This is Bloomberg Law with June Grossel from Bloomberg Radio.
It's a case that could lift longstanding constitutional limits on government support for religion, and the sharp ideological divide on the Court was apparent in the oral arguments over whether to allow the country's first publicly funded religious charter school in Oklahoma. Four of the conservative justices seemed to be firmly on the side of the Catholic charter school, suggesting that the state is unconstitutionally disfavoring religion by requiring public
charter schools to be secular. Justice Brett Kavanaugh called it rank discrimination against religion.
And then you come in and you say, oh, we're a religious school. It's like, oh, no, can't do that. That's too much, that's scary. We're not going to do that. And our cases have made very and I think those are some of the most important cases we've had of saying you can't treat religious people and religious institutions and religious speech as second class in the United States.
But the three liberal justices emphasized that taxpayer funded religious schools would entangle church and state in violation of the establishment clause of the First Amendment. Here's Justice Sonya Sotomayor.
Because the essence of the establishment clause was we're not going to pay religious leaders to teach their religion. That is and has always been the essence. And here we're paying Catholic leaders Catholic teachers. You can only be a teacher in this school if you're willing to accept the teachings of the Catholic Church.
My guest is First Amendment law expert Caroline Malik KORbin, a professor at the University of Miami Law School. Caroline, what's at stake in this case?
So the ultimate question is whether the Supreme Court will require the state of Oklahoma to directly fund a religious charter school. That's the big picture. Basically, Oklahoma has a charter school program, as do most states. As a matter of fact, it's supposed to be another alternative to regular public schools, and the school bar charged with approving charter
schools approved a Catholic charter school. A Catholic charter school would violate the Oklahoma Constitution, and so the Attorney General challenged that on the grounds it violated two separate provisions of the Oklahoma Constitution as well as the US Constitution. Because the Oklahoma Constitution makes it very clear that taxpayer money cannot be used who is, to fund religious proselytization
and indoctrination. And there is a separate provision of the Oklahoma Constitution that says public education must be non sectarian. In other words, public education must be secular. That's the Oklahoma Constitution. There is also, of course, the US Constitution's Establishment Clause, which has long been understood to ban direct fundings using taxpayer money to fund religious education, religious proselytization,
religious doctrination. And that went all the way up to the Oklahoma court until the Oklahoma Supreme Court said, you know what, it does violate the Oklahoma Constitution does violate US constitutions for Oklahoma to have a religious charter school. And then the charter school and the board that approved it appeal to the Supreme Court and they claim that Oklahoma's refusal the Holy fund that Catholic charter school violated
the free exercise clause of the US Constitution. And that was what the case was before the Supreme.
Court explain why. A key issue is whether the religious charter school is public or private.
So that's the million dollar question. There was a dispute on whether to characterize charter schools as public schools or private schools, and that category makes a huge difference under the doctrines, because under existing precedent, if charter schools are in fact public schools, then Oklahoma is absolutely free to
insist that they remained secular. On the other hand, if they are considered private school there is a trio of Supreme Court cases that have held that if the government makes taxpayer money available to private secular schools, it has to make that money equally available to private religious schools.
So it really really matters whether the charter schools are public schools, in which case Oklahoma can keep them secular, or whether they're private schools, in which case the Supreme Court will hold that denying them equal access to government money amounts to discrimination against religion and that would violate the free exercise costs.
The liberal justices went through pains to try to point out that the charter school is public, and then the conservatives went to pains to try to prove that it was private.
Which do you think exactly? I think that the weight of evidence is that these schools are public. For various reasons. The state creates them, and the state can end them.
They really have all the.
Hallmarks of a public school. They are free, they're open to everyone, they're completely funded by the states, and the curriculum is subject to detailed oversight by the state. The teachers or subject to all the same benefits and regulations as public school teachers. Congress. When Congress enacted the law that allowed for charter schools, they characterized them as public schools.
But especially important is that the Supreme Court of Oklahoma, in interpreting Oklahoma law, said this law creates public schools. The reason why that is so significant is that traditionally the state supreme court is the final arbiter of what a state law does. And if the state Supreme Court of Oklahoma says this Oklahoma law creates public schools, that is supposed to be entitled to deference by the Supreme Court.
That's sort of a basic principle of federalism. The state courts are the ones who interpret what state law means. So there really is a lot of reasons to conclude that these schools are ultimately public schools, not private.
How did the conservatives answer the liberal justices questions about the establishment clause and how a taxpayer funded school would entangle church and state.
So that's the first thing to note is in the justice's mind, what's going on here is that the state has created a program and made a benefit available, and consequently it has to be made available equally to religious and secular schools, otherwise violates the free exercise clause. That it might be intention with the Establishment clause doesn't matter to these Supreme Court justices who always privilege the free
exercise clause over the Establishment clause. So in their mind, if it is required to give the schools money by the free exercise clause, then by definition it can't violate the Establishment clause, and so they might simply not reach the establishment clause problem that it is very firmly established in establishment clause jurisprudence that the government cannot directly give money to religious organizations for the purpose of religious indoctrination
and religious education. The state cannot give directly money if the money ends up at a school indirectly, that is okay under another case. But for the government to take money from its coffers and put it into the coffers of a private religious school that then uses the money for religious education and doctrination prostimization. Even under current Establishment Clause law, which is highly weakened even today, that's still unconstitutional.
Did you see the three liberals on one side, four of the conservatives on the other. And then is Chief Justice John Roberts the pivotal vote.
He is because Justice Barrett recused herself because of her close connection with someone involved in the litigation, and so the Conservatives don't have a cushion as they normally do.
They need Justice Roberts in this case in order to prevail, because if it is a four to four tie in that situation, the lower court decision stands, which is the Oklahoma Supreme Court's decision that it would violate the state and federal constitutions to create a religious charter school wholly funded by the state.
And Roberts didn't tip his hand as to which way he was leaning. But if the Conservatives do have the votes, what might the decision look like.
Well, there are two ways they can rule in favor of the charter schools, and I think one is significantly more likely than the other. The first way is the one I've suggested already, is that they conclude that these are private schools and accordingly, under existing precedent, the state has to give them the same opportunities of state funding as they give private secular charter schools. And there they would insist that this is no change in the law whatsoever.
It's just a continuation of their previous rulings that hold that if the government makes a benefit available, it has to make it equally available to private religious schools and private secular schools. It could say that these are public schools, but still in terms of the charter school program, it has to offer the opportunity to create both secular charter
schools and religious charter schools. But there's no reason for them to rule in that way if they can take the much simpler path of simply claiming, contrary to the evidence and Congress and the Oklahoma Supreme Court, that these are private schools. And this is just another case of the state discriminating against religion by denying its funding that it makes available to their specular counterpart.
Coming up the court string of decisions allowing public funds to be used by religious institutions. This is bloomberg. The Supreme Court's conservative majority has repeatedly sided with religious interests
in recent years. In three cases since twenty seventeen, the Court has allowed public funds to go to religious entities, and in a case over whether to allow the country's first publicly funded religious charter school in Oklahoma, four of the conservative justices seemed to be firmly on the side of the Catholic charter school, suggesting that the state is unconstitutionally disfavoring religion by requiring public charter schools to be secular.
Justice Brett Kavanaugh seemed to acknowledge that the Court has been rewriting the interpretation of the Constitution's religion clauses when he told Oklahoma's attorney former Solicitor General Gregory Garr that the Court now has a different constitutional understanding than it did since the beginning of the charter school program in nineteen ninety four.
But this is going to have a dramatic fact on charter schools across the country. And just think of the federal charter school program on its own. I don't think you can't just say, like, oh, well, just you know, Grant, well.
It's not good that the premise of that was that at that point it was considered constitutional to discriminate against religious entities and that you know, that's some of our case law has changed that and said no, it's not constitutional discriminate against private and that's.
I've been talking to Professor Caroline malt Corbin of the University of Miami Law School. Caroline. Later in that interchange, Kavanaugh said, there was a different constitutional understanding, yes.
And this different constitutional understanding is a constitution without the establishment clause. Because it's very important to realize that religious organizations are treated differently under the Constitution. They get certain benefits under the free exercise clause. So for example, religious schools or an titled to a ministerial exemption, which means that their teachers can't bring discrimination claims. It means that they often get extra tax breaks that others do not.
There are definitely benefits to being a religious school, but it had long been any understanding that being religious brought not only special benefits but also certain restrictions. And one of those restrictions was a, for example, limit on the kind of funding you could get from the government.
And so there was.
Long this balance where in some ways religious schools got certain benefits, but in some ways they had certain restrictions from the benefits from the free exercise clause, the restrictions imposed by the Establishment Clause. But what the Roberts Court has done and reconfiguring the religious liberty clauses, it has expanded the privileges of religious organizations while eliminating the prior limits. And one way they've been doing that is with this
flate of hand. The slate of hand is what were previously understood as Establishment Clause limits on for example, government funding now has become religious discrimination right. So again, one of the basic premises of the Establishment clause is that
the government does not fund religions. In various ways, the Supreme Court generally pretends to the Establishment clause does not exist and insists that any time the government does not fund religion, it is discriminating against religion because it's funding
secular organizations. So basically, what they've done is they've taken this balanced approach towards religion, where sometimes it gets special benefits and sometimes it's subject to special limits, and it's eliminated the limits by re characterizing a constitutional requirement as
just hostility to religion. So in their minds, the reason that Oklahoma doesn't want to fund a religious school a religious charter school is not because the Constitution limits it, which it does both the state and credal but because they're hostile religious. So that's the switch. Right, limits that were constitutionally required, limits that were understood to be required
by the Constitution's Establishment Clause, don't exist. Instead, those limits only reflect hostility to religion, not an attempt to honor the Establishment Clause. And I'm just going to say one more thing. This is my pitch for the establishment clause. The Establishment Clause is a protecting religion. One of the main things the Establishment Clause does is by insisting on some degree of separation between church and state. It's protecting religion.
It's protecting the favored religion, because anytime church and state gets entangled, it tends to degrade the religion, it tends to demean it in some way. And also, anytime the government gets involved with religion, it usually ends up favoring one religion to the detriment of others. And so insisting on the separation from church and state is so important
to protecting minority religion. So I just want to emphasize that the Robberts Court is often characterized as being very pro religion, but that's not quite accurate if it's eliminating the establishment clause, because one of the things the establishment clause does is protect minority Rely, let's.
Talk about this string of decisions since twenty seventeen, the Court said that Missouri violated the free exercise right of a Christian learning center when it denied grant funding to resurface its playground. Twenty twenty, Montana couldn't exclude religious schools from a program providing tax credits, and twenty twenty two, main can't limit a tuition assistance program. This seems like just the next step.
This is the next step. That's the precedent that the Supreme Court will recite when they says this is a very straightforward case. If they do rule in favor of the Catholic charter school, they're going to say it's private, and as we have established in our three prior cases, the government cannot discriminate against private religion schools. See all those three cases you just mentioned.
What will a ruling like that mean for the forty five states that require charter schools to be both public and non sectarian, as well as the federal charter school program.
It's a bit of a disaster because every state just about has a charter program, and every state is assuming those charter programs amount of public schools, and so maybe not every state. I think they mentioned California quite So. What it means is it throws into question the constitutionality of every charter program because they all currently exclude religious schools on the assumption that these are public schools, and you can't use government money to fund a religious public school.
So there's going to be a lot of legal uncertainty about the exact status of the charter schools in every state because each of them has slightly different rules, and so there will be litigation in fifty states about whether their particular charter school program creates private schools public schools.
It also throws into question some federal funding. I think one that the council recommended was the Special Federal Funding for Student with Disabilities, the Idea Act, the Individuals with Disability and Education Act, where charter schools get federal funding for their disabled students on the assumption that their public school I think that's what it was. I'm not one
hundred percent on that. And then there are some other states that make it very clear that no money at all can go to any private school, and so they will have to rethink their charter school programs. So that's just the confusion that he emphasized. But in terms of church state, it means that once again money will be siphoned from the public school educational system into religious schools. Now, if the new rule is you have to be open to religious charter schools, it's going to be any religion
can have a charter school. In theory, that's the theory, right, because otherwise you'd be discriminating against some religion over the others. But the reality is that the vast majority of these charter schools are going to be Christian schools, just as we saw in voucher programs that the vast majority of
private schools getting vouchers are christ In private schools. And so this will be a significant channeling of your money and my money to religious schools who are going to be indoctrinating their students in beliefs that might be antithetical to our own religious beliefs.
States would be able to rewrite their charter rules, right, I don't eliminately.
But.
I don't know how easy that will be. I don't know how long.
That will take.
We don't know what the impact will be in the next school year. So yes, it is entirely possible to completely revamp your charter school system to make it one hundred percent clear that these are public schools, although you know, they kind of already made it clear that they were
public schools. I don't know if any state could be confident that the Supreme Court wouldn't come back and say, well, actually, you thought you were complying with the factors that we listed as defining what's a public school as opposed to a private school. But we're moving the goalposts again as.
They've been moving it in these religion cases. Always a pleasure, Caroline, Thanks so much. That's Professor Caroline Malcorbin of the University of Miami Law School. Coming up next on The Bloomberg Law Show. Supreme Court oral arguments where civility is usually prized turned unusually hostile in a case involving a Minnesota
school district and a disabled student. Supreme Court oral arguments take place in a rarefied atmosphere where civility is prized and your opponents are not adversaries, and your opponents are not called adversaries but rather friends. On the other side, but not so. During Monday's oral arguments involving a Minnesota school district and a disabled student, just Is Neil Gorsich took Lisa Blott, the attorney for the school district, to task.
You believe that.
Mister Martinez and the Solicitor General are.
Lying in or argument? Yes?
Absolutely, it is not.
True that we should be more careful with your works.
Okay, well, they should be more careful in character mischaracterizing a position by an experienced advocate of the Supreme.
Court, and Blott is certainly an experienced advocate. But Justice Gorsic apparently couldn't let it go and returned to it later in the argument not to set the law.
Miss, Yeah, I confess I'm still troubled by your suggestion that your friends on the other side have lied.
Okay, let's help pull up.
Yeah, I think we're going to have to here, and i'd ask you to reconsider that phrase argument if I might it was incorrect. If incorrect is fine. People make mistakes. You can accuse people being incorrect lying, Miss Blatt, if I might finish sure, lying is another matter.
Blatt eventually withdrew her comment, joining me is Bloomberg Law Supreme Court reporter Kimberly Strawbridge Robinson who heard it all. Kimberly, the oral arguments are usually very civil. Even when questioning gets aggressive, you rarely even hear raised voices.
That's right. I mean, there's a level of decorum that's expected within the Supreme Court even while debating you know, really hotly contested issues. And I think one of the things that really sort of demonstrates this is that the advocates are encouraged by the justices to refer to opposing counsel as my friend on the other side. You'll even hear attorneys correct themselves if they say, you know, my opposing council though quickly correct them of selves and say,
you know, as my friend on the other side said. So, it really is a place that's defined by civility.
So now tell us about the case at the Court on Monday involving a Minnesota school system. Generally what it was A yeah, I mean.
I think the broadest level of this case is about disability discrimination in public schools. It's a very technical case on the interaction of several federal statutes, but at a part it's about when schools can be held liable for disability discrimination.
And Lisa Blatt is an experienced Supreme Court advocate. She's argued more than fifty cases before the court.
Yeah, I mean, she's one of a handful of individuals who can claim that sort of milestone, and she's the only female to do so. She has a really distinctive style. It's very casual and very straight to the point. But you know, the justices do really seem to enjoy her oral advocacy, and she has sparred with some of the justices in the past, but you know, often they'll laugh
at some of her comments that she makes. You know, I think people tend to think that she gets away with things that you know, others, even experienced advocates, cannot, And you know that's really shown through her record of the court. She has an unusually high success rate at the U. S. Supreme Court.
So what happened during these oral arguments that led to this confrontation with Gorsu.
Well, you know, this is a casepot by parents of
a disabled student who's suing a Minnesota school district. And as they sort of understood the case as it came to the Supreme Court, you know, they thought it was a very narrow case, and during oral arguments, the parents' advocate, who himself is a seasoned Supreme Court veteran, you know, said that this school district had sort of pulled the rug out from under the justices and had changed course in the Supreme Court and advocated for a much broader,
much drastic sort of request than what they thought that the case was about. And then when Lisa Platt got up to argue for the school district, she said that wasn't a correct character of their stance, and she actually accused the parents' attorney as well as the federal government's attorneys, who was on the side of the parents in this case. She accused them of lying. And it's really that accusation that really got under the skin of several of the justices.
So was Justice Gorsuch seemingly the most upset. He raised his voice and said, be more careful with your words.
Yeah, I mean, he was definitely the one who was most upset. But I will say that several of the justices seem to indicate that they sort of agreed with the parents' attorneys and with the federal government here in the categorization of the school district's stance, and so that made it all the more worse when Blatt said that, you know, those who were holding that you were lying. But Justice Gorsuch was the most verbal and most clearly upset.
You know, he did tell her that comments set to watch her words, and then later in the argument he came back back to the issues, saying he was still troubled by it and really urging Lisa Blatt to withdraw her statement, which which she did. But as the parents' attorney said on rebuttal, really it was done under duress.
So even just as Soto Mayor suggested that Black might have violated the court rules.
Yeah, I mean along the way, you know, Justice Slittemwayer pointed out that the Supreme Court rules really admonish counsel to bring it to the attention of the justices if they think that there's you know, some issue with the you know, the kinds of questions that the justices are hearing. You know, obviously that way, the advocates and the justices
are not surprised. And she suggested that you know, it was Black who was the one who was acting inappropriately here, and that if she really thought that the argument was supposed to be much broader. She should have that more clear in her briefing.
So basically I mean is whether there was a heightened standard in the educational context, and then Black said it should be in every context.
That's right, I mean, so you know the question. I think that the parents thought that they were answering, that the federal government thought that they were answering, and it was obvious from arguments that the justices thought they were answering. Was you know, insuing for disability discrimination, parents of school children have to make a heightened showing in order to hold schools liable, and it's a showing that doesn't apply outside the educational context. And that is actually the law
in many circuits. Some circuit took on the other way. It's created sort of, you know, this circuit split that is quintessential of the cases that the Supreme Court decides to hear. But we heard on Monday that the school district agrees there's no special standard for schools. But at least as Latt argued that heightened standards should apply across the board to all disability discrimination cases, even those, for example,
with employment. And the justices were really surprised by that argument that has not been the law in any circuit, and they were really resisting Lat's requests to say that for the first time in the Supreme Court in this case.
So then did it seem like a majority of the justices were siding with the parents?
You know? It did? There there are a couple of paths that the Supreme Court can take. They sort of picked it a lot of them, particularly before this Force's blat interaction. There was a lot of talk about the different methods or ways that the justices could side with the parents. I'm not quite sure what they'll do, but I don't think that they're going to be, at least not yet taking on this blast broader request to apply a heightened standard across the board.
Veteran court watchers were also surprised by the nature of this exchange.
They were I mean, as I mentioned before, Lisa Black does have a very distinctive advocacy style at the Court. But still people were surprised with sort of the hostility between the exchange between her and Justice Gorsage. That you mentioned that he raises voice several times. That doesn't usually happen in the Supreme Court. Many were surprised that she sort of didn't take the hint and withdraw her comment before.
You know, a lot of pressure from Justice Gorsag. You know, we have some people who said they've never seen Justice Corsage be that angry on the bench. Tan I certainly listening to it, was quite surprised that it was an interaction that was happening at the Supreme Court.
She just shows you the Supreme Court is so different because in a trial court, one lawyer accusing the other of lying might not even cause a ripple.
Yeah, at the Supreme Court, it's just different. You know. Again, you know, there really is this expectation of decorum, and again I can't emphasize enough how important it is, you know, for advocates to speak to each other with respect, and
particularly to speak with the justices. And I think, you know, one of the things that got Justice Corsage so upset was that Lisa Blatt seemed to keep trying to interrupt him, and at several points he admonished to let him finish, even raising his voice one time saying I'm not finished. And so I think it was just combinations of a couple of things that sort of made it rise to the level that it did.
We'll have to see what happens next time she appears before the court. Thanks so much, Kimberly, an interesting story. That's Bloomberg Law Supreme Court Reporter Kimberly Strawbridge Robinson and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg