the author of Lost Classroom, Lost Community, Catholic Schools Importance in Urban America, and Ordering the City, Land Use, Policing, and the Restoration of Urban America.

[00:10:19] She clerked for the Honorable Morris S. Arnold of the U. S. Court of Appeals for the Eighth Circuit and for Associate Justice Clarence Thomas of the Supreme Court of the United States. Before joining the law school faculty in 1999, she worked for two years as a staff attorney at the Institute for Justice.

[00:10:36] Garnett received her B. A. with Distinction in Political Science from Stanford University and her J. D. from Yale Law School. Nicole, it’s a pleasure to have you on the show.

[00:10:46] Nicole Garnett: Thanks so much. Thanks for having me. Happy to be here.

[00:10:50] Albert Cheng: It’s National Catholic Schools Week, so I’m going to let you give the opening remark to why Catholic education is so important to the lives of our families, school children, and our communities.

[00:11:03] Nicole Garnett: I think for many, many reasons, but I mean, I would start by saying, you know, I think Catholic education has, has been one of the most effective anti poverty interventions in the history of the world. Catholic schools have lifted generations out of poverty, formed citizens and put them on a path to lifelong success.

[00:11:22] That’s sort of the utilitarian argument. I think there are other arguments, though. Baz Moreau, who founded the Congregation of Holy Cross. which founded where I teach, Notre Dame, said that Catholic schools educate, you know, minds and hearts. And form people in the image of Jesus Christ. So I think that it matters too, because we have a, like all Christian religious schools and other traditions as well, have an understanding that what we’re doing is not just educating, but also forming young people.

[00:11:54] And an understanding that the people entrusted to our care. are formed in the image and likeness of a loving God. So we have, we have the duty and obligation to bring them to their full potential to form useful citizens of this world and joyful citizens of the next. And I think those things are critically important.

[00:12:12] Catholic schools are also more affordable than many other private options. And as the footprint of parental choice expands affordable, high quality, private educational options.

[00:12:27] And finally, I’ll just say that, you know, people say when you ask them why they choose their kids schools, what matters often religious and moral formation takes precedent over other things that maybe more elite folks would say, like test scores. So Catholic schools do a great job at educating kids, but they also provide that character formation, moral formation, religious formation that parents care so deeply about.

[00:12:49] Albert Cheng: Yeah, absolutely. And let’s dig into some of these ideals that you just mentioned. You mentioned becoming Christ like as, as one. Certainly I’m familiar, I don’t know if you are, Catholic schools that are classical and kind of liberal arts in their tradition, you know, a commitment to the true, the good, the beautiful.

[00:13:04] Um, So how is Catholic identity? I mean, you, you were talking about what parents want, religious, moral formation. So how has Catholic identity best formed by these ideals and what are steps educators need to follow to realize those ends in the lives of our young people?

[00:13:20] Nicole Garnett: It’s kind of hard to measure. I think that sometimes the bishops perhaps think that what it means is Catholic identity means that kids do well on tests about the catechism or something, but it’s much deeper than that.

[00:13:35] I do think that you’re correct. It’s sort of the true, the good and the beautiful, the, the understanding that we have this beautiful tradition in our own faith and also in the Western tradition. Then we need to, that, our education needs to be imbued with that, to pass that on to young people. You read these stories about how kids are coming to college and they don’t know how to read a book.

[00:13:56] They’re not reading books anymore at all. Ideally, all the Western tradition, the classical tradition is reflected in all Catholic schools. I, I think, you know, that’s not the case. Certainly there is a classical education movement, which Catholics are taking a part. In, but most Catholic schools probably look curricularly a little bit too much like public schools.

[00:14:19] And I think there should be some perhaps more attention paid if not to making them. Not every school can be a classical school, but really to focusing on. The content of the education, not just the sort of dewey skills, like education that gets pushed on so many kids in the United States. So I think we have a way to go in many of our Catholic schools.

[00:14:42] Catholic schools. Of course, as you know, we’re often formed. I mean, the history is to educate working class people and make them good citizens. And that might have seen someone intention with a classical tradition. So I think that we can learn a lot from the classical. The growth in the classical model, the demand for liberal arts curriculum, and you know, the critiques of curricular content more generally from people like Ashley Berner, who say we’re, we’re not doing enough to focus on what is being taught.

[00:15:12] We, in the United States, we tend to focus too much on how things are taught, how to think critical thinking and not the contents of the curriculum. Like all those things, which is to say that, you know, Catholic schools aren’t perfect. They’re beautiful in many ways, but they have things to learn from others.

[00:15:26] Albert Cheng: You’ve remarked on the historical record there of, of their success. And so actually, let’s get into that a little bit more. The book, a few years ago, I should, I don’t know, it feels like time flies. Uh, Lost Community. Not a decade

[00:15:37] Nicole Garnett: ago.

[00:15:38] Albert Cheng: Yeah, it’s 10 years already. Lost Community, Catholic Schools Importance in Urban America.

[00:15:44] And so in it, you outline 600 Catholic elementary and secondary schools have closed. And you examine the implications. of those shifts, particularly in urban settings. So talk about the main arguments of your book and what might perhaps be done perhaps policy wise to expand, you know, access to these kinds of educational options.

[00:16:08] Nicole Garnett: Our book is about, was about what happens to urban neighborhoods when Catholic schools close. It was really about Catholic schools as community anchors, not so much about Catholic schools as schools, although we believe they’re related. So the book examines crime data and other data on social cohesion, social trust, social capital from surveys in Chicago and Philadelphia.

[00:16:30] And we find that when early Catholic schools close controlling for everything, the neighborhoods become less socially cohesive and more dangerous. And we don’t really know why we have some ideas. But so that’s that’s what the book is about. But the book also talks about sort of the Catholic school.

[00:16:47] Miracle, the Catholic, you know, the Catholic school lifeline, social science evidence, some of it quite dated now, but the Catholic school kids controlling for demographic variables that kids in Catholic schools do better academically, they’re more likely to graduate from high school, go to college. form stable relationships, all of these things that until really the advent of charter schools, particularly for urban poor kids, Catholic schools were often really the best educational options for them.

[00:17:16] And maybe the only certainly the only alternative affordable alternative to to public schools, which often failed them now that shifted. So, Heartbreakingly, I just read. That the Archdiocese of New York is closing at least three more Catholic schools this year, including one that has 450 kids in it in the Bronx.

[00:17:38] Albert Cheng: Oh boy, yeah.

[00:17:38] Nicole Garnett: And so something needs to, to be done to save these community anchors and these critical education initiatives. I mean, my answer, it’s not a complete answer. There’s some internal soul searching that we were just talking about. The problem needs to happen as well. But I think access to these schools is really critical and for many families.

[00:17:59] The tuition makes them prohibitively expensive, and we’ve lost the free labor force and the religious sisters that teach in our schools and tuition is increasing. So parental choice and education programs that are now available in over 30 states obviously help level the playing field for Catholic schools and help them to stabilize financially so that they can keep their doors open.

[00:18:21] I think that should be a reality in every state. I think we’ll get. Soon to over 50 percent of kids who are eligible to participate in some of these programs in one program or another. One hopeful thing is we may get a federal tax credit program soon, which would make school choice a reality in every state, which would be awesome.

[00:18:40] So that’s, I think, policy wise, we need to do that. I mean, I will say, honestly, you know, like all educational institutions, schools included, my school with Notre Dame included, you have to constantly be asking, how can we serve kids better? So financial. Stability and financial resources that would come with parental choice would be an important first step and will help stabilize enrollment and help keep these doors open.

[00:19:04] But it’s, it’s not the only thing that needs to happen. I mean, I think Catholic schools have been slow to innovate as we see other sectors. I mean, there are classical schools, but, you know, you think about all of the different kinds of educational innovations that we see in place of trial choice, like Florida work.

[00:19:21] we were just together, you know, micro schools, learning pods, dual language schools, online schools, classical schools, Catholic schools have a very 1950s model. And I think that if you inject competition and through the money, that when the money, those kinds of. Options will be attractive to parents too, so there has to be a both and, an internal and an external push for, with respect to Catholic schools.

[00:19:48] Albert Cheng: Yeah, I think that’s right. You know, I often talk about, you know, what do we need in an ecosystem to really make sure, you know, educational options are there and improving for parents and There’s lots to that ecosystem. So, well, let me pivot a little bit. I guess we’d be remiss if the listeners didn’t get a chance to have you comment on your legal expertise in talking about school choice.

[00:20:08] Let me start with this question. One of the kind of central jurisprudential issues or battles really, um, that have been enduring here in this, in this country is whether the U S constitution is a living document or whether we should have more of a kind of originalist. So give us a brief overview of those two competing legal philosophies, and then talk about how that issue, why is that salient for school choice, particularly when we think about Blaine amendments, religious liberty, and that sort of thing.

[00:20:40] Nicole Garnett: Yeah, so I’m an originalist. I think I’d be against the idea of, of being a publicist to get really into the leaves and what they call it an original public meaning or regionalist, which is the originalists of my elk believe that words in the constitution should be interpreted. as they were understood when they were adopted.

[00:20:56] Not a, you know, not like what the founding. Father’s intent was, but what did the words mean to the men who ratified them or men and women later on with respect to later amendments? So, so that’s originalism. I mean, there are alternatives, you know, you mentioned living constitutionalism is more policy focused.

[00:21:14] The constitution needs to evolve to change with the times. I think that’s a recipe for making stuff up. I know that sometimes, you know, the times certainly change and we have to confront new problems, but the best way that we can do that is by analogizing to older ones. So I’m an originalist. And that’s sort of the jurisprudential debate in a nutshell now, as far as the originalism and the meaning of the, the 1st amendments, religion causes there.

[00:21:38] There are two, or one with two parts. The First Amendment says Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Establishment Clause, for many years, It was interpreted in, there’s an old test called the lemon test, which has now thankfully been destroyed.

[00:22:00] It was sort of separationist, so it was, religion was seen as kind of suspect that the constitution was interpreted as meaning that government was really supposed to take hands off religion, not provide resources to religious institutions, to religious, Kids in religious schools. And that was a major impediment to the expansion of parental choice in education.

[00:22:21] Even before those cases, as you mentioned the Blaine Amendments, many states enacted their own constitutional provisions. These, they’re called Blaine Amendments, that prohibited the funding of quote unquote sectarian schools. These have a distinct and well recognized anti Catholic history. And so those were also seen as blocking the expansion of parental choice.

[00:22:41] So in 2002, the Supreme Court says the establishment clause does not prohibit school choice. Religious schools can be included among the options available to parents. So that’s great news. 20 plus years ago, and in 2022, almost 20 years of the day, we have two really important cases that come down that.

[00:23:01] are critical. One is called Carson versus Macon. And what Carson versus Macon says is that the old separationist idea had it exactly backwards. So the constitution demands neutrality toward religion, which means if the government chooses to enlist private entities. To serve public purposes, it can’t exclude religious ones, and it can’t exclude religious conduct.

[00:23:26] So the Constitution, the Free Exercise Clause, the court says in Carson, prohibits the government from discriminating against religious institutions or religious activities or conduct in public programs. So that means, for example, in Maine, they had a voucher program and they’d exclude religious schools, and the court says that’s unconstitutional.

[00:23:45] And within a day or so of that case, a different case came down, your listeners may know it as the praying coach case, uh, Kennedy versus Bremerton school district. And in that case, the court says the lemon test, this old separationist test is not good law. It’s a historical and unworkable, and we haven’t used it for a long time.

[00:24:06] And really the right way to interpret the constitution is this through an originalist lens. So in determining what the establishment clause means. We should look to history and tradition, and in that case, the court sort of puts down a couple of markers, including coercion. So, if the government activity isn’t coercive, we’re going to work through what that means, particularly in the public school context.

[00:24:29] But if it’s not coercive, then it’s not unconstitutional. And certainly providing resources to parents to choose educational options, one of which are, you know, religious schools, is not coercive. It’s the opposite of coercive. So, those two pieces together. Really clear the path constitutionally for the expansion of parental choice.

[00:24:50] The other really important thing is that they also make it impossible for the states to rely upon their Blaine amendments to block parental choice programs because it’s a prior case called Espinoza versus Montana, but Montana had said, oh, we can’t have school choice because our. Constitution, our Blaine Amendment prohibits us from having school choice, and in that case, which was two years before Carson, the court says that’s actually religious discrimination, and your Blaine Amendment is not sufficiently weighty to justify a free exercise violation.

[00:25:20] So, in most states now, they’re really. It isn’t a constitutional impediment related to religion, to the expansion of parental choice. And there’s also, you know, the First Amendment is a sword now, not just a shield. It says we can, in fact, make you include us. If you choose. States do not have to have a school choice program, but if they choose to have one, then they must include religious schools.

[00:25:44] Albert Cheng: Yeah, I want to hear a little bit more. I mean, you mentioned the Espinoza case, so let’s get into that. But before I do, I think maybe, you know, just to offer a little commentary, you were talking about the Lemon Test, and perhaps my, one of my all time favorite rhetorical flourishes is by the late Antonin Scalia, when he writes, you know, compares the Lemon Test to a late night ghoul.

[00:26:03] So I just want to 11 test. Yeah, readers to go find that and just read it because it’s fun to read.

[00:26:10] Nicole Garnett: He shuffles, he gets after repeatedly being buried, he gets up and shuffles abroad and scares the small children.

[00:26:17] Albert Cheng: Yeah, that’s right. That’s right. I think it’s about what the justices use their pens to stab it to death or something, but the name, we had

[00:26:25] Nicole Garnett: a, uh, Brief in the Kennedy case where we were looking for examples of the lemon test, just wreaking havoc.

[00:26:31] And in this case, it was in the public school context. And we found one story where a little girl was. Asked to do an all about me poster, and she had to list her hero, and she chose God and her teacher, her teacher told her that she was not allowed to choose God in a public school. So she had to pick a different hero.

[00:26:50] That’s not the rule, by the way. It never was. But anyway, she, uh, she picked Michael Jackson.

[00:26:54] Albert Cheng: Uh, quite different. But, uh, well, hey, let’s get back to our legal discussion. So we’re talking, I mean, you’re mentioning Espinoza just a bit ago. So say more about that case. I mean, you were talking about how the decision in the Espinoza case really is undermining state blame amendments.

[00:27:11] So explain to readers how that works.

[00:27:15] Nicole Garnett: Right, so after this case called Zellman versus Simmons Harris, which held that the Establishment Clause, Federal Establishment Clause, was not a barrier to having religious schools be included among the options available to parents in parental choice programs, opponents of parental choice would fall back on the state constitutions, and they would say, Well, you know, that doesn’t really matter because our state constitution has this Blaine Amendment.

[00:27:38] It requires more separation between church and state. And even if the federal constitution allows this, our constitution prohibits it. And this is really goes on, you know, it takes almost 20 years to resolve the question. In these states, the argument would go something like this, well, there’s a play in the joints, people always talk about the play in the joints, that there’s a, there’s a space between what the Establishment Clause prohibits and what the Free Exercise Clause requires, so you can have a little bit of religious discrimination in the states, especially if you have a Blaine Amendment that requires religious discrimination, and so this goes, this Montana case, Espinoza, Montana passes a very modest school choice program.

[00:28:18] It was like a tax credit up to 500. It was very little money. But anyway, the Supreme Court of Montana invalidates the program and says, well, we can’t have this because of our Blaine Amendment. Our Blaine Amendment, unlike the federal constitution, will not allow any aid flowing to religious schools, even indirectly through parental choice.

[00:28:35] So we’re just going to throw the whole thing out. So this goes to the Supreme Court. And the argument is the Montana Supreme Court’s inclusion is really based upon religious discrimination and the court agrees, the Supreme Court agrees and says the reason you invalidated this program is because you were trying to discriminate, you wanted to avoid having to fund religious schools, that’s religious discrimination and that’s unconstitutional and critically important in that case it also says, and we know you have this Blaine Amendment, but The federal free exercise clause, the non discrimination neutrality mandate of the free exercise clause is superior, supreme to your state.

[00:29:14] Interest and so, therefore, you cannot fall back on this blame amendment argument in order to justify this discrimination against religious schools, religious conduct and the parents choices. Send their kids to religious schools. It’s an important victory both because it makes clear that the neutrality mandate of.

[00:29:36] The Constitution demands neutrality toward religion. It means that the government can’t favor or disfavor it. And a lot of these cases were holding that religion could be disfavored. It’s also important because it makes clear, which should have been clear to any And once you get there, you cannot fall back on the state constitutions as a justification for what would otherwise be in constitutional conduct because of the supremacy clause, the federal constitution is supreme.

[00:30:03] So that’s great. It takes away Blaine Amendment arguments in most states with Blaine Amendments. It’s hilarious to me, not hilarious, funny, not funny, but many state legislators don’t seem to know that. I don’t know how many people have told me conversations, but we have a Blaine Amendment. I’m like, yeah, okay.

[00:30:19] I mean, it doesn’t mean anything anymore.

[00:30:24] Albert Cheng: Yeah. Let me ask you two more questions. And one, we’ll just one more, you know, kind of legal question, and then we’ll get back to Catholic schools. Past few years, I’ve been seeing lots of major legal wins piling up that are favorable for school choice and religious liberty in schooling.

[00:30:42] So, this is a two part question. One is, what are the next legal battles? And then, you know, a related question is, you know, how might opponents of school choice and religious based education, how might they strike back legally, so to speak?

[00:30:57] Nicole Garnett: Yeah, so I’ll take your last question first. I mean, the fact that the Blaine amendments are taken off the table leaves opponents of school choice with fewer good arguments, but they keep making bad ones.

[00:31:07] So there is litigation in the state courts about whether school choice violates provisions of state constitutions that are unrelated to religion, but are related to education. So one common argument is state constitutional provisions that require public schools prohibit alternatives. That doesn’t make any sense, but to me, but it is being litigated right now in a bunch of state courts.

[00:31:32] So there’s that another area, a few state lane amendments to prohibit funding of all private schools. So those are probably still enforceable, but there was a case, a disappointing case in South Carolina recently, the South invalidated an education savings account for poor kids using its so called religion neutral blame that prohibited the indirect funding of.

[00:31:56] Private education and the court found that an education savings account was prohibiting the direct funding of private education. They said the essay was a direct funding, which is actually ludicrous. So there are those state law claims that are continuing to percolate in the lower courts. Another huge area of litigation is going to be about the regulation of private schools participating in.

[00:32:19] Private school choice programs. So far, most private school choice programs have been quite light touch in the regulation, but some regulations can raise religious liberty concerns. For example, after Carson, the court held in Carson, that Maine could not exclude religious schools from its schools.

[00:32:43] They included things like you cannot hire and fire for mission. You may not prefer co religionists and admissions. And my very favorite was if you teach religion, you have to let the students express dissenting religious views in the classroom. Now, These have all been, most of the religious schools in Maine just didn’t, decided not to participate and sued instead.

[00:33:06] That is currently pending in the First Circuit. So those kinds of like regulatory strings questions are going to be big. There’s the question about whether charter schools, the Constitution requires charter schools. to opt into being religious if they want to. The court is currently considering a surrepetition that I’ve been involved in, in the case in Oklahoma about that.

[00:33:27] And then there’s just, I think a whole bunch of, one of my big projects now is just to go find programs that violate the first amendment in the states. There’s hundreds of them. There’s just a whole bunch of, I would call it cleanup, constitutional cleanup. You know, there’s so much lemon. Think and Blaine think that’s baked into state and federal statutes and programs, for example, all federally funded services for kids in private schools have to be secular.

[00:33:52] And so that’s just hundreds of millions of dollars, but it just a lot of the special ed services and states are limited to secular education. I just have a report coming out. I just had a report come out this week about pre K programs. A lot of pre K programs prohibit funding any religious instruction.

[00:34:10] So there’s just a lot of things that are almost certainly unconstitutional that either states are going to have to reform their laws and sort of catch them up to the modern doctrine or there’ll have to be lawsuits. There’ll probably be a little bit of both. These issues aren’t going away. They’ve just kind of shifted from focus.

[00:34:27] The final thing I will say is like, so the cart in these cases, Espinoza Carson says The state does not have to have a private school choice program. It doesn’t have to fund religious schools. It’s only if it chooses to fund some private schools, it must fund them all. I can’t discriminate because some are religious.

[00:34:48] So, you know, that means a lot of battles will remain political. Some states are gonna have a harder time. Getting private school choice than others. So that’s why things like fighting about a federal tax credit is really important because New Jersey is not likely to get school choice unless it’s a federal program.

[00:35:05] Albert Cheng: Thanks for all that legal commentary. And so I do want to point just on a related note to remind listeners, we do have an episode about the recent ruling in California. Yeah, that was a great case. Yeah, ruled in favor of, I guess it’s the plaintiff in this case, who was denied service, you know, service for their kids with special needs, I believe.

[00:35:23] Nicole Garnett: You know, there was a recent Wall Street Journal editorial about a similar case where this little autistic Jewish kid was privately placed in a Jewish school and They were taking 30 percent off the top of the money that he was owed because they said that would be the amount that would go to religion, but his parents convinced the Administrative law judge or whatever to give him a hundred percent and now the city of New York The New York Public Schools are suing the parents to get the money back.

[00:35:48] Those kinds of issues are really It’s going to take a while to clean that up, I think.

[00:35:52] Albert Cheng: Yeah. Well, you know, thanks to your work and then many others I know that are doing this kind of cleanup. Well, let me ask you one final question, just to come back to Catholic schools. Not only do we have these legal rulings that are favorable for school choice programs, but many states are now establishing or expanding private school choice programs, tax credits, education savings accounts, lots of states going to kind of a universal eligibility arrangement.

[00:36:19] And so talk about how these developments could potentially impact Catholic schooling. And what would your, maybe your parting words for Catholic school leaders, you know, what would you, what would you want them to know in light of these developments?

[00:36:32] Nicole Garnett: Yeah, so it’s just been such a wild ride when I was a baby lawyer, I was litigating help defend the first voucher programs in the United States that included religious schools.

[00:36:41] And, you know, we’re talking twenty five hundred kids then, and now we’re talking a million kids participating twenty million eligible. So it’s been a wild ride and it’s really gratifying and we’re gonna get more, we’re gonna go fifty percent eligibility soon and I guess I would say two things that I would.

[00:37:00] You know, three things to our Catholic leaders. The first is that school choice is required by Catholic social teaching because parents are the first and best educators of their children and the catechism makes quite clear the just society enables parents to choose their children’s schools, including giving them the resources to do.

[00:37:19] So we should be fearless advocates. The second point is, parental choice is not a panacea, it’s hard work. We’ve labored so long in the trenches, arguing about how we need resources, and how we were disadvantaged by not having them. Sometimes I think, I fear that we think all of our problems are money problems, when there are lots of multifaceted challenges facing all schools, including Catholic schools.

[00:37:43] So, so choice isn’t a panacea is my second point. And the third is just get ready. Be ready, be nimble. And get ready and innovate. Don’t just be reactive. Texas may get school choice in the next couple months. And I, you know, there’s a lot of kids in Texas, a lot of Catholic kids in Texas. 11 percent of all school children live in Texas.

[00:38:05] The Catholic school leaders there, hopefully are thinking ahead about how are we going to recruit families? How are we going to educate kids that may have fallen behind academically? How are we going to? Educate kids that may not have English as their first language. How are we going to take this money and change the lives of children and make our schools better than they already are?

[00:38:25] So, yeah, so that’s my third thing. Be ready.

[00:38:28] Albert Cheng: All right. And then with that, we’ll wrap it up. Those are wise words for any school leader, even if you lead an association. So take that to heart. So Nicole, thank you for your time and lending us your expertise and wisdom.

[00:38:41] Nicole Garnett: Thanks so much. I’m so happy to be here.

[00:38:54] Albert Cheng: Well, Alisha, you know, thinking through all the legal issues around school choice is not my forte. I guess I know enough to be a little bit dangerous, but yeah, Nicole Garnett. I mean, that’s her, that is her thing. So that was fun to listen to and learn from her. Definitely. Well, this is going to bring us to the end of our show.

[00:39:13] And so let’s just close out first with the tweet of the week. This one refers to an article from education week. The headline for this article is CTE grows in popularity among students, but teachers are tough to find. And yeah, I kind of had a sense that this was a, an issue on the ground. I know, you know, we’ve talked about a bunch on the show, CTE and using those kinds of programs as a way to provide students with.

[00:39:39] Sufficient education and training for a life after school. Hey, it looks like finding teachers is a tough thing. So check out that article. There’s a lot of food for thought and things to think through there. For sure. Well, Hey, Alisha, thanks for being on the show as always. This was fun. Great to be with you as always, Albert.

[00:39:58] Yup. And you know, we’ll see you next week, Alisha and I for our interview with Nell Ervin Painter, who is one of the leading historians of the United States. And she is going to. Join us to talk about Sojourner Truth, one of her books on it. Sojourner Truth, a life, a symbol, and we’ll kick off Black Hears Three month with that.

[00:40:19] So hope to see you then and until then be well. See you. Hey, it’s Albert Cheng here. And I just want to thank you for listening to the Learning Curve podcast. If you’d like to support the podcast further, we invite you to donate to the Pioneer Institute at pioneerinstitute.org/donations.