EdChoice's Leslie Hiner on School Choice Litigation

The Learning Curve Leslie Hiner

Alisha Searcy: [00:00:00] Welcome back to the Learning Curve podcast. I’m your co-host, Alisha Thomas Searcy, and joined by our other co-host, Dr. Albert Cheng. How are you, Albert?

Albert Cheng: Hey, Alisha. Doing all right. Summer’s here. I think everyone knows that I’m in a little bit of transition here.

Alisha Searcy: Yes. How’s it going?

Albert Cheng: Our newest institution.

Oh, moving’s a lot of work.

Alisha Searcy: It is, especially across states.

Albert Cheng: That’s right. That’s right.

Alisha Searcy: Well, I hope that it will be done soon, and I’m sure all will be well when it’s all over.

Albert Cheng: Yeah, well, thanks for saying that.

Alisha Searcy: Sure. Probably doesn’t feel like that right now, but it’s coming. It’s coming.

Albert Cheng: Yes. Yes, it is. We’re holding out.

Alisha Searcy: [00:01:00] Yes. Well, we’re gonna have an interesting conversation today. I think everybody kind of knows where I am on vouchers, but I’m looking forward to, um, talking to Leslie Hiner, who we’ve known for a long time. But before we get to that, it’s time to talk about some articles that we’re seeing out there. Would you like to go first?

Albert Cheng: Sure, yeah. This one caught my eye. This one’s from Inside Higher Ed, although I think there’s a lot of other outlets that have covered this development, at least the article that I’m looking at. The headline is, “Hundreds of Math Professors Ask the University of California to Bring Back the SAT and ACT Requirements.”

Hmm. I know we talk quite a bit about testing and measuring student progress and, I mean, this is all bundled up, you know, measurements. But here, you know, this is, I mean, the University of California system relaxed those SAT/ACT testing requirements for applicants. And so there’s an open letter from more than 800 professors in the University of California system calling on that system to reinstate it, and they’re citing [00:02:00] things like inadequate math preparation among lots of the students that are coming into their classes now.

And so, you know, we want to give students an opportunity, but there’s some limit to that too, you know, where, you know, if students just aren’t ready, I don’t know that we’re doing them a great service. And so, you know, the SAT and ACT, regardless of all the debate that’s around that testing, we do need to have a good sense of, I think, of where students are, whether they’re ready for college work.

And at the same time, you know, if you want to have a discussion about post-secondary access and the role of testing and all that, you know, we can also have that too. But- Mm-hmm … I think we’re seeing one of the consequences of that policy decision. So anyway, I just want to flag our listeners to check out that latest development.

Alisha Searcy: That’s really interesting. You know, you mentioned two conversations that we could have. I think the third one to that is why aren’t kids prepared when they come out of school?

Albert Cheng: Yeah, that’s right. That’s right. That’s right.

Alisha Searcy: It’s not the SAT’s fault. I do appreciate the point, and I think we’re … Interestingly, we have a lot of conversations about the accountability piece, right?

And related to that are assessments within the [00:03:00] K-12 system, and we know, to your point, that we need some assessment. Certainly, there are some challenges for people with SAT and ACT. Some people are not good test-takers but still do just fine in college. And so I think there’s something to be said, to your point, that there has to be some assessment.

I mean, it’s pretty s- outstanding that you have 800 professors who’ve signed onto this letter, so I’m guessing something’s going to change soon. So we’ll see. Well, I want to lift up an article that I thought was really interesting. It’s in my local newspaper, The Atlanta Journal Constitution, and it talks about how a DeKalb school district, which is in the metro Atlanta area, Albert, is hiring a recruiter, a recruiting company, to bring students back to public schools.

And so at first, I thought, “Well, that’s cool. I like the fact that a public school system wants students back.” You know, I think that there’s nothing wrong with a little competition [00:04:00] across school systems to bring students back. But then as I’m reading more in the article, I’m recognizing that this particular company works in 27 different states.

It might be more about revenue than it is about wanting students to come back, and it’s less about, from a parent perspective- How about having a high quality product that you’re offering that has options in terms of the type of schools, the type of programs that are available for different types of learners, different types of interests that students may have?

So while I appreciate the effort to find out why families are not enrolling or going to private school or other places, I’m very interested to see what the district will do with the data that they collect. Hearing from parents, “Well, I left because the programming is weak,” or because of the lack of rigor, or because of not having arts programs, or whatever it is, [00:05:00] and using that information to say, “Not only are we gonna bring those students back, but we’re actually going to listen to the hearts of parents and families and offer more programming.”

I’m hoping that that’s what comes out of it. Yeah. But I just thought it was interesting to know that districts across the country are doing this. And so this company in particular talks about how there are things that they can’t control, like low birth rates, you know, things like that. And so they feel like things that they can control by talking to parents, going to do house visits, those kinds of things will help them to bring students back.

And it’s a great boon for the district because they’re paying the company, let’s say it’s $1,000 for each student that they get back. Hmm. But of course, for them, they’re getting 20,000 because of the per pupil funding. Hmm. Hmm. So they have, like, this timeline in place. If you bring the student back before they do the student count, then you can get paid for that particular student.

It’s a very interesting setup. I’m very interested to hear what you think about [00:06:00] this, Albert, ’cause I- I’m not sure if that’s the right direction we wanna see districts go in and spend taxpayer dollars on.

Albert Cheng: I didn’t even think about the, the taxpayer part of it. Um, that’s fascin- You know, my initial two reactions was, “Wow, cool.”

Alisha Searcy: “Great.”

Albert Cheng: You know? Like, yes, schools competing for their students by offering a better product and, I mean, I hate to use that, you know, marketing language, but it kinda, it is what it is, you know. But let’s serve our families better and, and get students back, and I think that’s a good thing for all schools and all families.

My other reaction, and, and this is maybe getting to s- you know, where I’m- Maybe sensing some need for caution. You know, Alisha, I, I don’t know if we’ve talked about it much on the show, but there is no shortage of education consulting firms and folks, and some do a fine job, others, I don’t know, it’s unclear.

And, and I just hope this one is one of those where it pans out. But I haven’t thought through that other part of the business model really. You know, get a student back and you get a cut [00:07:00] of the- Right … per-pupil funding we recover. Economics is one thing, but that, that feels like economics is saying too much here.

You know, I, I, I like- Mm-hmm … what you opened with there of, “Hey, how about better meeting the needs of families and delivering on your promise to get students back?” Mm-hmm. So I don’t know. I guess, uh, to be continued, huh?

Alisha Searcy: Yeah, which is why I brought this article, right? It’s very interesting to think about and contemplate.

I always approach these things, what’s in the best interest of the student? And this is obviously a move from the district, in my opinion, that’s in their best interest. They’re trying to retrieve these dollars.

Albert Cheng: Yeah, yeah.

Alisha Searcy: I think both of us have a little bit of discomfort about this, so to be continued.

Yeah. Very interesting to think about. Well, looking forward to our conversation today, we’re gonna have with us Leslie Hiner, who is vice president of legal policy at EdChoice. So stick around.[00:08:00]

Leslie Hiner, Esquire, is senior advisor for legal policy at EdChoice, the nation’s leading educational choice organization. Hiner is currently working with the FSTC Coalition on behalf of EdChoice, engaged in the federal tax credit for scholarships implementation process, and independently is an active board member of the OIDEL, a Swiss-based nonprofit advocating for parental rights and educational freedom internationally.

She’s been cited in numerous national publications, including The Wall Street Journal, New York Times, Chicago Tribune, Washington Times, Forbes, Chalkbeat, and the US News & World Report, among others. She earned her Juris Doctorate from the University of Akron School of Law and her Bachelor of Arts degree from the College of Wooster.

Albert Cheng: Well, Leslie, welcome to the Learning Curve podcast. We’re happy to have you here. [00:09:00]

Leslie Hiner: Thank you. Pleasure to speak with you.

Albert Cheng: You’ve had a remarkably impressive career in public policy, law, and working on expanding school choice. Could you just share with our listeners, maybe some of them don’t know you tell us about your background and a few key touchstones in your excellent legal career.

Leslie Hiner: Oh, thank you, Albert. I’m more than happy to share. Two things about me. The first is I did not intend to become a lawyer, so I do call myself an accidental lawyer. I got sick, had to stay at home for a year, and decided to go to the best school that was closest after college, and I went to law school.

Really glad I did that. Second thing is I did not intend to do what I’m doing now, advocating for school choice. I am trained in international relations and international law, and that was my path. However, after becoming a lawyer and realizing, well, that was actually kind of fun, as a young lawyer, I had a woman who walked through the [00:10:00] door of my office with her daughter, and the couple had been divorced.

The daughter had always attended the school that was run by their church. She was about to start high school, but the father, the ex-husband, had a falling out with the church, and so suddenly he didn’t want his daughter to be going to that school anymore. And suddenly, I found myself with a really big trial, which had to have been the first school choice-type trial in Indiana, and the only question was this: Who is the proper person or entity to decide where and how a child is educated?

Who decides? That was the question that we litigated for five long days. And during that time, I read A Nation at Risk. It was published in 1984, talking about public schools in America. I went to public [00:11:00] schools. I knew very little about private schools. But I learned a lot in preparation for that trial.

And what happened was this. On the final day of the trial, it’s 3:30 in the afternoon, the judge ruled in our favor, happy to report. And I beat a trial lawyer who hadn’t lost a case in 10 years. So as a young lawyer, I was pretty happy. Went home, decided to watch the evening news. First story that night on the evening news was about some kids at about 3:30 that afternoon when they were boarding the bus at their high school getting ready to go home.

They got into an argument and they started shooting each other. And that is the school that my client’s daughter would have attended the very next day had I lost that case. And I instantly knew that everything that mother taught me about how no parent knows [00:12:00] a child better than anyone else, she knew that that was going to be just not the right place for her daughter and she was right.

Well, that stuck with me all these years. 40 years later I am still advocating on behalf of parental rights and educational freedom. It is the parent who has that first natural right to decide how a child is educated. I just could never turn my back on it, so I kept going. And interestingly enough, I married, I moved to Indianapolis, and the man who started the first scholarship-granting organization was a man named Pat Rooney who was also in Indiana.

I just happened to meet him one day. I became his personal attorney And part of what I had to do was to visit these schools [00:13:00] that were educating kids in the inner city thanks to scholarships from the scholarship granting organization that Pat had put together. And once again, I met these kids. They were exactly where they needed to be.

They were kids leading really rough lives, had left a bad situation in their prior school and then suddenly found themselves in the right school and they were thriving. All the pictures of these children, my early client, I have them in my head and clearly in my heart at all times, and this is what really drives me forward.

Alisha Searcy: What a powerful story. Thank you for sharing that, Leslie. I didn’t know your background in that way, so thank you. The landmark US Supreme Court decision in Brown v. Board of Education is unquestionably among the most important in the nation’s history, and I’m sure you would agree with that.

Leslie Hiner: Right.

Alisha Searcy: The Brown decision partially overruled the Supreme Court’s [00:14:00] infamous 1896 decision, Plessy versus Ferguson. Can you talk about how Brown’s call for racial access and equality of opportunity in K-12 education has really informed the public and private school choice movements?

Leslie Hiner: Sure will. The Brown cases, as I see them, that was law that had to happen. It was long overdue. And I remember reading about how the justices came to their decision and that they reasoned it was very important to have a unanimous decision.

Well, I would agree with that, with one exception, and that is that the decision, there was Brown one and two, and they were both short, very short. So they made the right decision, but then left it up to school boards in individual school districts to figure out how to not be [00:15:00] segregated schools anymore.

And as, as important as that was, no one really knew how to do that. It was a very heavy lift for people who were living in a very segregated situation to then overnight change everything. So they met with, of course, a lot of resistance. But one of the things that I noticed about that time, and what we’re still talking about today, is that these school boards, they also had to try to desegregate their schools within district boundaries, and those district boundaries proved to be very difficult.

People then, as maybe a little less so now, but there was redlining in real estate at the time. There’s still some of that going on today. And so people are segregated in their own housing, which made it very difficult for the school [00:16:00] board members, some of which were just volunteers back in the day, to figure out, “Well, if you don’t live in the district, what do I do? How do I make this work?” So there’s another piece to Brown, yes, for racial equity, for all the right reasons, it’s, those were the right decisions. But on the implementation side of things, this is the part that I think should continue to inform us. We still have another piece of this puzzle to unwind. We need to eliminate district boundaries so that people can live wherever they want to live, and they don’t have to have their child’s education tied to where they live.

Alisha Searcy: Yes.

Leslie Hiner: In places where we’re seeing that there’s some really vigorous school choice, we’re seeing that housing is changing, and it’s becoming much more diverse. You know, which would’ve helped those school boards [00:17:00] back in the day when the two Brown decisions came down. If they didn’t have to worry about district lines, I think desegregation would’ve happened much quicker.

So there’s some lessons here, and from my, my vantage point, I think it’s truly that the lesson of implementation, how education works, how parents can make it work for their children, is what matters.

Alisha Searcy: Thank you.

Albert Cheng: Yeah, thanks for that insight into the Brown decision, Leslie. I wanna fast-forward, but not all the way to the, the litany of decisions we’ve had maybe within the last 10 years, but let’s stop at 2002 with Zelman v.

Harris. In this Supreme Court decision, an Ohio school voucher program was upheld, and the court ultimately decided that the program did not violate the Establishment Clause of the First Amendment, even if vouchers could be used for private religious schools. So talk about this case and how it connects to all the other cases in the school choice movement.[00:18:00]

Leslie Hiner: Oh, Zelman was so very important. At the time, I was working as counsel to the Indiana House of Representatives. We were trying very hard to enact a voucher program here. So we were connected with that Zelman case right from the get-go, and just so hopeful because we knew that if they won the Zelman case, that that would really give us a big leg up, and it did.

The case was just out of Cleveland. Cleveland schools were under receivership. The public schools there were really in dire straits, and so there were an awful lot of kids who just needed some options so that they could learn. You know, we look at situations like that, but we seldom stop to think that a child can go through a rough year, but if a child goes through two rough years, maybe three rough years, and there’s no learning going on, that is [00:19:00] desperately difficult to fix.

I think we’ve certainly seen that recently, having gone through COVID, trying to correct for a lack of learning during an extended period of time can be almost impossible. This was extremely important to the families in Cleveland. And then, of course, the US Supreme Court really came through for us, and this was an Establishment Clause ruling, and that’s significant because most of the rulings we see today are Free Exercise Clause rulings, but this was on the Establishment Clause.

And the court said something that is pivotal and foundational for school choice, which is simply this: they acknowledge the fact that under a voucher program, the money from the state goes directly to a parent, and at that point, when the parent exercises control over how that money is to be spent, where it is to be spent, there [00:20:00] is legally a break at that point, the government is not making the decisions about how or where the child is educated.

Those decisions are attributable solely to the parent. That is absolutely foundational. We still see today where people will try to argue that any kind of a voucher program, it gives money to private schools and… Well, sorry, it doesn’t. There is no school choice program, private school choice program that gives money to schools. This money goes to parents, then it is solely their decision on how to use it for the education of their children.

Alisha Searcy: That’s an important distinction that sometimes I’ve been wrong for making, so thank you. I wanna talk about the 2017 Supreme Court decision in Trinity Lutheran Church of Columbia, Inc. Versus Comer, which was a case in which the court held [00:21:00] that a Missouri program that denied a grant to a religious school for playground resurfacing while providing grants to similarly situated non-religious groups violated the freedom of religion guaranteed by the free exercise clause of the First Amendment to the US Constitution.

So can you talk to us about how Trinity Lutheran pushed the legal momentum that ultimately helped private religious school choice?

Leslie Hiner: Oh, I sure can. Trinity Lutheran was one of those cases where we were all sitting around with our fingers crossed. This was a major issue Under the Trinity Lutheran case, it was so clean in that the state had a grant program for shredded tires that could be used on playgrounds.

That’s all it was. It was just that. And then different schools and churches and anybody who could use this kind of material to be for playground [00:22:00] was invited to ask the state if they could be included. Well, so the requests then were all somewhat anonymous, and, you know, people had to answer certain questions.

State wanted to know, they wanted to make sure that these are gonna be good grants going out, et cetera. So when Trinity Lutheran was chosen as one of the grantees, they had no idea that this was a church that had a playground. They just didn’t know. It was blind, it was a blind pick, and their application was one of the top ones.

It, it was excellent, apparently. But then once they realized that it was a church, then people got nervous and said, “Oh, no, well, we’re the state, we couldn’t possibly be giving any kind of money to a religious entity,” not even for a playground resurfacing? That, you know, it, it was… It just kinda made people’s head hurt when they thought about it, [00:23:00] and so this is how this litigation arose.

How is it that this public benefit is available to everybody unless you’re religious, okay? And then no, somehow. That’s what started this case. You can begin to see in the Zelman case, the arguments were very heavily on the side of government cannot give money directly to a religious entity, and then of course, they said, “Well, it’s not going to a religious entity, it’s going to the parent’s or child’s parent.”

So the Trinity case took that to the next, to the next level, but are religious entities actually constitutionally entitled to participate in public life? And the answer was yes, but it wasn’t a clean answer. The court was divided in this decision, and they, they were so divided, they put in a [00:24:00] little footnote, what was called the infamous footnote number three, that made some comment connecting this ruling to the broader issues where this may apply.

And suddenly it became known that the court, in the determining this case, they, the justices argued long and hard over this question. So they put a lot of faith behind how they believed in what, what the proper constitutional ruling would be on this case. And because we could see that there were some disagreements on the court, we knew that this was going to be an issue that they would want to revisit.

And that’s when we started looking very seriously at, okay, well, we’ve been arguing these free exercise cases in state courts, and we had at that point been winning those cases in state courts. [00:25:00] But maybe now the US Supreme Court is ready to take on this issue head on. So that was a big light bulb.

Albert Cheng: Let’s continue the story ’cause I think that segues nicely into the next question, which is about the Espinoza case in 2020. And so here, the Supreme Court ruled in favor of the lead plaintiff, Kendra Espinoza, in a lawsuit against the Montana Department of Revenue. Let me just let you pick up on the story. Yeah. Why you don’t tell us- … about this decision and how does it continue the story here?

Leslie Hiner: Sure. The Trinity Lutheran case was 2017, and that was just about the time in Montana that things were beginning to bubble up, and they passed a tax credit scholarship program.

Passed the program, and then of course it was litigated, and here’s what happened. This is how it all came to light. The program was passed, and language looked fine. Everything was okay until we got to the rule-making [00:26:00] process. And during the rule-making process, the Department of Revenue, which was charged with implementing this tax credit scholarship program, they inserted a rule saying that none of these scholarships could be used to attend any religious schools.

They were very plain, very blunt about that. There was major pushback, not just from advocates, but from parents, et cetera, but they stuck to it and said, “No religious schools.” Well, it just so happened that the program had gone into effect for a short time before that happened. And there was a mother who lived up in northern Montana in a place called Stillwater, small town in Montana, very rural, and she had been divorced.

She then had to go to work. Her ex-husband was not real supportive. She had two beautiful little [00:27:00] girls. And so as she’s trying to get onto her feet again, here are her two little girls who decided that recess was kind of boring and they were a little tired of… Okay, as her one daughter told me, “Mrs. Hiner, you can only swing on a swing set so long, and then it’s just kind of boring.”

So, so they decided that they would have their own little Bible study group at recess. These were girls where some of the kids from their church were at the same school there, and they had Bible study at church, and it was fun for them, so they did that at recess. Well, it didn’t take long before some of the other kids noticed what they were doing and harassed them terribly.

Kendra Espinoza, their mother, went to the school and said, you know, “This is a problem,” and the school was fairly indifferent about the whole thing. The end result was that suddenly Kendra realized that her daughters were depressed. They were good [00:28:00] students until suddenly they were not good students, and they were very depressed.

She had to do something. Then the Tax Credit Scholarship Program passed, and she was able to get some assistance to be able to send her girls to Stillwater Christian Church School. And then everything was good a- again, you know, no depression, girls are thriving, everything’s fine, and then the rule came down saying, “Yeah, sorry, you can’t use the money at that school.”

So Kendra Espinoza was the lead plaintiff in this case. So when I say that this is really one of those pure cases, it most certainly is. The impetus behind this was very straightforward. It was not easy to go through all the litigation, but she hung in there all the way up to the US Supreme Court. As you can imagine, with a plaintiff like that, it was easy for everybody to really want to win this, to do the right thing by this family.

I just have to [00:29:00] say I’m, I’m thankful for that. She was, she was brave and, and helped all of us just in her demeanor as much as anything. Same with those girls When we got up to the US Supreme Court, we felt strong, but every lawyer knows when you go into court, eh, you’ve got a 50/50 chance. You know, don’t count your chickens before they hatch, that sort of thing.

But the court was very clear, though, about the religious liberty, that in fact, the court opined that what happened in, in Montana was a straight up discrimination against those who exercise their religious faith, and that cannot stand. That cannot stand. The ruling was far stronger than anything that we might have imagined.

There simply is no question about this. You simply cannot discriminate [00:30:00] against anyone because of their faith or the free exercise and expression of their faith.

Alisha Searcy: Thank you. Maine established its school tuitioning program in 1873, and for a century it included religious school parents and schools. Then in the early 1980s, the state attorney general, in concert with the legislative leadership, it’s said that they quietly amended the program to allow for the state to discriminate against religious families.

Can you talk to us about the legal contours of the landmark Supreme Court decision in Carson versus Makin in 2022?

Leslie Hiner: The background on this is that when the Espinoza case was getting started, there’s a question that we lawyers talked about, that this was a tax credit scholarship case, and tax credits are very different from a voucher program.

And so we weren’t 100% certain [00:31:00] that the Espinoza case would be our strongest case on First Amendment arguments, although, you know, that’s where we were, and so we, we really put our hearts into Espinoza. But then the key attorneys at IJ, they called me one day and said, “So-” What do you think about Maine? You know, Maine had been a problem because of what this attorney general did back in 1980.

They had free exercise in the state of Maine. They had a voucher program that started in 1873, as you said, and kids could attend religious schools. Many of the religious schools in Maine were serving the poorest children in Maine, and they had a very broad outreach. It was pretty great. And then suddenly, then they couldn’t.

And when pressed about it in Maine, they said, “Well, we don’t mind if these religious schools participate. [00:32:00] They can do that. They just can’t do anything that’s religious.” Now, as ridiculous as that sounds, it’s true , it was ridiculous. Sure, just, y- you can be a religious school, but, you know, just, just don’t.

Leave your religion at the door and just teach reading and math and just kind of forget the fact that you’re religious at all, and, and then everything will be fine. So it suddenly occurred to us that, yeah, it would be a good idea to go forward with a case in Maine, and there were, again, same thing, some plaintiffs in Maine who’d been, you know, hoping for their chance to change things in Maine.

And so that case began in the same way that the Espinoza case began. This was a free exercise case, and it was about can you simply close the door on religious schools? However, we won Espinoza at the US Supreme Court, [00:33:00] then went back to Maine to say, “Well, okay, the case of Maine now is moot. US Supreme Court has ruled.”

And Maine said, “Oh no, that doesn’t really apply to us.” Which was, y- yeah, we’re pretty sure it does, but okay, we’ll litigate this. So we lost at the district court level. The, and the judge said, “Gosh, you guys are great. Thanks for really good arguments, but you don’t really care how I’m gonna rule on this case, ’cause everybody knows you’re going up to the higher court, so good luck.”

That truly was the ruling. But when we hit the First Circuit Court of Appeals, we drew a three-judge panel there, and two judges that we knew were not favorable at all, but the worst of all was that Justice Souter, who had previously been on the US Supreme Court, was one of the judges. And as luck would have it- Justice [00:34:00] Souter was on the bench at the US Supreme Court during the Zelman case.

And in the Zelman case, he wrote a blistering dissent against vouchers, and that’s who we drew as one of the judges to judge the Carson case, the First Circuit Court of Appeals. Well, we, you know, did our best, as they, as they say, and of course, lost in a big way, but the court changed the case. As it turns out, that was a true blessing.

So the court ruled that religious use would be unconstitutional. So it’s one thing to exclude a religious school just based on their status as being religious, and a separate thing under legal principles to exclude because of using the money for [00:35:00] religious purposes. You know, it was a painful loss, except that we realized this is what we really needed to pull together the First Amendment arguments on school choice all the way.

So when we went up to the US Supreme Court, the US Supreme Court was very, you know, quick to grant cert for this case, because clearly this was another prong of the First Amendment free exercise arguments that needed to be resolved, and we did. And we resolved it. I have to tell you that one of the things the court said was, public schools do what public schools do, religious schools do religious things, and that’s both of them.

They’re just fine, and our Constitution supports both. I thought that was good.

Albert Cheng: Yeah. I love the, all the, you know, all the quips from the Supreme Court. I mean, someone needs to, like, give me a list of all of [00:36:00] them. But, uh, let’s kind of look back, and we’ve talked about Trinity Lutheran, Espinoza, and I’ve just talked about Carson V. Makin. Where have the legal battles been since Carson? How and where might, say, critics of school choice strike back legally? I mean, we’ve talked about Loughman and California Department of Education on the show. Where have we been and where are we going since Carson?

Leslie Hiner: That’s the big question. There were a lot of people around the country who believed that, well, we had won on the establishment clause argument, and we won on two legs of the free exercise clause arguments.

And so a lot of people thought that their Blaine amendments, those amendments that are buried inside of state constitutions that have created all this mess for us over the years- A lot of people thought that Blaine amendments then, that they were just dead, [00:37:00] and everything was fine and happy and okay, and so we wouldn’t really have to be litigating school choice much anymore.

Well, that was not quite true. What the court decided in Espinoza and in Carson was essentially that these Blaine amendments are unenforceable. It doesn’t mean they’re dead. They’re still in these state constitutions, but they are unenforceable as to school choice. It was very, very clear. So what that allowed for is it allowed for our opponents in states to still try to kind of chip away at these arguments.

So we, we still, even after Espinoza and Carson, we’ve, we’ve seen the challenges to religious liberty. The first cases were, you know, n- not very strong challenges, but [00:38:00] it’s almost as if they kind of felt like they should anyway. Just got that feeling that they were never their… They haven’t been their strongest arguments here lately.

But now they seem to be looking at different things, a- and this goes on both sides. So for example, when we see, like in the, the Laughman case, where services that had been rendered to Jewish students, then suddenly they were dropped. Okay, well, no. You’re going to exclude them because they’re Jewish? It seems wrong somehow, and we were all sort of surprised when they actually fought back and wanted to litigate, and we were all relieved when there was a settlement in that case.

It never should have happened in the first place. And then you have, of course, in New England, and I’d say a somewhat related case also in Colorado. In New England, you have the situation where kids with [00:39:00] disabilities that they could, yes, of course, get their services from their public school, but they would have to get their services at the public school.

And especially for those kids with disabilities who are not yet able to sit in a classroom, but nonetheless were entitled to IDEA services, for them to then have to go to the school to get services, that was a serious hardship, serious hardship, and for no particularly good reason And then in the Colorado case, they have a preschool program now that they’re funding in Colorado.

But again, it’s the exclusion of certain groups of children, most notably religious schools. There are pieces to the puzzle that are still being kind of tweaked. As I look at it, I see, well, this is kind of tweaking around the edges, that people don’t like the big rulings that came down from the Supreme Court.

I mean, we do, but our opponents [00:40:00] don’t. And so they, you know, there’s still some bad actors around doing things rather privately or quietly. But maybe the good news is that the information about those wins in Zelman, in Espinoza, in Carson, it’s really beginning to permeate now where people understand that the US Supreme Court has been firm in supporting free exercise rights under the US Constitution’s First Amendment.

And so when people are wronged, they are more likely to call a lawyer and say, “I think this is a problem. Can we do something about this?” That’s one piece. So there’s still fragments of the free exercise issue that are, are still coming along There have been some challenges related to education and free speech.

Those challenges are just [00:41:00] beginning to develop at this point. But the one challenge that we continue to see that just won’t seem to go away are adequacy funding challenges. Just recently, yet another lawsuit was filed against the school choice programs in Florida alleging that they are not adequately funding public schools, and that somehow the school choice programs are contributing to that, and that somehow that’s a problem.

I kind of chuckled when that case was filed. In Florida, they have had school choice for a couple decades now. It’s been very helpful to students. It’s rather beloved in Florida, and early on, they faced an onslaught of litigation. They had years of litigation, and then finally it appeared, “Okay, you’re done now.

You’re done now.” Including adequacy funding. There have been adequacy [00:42:00] funding cases that were brought before. And in fact, the last one that had most recently been decided, and that was, oh, I don’t know, a few years back now, maybe 2019, I think it was. They alleged that education in the state of Florida was declining, and that the lack of adequate funding was contributing to that, and that also the school choice programs were taking money away that they should have, blah, blah, blah, that argument.

Well, in the trial court, that case, there were 5,000 exhibits. There were dozens of people who testified. The trial was a month long. It was huge. They turned over every possible stone. And at the end of the day, the court said, “Well, looking at all this evidence, it appears to me that, yes, the state of Florida [00:43:00] actually went down in its funding for public schools.”

But a funny thing happened, though. Achievement went up. And the court opined, “Well, gosh, it seems like the public schools do better when they have less money, so I don’t know what the problem is.” And they lost. And now here we are, let’s see, this is seven years later, and yet another adequacy funding lawsuit.

I think we’ll just continue to see more of that. It’s a way to bring cases against school choice without getting wrapped up in free exercise arguments, which I’m sure they realize that they’re not going to win

Alisha Searcy: So Leslie, our final question, when you look forward, where do you see private school choice litigation heading over the next five to 10 years?

So as an example, IJ and Pioneer Institute’s case, Hellman versus Mass DESE, lost in the US First Circuit and is [00:44:00] seeking, um, cert from the Supreme Court. Michigan still has among the most recent, some may call it the worst Blaine amendments, while only a couple of blue state governors have yet opted into the federal education tax credit program.

So can you talk to us about where this country is heading when we talk about private school choice on the legal front?

Leslie Hiner: Sure. This is the question of the day, actually. I truly believe that we are at an inflection point, that moment in time when there are a lot of moving pieces to the puzzle. If you look at first, just keeping on with the First Amendment to the US Constitution, Establishment Clause, Free Exercise Clause, and then the free speech element, as I had mentioned, there are more people who are looking at that question now because a- as you think about it, whether you’re at a public school or a private school, there, [00:45:00] there is a certain viewpoint at any school that will be expressed and the parental side of this is to say, “I want my viewpoint to be the viewpoint with which people teach my child.”

And if the parent can’t get there, that’s an issue. This is very sketchy, I realize, but I may emphasize this is just a beginning conversation along these lines. But free speech, everybody’s talking about free speech these days for a lot of applications in other ways, but now they’re also looking toward school choice, so that’s kind of new territory.

Then, of course, the adequacy funding cases will, I’m sure will continue. Michigan, God bless them, they have tried so hard for 20 years that I know of to try to figure out a [00:46:00] way around some very awful provisions in their state constitution. But hopefully this federal scholarship tax credit will help them.

Okay, now that also… Now, I mention that because that brings up what we anticipate may be a new wave of litigation. The federal tax credit for scholarships is, first and foremost, it’s a tax credit. It’s not a federal education program. It’s not a state education program. It’s just a tax credit Now, as simple as that sounds, and it is actually, all kinds of people are trying to make it very complicated and trying to turn it into an education program and

Because if you do that, well, then you can start seeing some points where you might want to [00:47:00] litigate something, if it’s federal, it’s tax, it’s some state involvement, that just creates … For people who are trying to oppose all of this, this creates more opportunities by messaging the federal tax credit in this way.

But I think it will be very interesting to see how things actually roll out. We are in a place now where the Department of Treasury is working on developing rules, and those proposed rules, and I’ve, I’ve been working hard on that here for, well, since last year, since the bill was passed in July. And they’re doing their ultimate best to try to figure out how this federal tax credit will impact states, and especially those states that have existing state tax credit scholarship programs.

This federal tax credit is meant to be a supplement [00:48:00] to those programs to help them expand and serve more children. And in those states that, that don’t have any kind of choice at all, or they don’t have any tax credit scholarship programs, you know, there’s a bit of a learning curve there in trying to figure out how it will work.

In states that have no school choice at all, and of course, this is where the great controversy comes in, and these are states that are being targeted. The latest one that I’ve seen from opponents is the state of California has now been targeted. “Oh, don’t let this possibly come to California. It would be terrible.”

But the issues are also different with this because under the federal tax credit scholarship, students who are in public schools can remain in public schools and use funding from these federal tax credit scholarships for tutoring, for example. [00:49:00] So it’s not just for tuition, it’s not just for kids to go to private schools, but it’s very holistic in the application of the benefits of this federal tax credit.

And I think just because of that, we will see perhaps different types of litigation because there are different questions that are now arising because of this federal tax credit. Now that said, fundamentally, and I’m one to try to get people back to fundamentals at every point if at all possible.

Fundamentally, the situation is this There are scholarship-granting nonprofits in every state whose donors have been getting a federal charitable tax deduction for the donation For a very, very long time. Now, with this [00:50:00] new tax credit, they can get a tax credit instead of a charitable deduction. So it’s a little stronger incentive to those donors who are inclined to give money to a local charity who gives money to families to help them, and in this case, to help them with education.

So this is not new. It’s just a greater incentive for people who are generous and want to do something good for the families in their own community. That’s what this boils down to. I think to the extent that we can continue to emphasize that, that this isn’t some meteor that’s hitting the nation. It’s not that.

This is just greater incentive for generous people to give in their communities and help families. It’s important for us to keep that focus. I think as long as [00:51:00] we can keep that focus, then also keep the focus on the Zelman ruling, where the court was so clear that vouchers, much like these scholarships, they go to the parent on behalf of the child, and there is only one purpose for any of this, and that is to help that parent provide the kind of education that their child may need, whether it’s just tutoring, whether it’s tuition, whether it’s therapies for kids with disabilities, whatever it is that a child needs to be able to thrive.

That’s the point of all of this, and that’s the focus. So many of these lawsuits, you’ll see that they miss that. They’ll go into kind of high-minded general [00:52:00] principles and skip the point of who is served by these school choice programs, and we should never do that. As long as we stay focused, I think no matter what the litigation is, no matter what comes our way, we’ll be able to find our way through it.

The Constitution, we believe very strongly, and it’s been proven out both at the federal level and in states, they are with us. I think even in Massachusetts, the day will come for Massachusetts, which has always also been in a, a rough spot for getting any kind of school choice done. I think Massachusetts has a future here too.

Alisha Searcy: Well, if your track record is any indication, I think you are exactly right. So thank you so much for being with us today and for sharing your wisdom and knowledge and for your advocacy for parents across this country.

Leslie Hiner: Thank you, Alisha. I am always happy to talk about this. It’s the only way that [00:53:00] we’re going to get good things done is when we’re talking to each other and sharing what we know. So thank you.

Alisha Searcy: Well, Albert, I appreciate Leslie’s work over the years. She is a phenomenal stalwart in the world of education, so it’s interesting to pick her legal brain and hear her perspective on all things school choice today.

Albert Cheng: Yeah, yeah, yeah. Look, I’m not a legal mind at all. It’s not my cup of tea, so I definitely appreciate the folks that do that work and help us make sense of the world in, in that way.

Alisha Searcy: Yes, absolutely. As always, great to hang out with you.

Albert Cheng: Likewise.

Alisha Searcy: Yes. And before we go, we’ve got to talk about, of course, the tweet of the week. It comes from Real Clear Education, “The benefits of an afternoon at the art museum,” which is very timely. I just [00:54:00] spent time this past Sunday at the High Museum in Atlanta seeing an exhibit from Amy Sherald, a fantastic American artist who really displays the American experience of all types and brings in a lot of different people.

So I have a great respect for spending an afternoon at the art museum and answering the question, does art imitate life or does life imitate art, right? So-

Albert Cheng: Wow, that’s, yeah. I mean, go to an art museum if you’re looking for a summer thing to do, I guess, is the moral of the story.

Alisha Searcy: Exactly. Exactly. Very good.

So for our listeners, make sure you tune in next week. We’ll hear from Dr. Snezana Lawrence, who is a British historian of mathematics and author of A Little History of Mathematics. We’ll see you next [00:55:00] week.