Advisory Opinions - Are Religious Charter Schools Legal?

Episode Date: May 1, 2025

Sarah Isgur and David French explain the upcoming Supreme Court decision regarding the public chartering of religious schools and how it might implicate the establishment clause. The Agenda:—Justice Gorsuch is the new Justice Kennedy—More on SCOTUS lie-gate—Magic and Larry Bird (Lisa Blatt and Roman Martinez)—Lisa Blatt’s apology—FBI knocks down the wrong door—Chartering religious schools—What is a charter school?—The establishment clause question Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur, that's David French, and we're going to do one of our famous, famous, David, split podcasts where we're going to talk about the facts and the precedent around the Oklahoma charter school religion case. And then we're going to talk about the oral argument on the next podcast. But first, let's do a little Supreme Court housekeeping. We've had three opinions since we've talked about opinions, David. And look, none of them are bringing down the house. But two of them were Gorsuch opinions, which is interesting because, you know, for a long

time, Justice Ginsburg was known as being the justice who got her opinions out the door first. And it's why,'s why come early December, everyone was like, oh, no opinions coming, sad. It's really not because overall the court is taking longer. I mean, they literally are, but it's because we were so used to Justice Ginsburg being the first out the door.

So it is interesting to me that Justice Gorsuch is clearing the decks. Probably means personality-wise, he's not a procrastinator, for instance, not leaving that homework till 2am the night before. So one of them was on an immigration case. It basically said you have 60 days to voluntarily leave and or like appeal that. And the question was, what if that 60 days falls on a Saturday? Do you get until Monday? And there was lots of statutory language that I think,

close call, definitely some ambiguity, but Gorsuch writing for the majority said, yeah, of course you get until Monday. Like, come on guys. It's sort of a version of lenity, David. We've talked about Justice Gorsuch's love of lenity. This obviously is not in the criminal context, but it's the same idea, right?

Like, come on, guys, the tie goes to the not government because Justice Gorsuch never is going to give the tie to the government. So it was an interesting lineup. It was Gorsuch with the Chief Justice, Sotomayor Kagan and Jackson. And then you had Thomas in dissent with Alito, Kavanaugh, and Barrett.

You had Alito and Barrett each writing their own dissents as well and Kavanaugh joined both of those. So Kavanaugh didn't write his own dissent, but he joined three of them. Which for some reason at the moment that I was reading it felt like really cranky of Justice Kavanaugh and kind of uncharacteristic. I don't think of him as like ever being cranky.

That would be like a weird day. It would definitely be like hand him a Snickers. He's like an overly optimistic person all the time. Okay, so then we got a Medicare and Medicaid decision. I'm not even gonna try. I'm not even going to try. I mean, you guys, sorry. This was a Barrett decision with the majority of the court joining.

It was just Jackson and Sotomayor in the dissent. And then David, here on Wednesday morning, we got the Feliciano case. Kind of interesting for a few reasons. One, it's a Gorsuch opinion again, and this is Gorsuch, Roberts, Sotomayor, Kavanaugh and Barrett in majority. So that's only five justices, so it's a five-four.

And in dissent, Thomas and Alito with Hagen and Jackson. You know I love that lineup. That is, I don't know if I've ever heard that lineup in my life. Thomas and Alito with Kagan and Jackson. And Gorsuch writing the majority. That is unique. It's unique. So, what was this case about?

So, this is about if you're a federal employee who is also a military reservist and you get called up, sometimes you get differential pay. As in, if you get paid more in your civilian job, your federal employment civilian job than you do in your reservist job, you get the higher pay amount if you were called up in a national emergency. The question is, okay, does it need to be you were called up because of the national emergency, or you were serving as a reservist during a national emergency, but like maybe you were called up a couple years before? I think you can guess knowing that Gorsuch wrote it, how this comes out based on what I just said about the immigration case. Yep, you get your extra

money. It doesn't matter if you were called up because it matters that you served during. So, yeah, just to like read that line up again, Gorsuch writing that you get your extra money with the chief Sotomayor, Kavanaugh and Barrett, Thomas Alito, Kagan and Jackson. No, that's not what the statute says. Okay. So can I jump in with an observation here? Gorsuch is like Kennedy in an interesting way. Justice Kennedy.

Justice Kennedy, yes. So, Gorsuch clerked for Justice Kennedy, but you wouldn't ordinarily say that they have very similar jurisprudence. I mean, Gorsuch is much more originalist than Justice Kennedy is. But Sarah, Kennedy had this, if you wanted a through line, he had this anti-bully, anti-big guy sort of jurisprudence. And it's uncanny once you start looking for it. If it's often as if Kennedy was looking at the fact pattern to see who was picking on whom,

and he was gonna side with whoever was being picked on. And in his view, sometimes he got the calculus a little bit wrong, but he genuinely had this sort of anti-bully kind of jurisprudence. And there's a lot of that in Justice Gorsuch. There's a lot of that, the lenity stuff. He's consistently, you know, his Native American jurisprudence. There's a lot of that in him.

And you're going to see this a little bit more in what we talk about later in the show or in the podcast that if you're the little guy, if you're the little guy, look to Justice Gorsuch or aim towards Justice Gorsuch and he's going to be receptive. I'm not saying that it's always this way, but there is a through line that I am seeing here. So I actually think this might be the Justice Gorsuch

dedicated podcast for this episode, more so than anything else, because at Oral Argument this week, our main event is Justice Gorsuch. So there's the one we talked about very briefly when we had Amy Howe and David Latt on and it had just unfolded. Just to remind everyone,

this was in a case about when parents can sue when their child does not get the educational support, their disabled child does not get the educational support required by the IDEA and the ADA, the Americans with Disabilities Act. So in this case, their child had seizures and the seizures were really bad in the mornings. So basically their child did have a window to learn and it was from about noon to 6 p.m. And the school that they were originally in, I think it was Kentucky, David, was great about it. And they provided instructional support from the 6. Go Kentucky. Yeah. When they moved to Minnesota, Minnesota was like, ugh, we don't want to work till 6.

That's so late. And the parents kept trying and trying and their daughter was only getting at one point, I think, two hours of educational support a day, which is bad and unfair and, well, against the law. So everyone agrees that that was against the law. The question is, do you get to sue the school? Because the school, and I'm doing some broad brush strokes here, but the school was basically like, are bad.

We just got it wrong, but we didn't mean to. And the question is, in order to recover against the school, do you have to show bad faith or just bad judgment? So, Roman Martinez, he's a repeat Supreme Court advocate, if there's ever been one. He's definitely in that like top 10 group, I would say. He represents our little girl with the seizures. I mean, the most sympathetic client ever. Lisa Blatt, I think she is, what did we say David? She's over a hundred and, I mean, just some insane number of arguments. Yeah, just insane. Yeah, yeah. So, and the only woman in the club, by the way.

This is Magic and Larry Bird, basically. Like, think of it like this. Yeah. And as we mentioned before, the last time they were together was that Andy Warhol case about whether the prints by Andy Warhol infringed on the copyright of the photographer. And it was Sotomayor versus Kagan in the majority for Sotomayor and the dissent for Kagan having these like nasty little footnote wars.

So for whatever reason, Roman and Lisa tend to bring out the spiciness of everyone. Roman says, Lisa, the school district, has changed their position and their justification several times and their theory of the case. Lisa then says, Roman is lying. And as we talked about David, it's one thing to stand up and say,

my friend on the other side misunderstands or is incorrect or is inaccurately describing the facts to you. You can say that in a pretty harsh way, but when you use the lying word like record scratch, that has a whole different connotation. So, David, I want to play this excerpt of Justice Gorsuch basically using Socratic method to chastise and punish Lisa Blatt. Because remember, these arguments are timed. So when a justice is taking up your time,

it's sort of like when a police officer pulls you over because you were speeding. I really think that like most of that 15 minutes is them just wanting to make sure that you're late to wherever you're going. And like, fair enough, there should be some minimal punishment if you were speeding. So I accept that. But think of this as a speeding ticket for Lisa Blatt. I confess I'm still troubled by your suggestion that your friends on the other side have lied.

Okay, let's help pull it out. I think we're going to have to here. And I'd ask you to reconsider that phrase. At oral argument. If I might. It was incorrect. Incorrect is fine. Oh, lying. People make mistakes.

You can accuse people of being incorrect, but lying, Ms. Blatt, if I might finish. Lying is another matter. Page one of your brief in opposition. As applied to the provision of idea services, the overlap between these statutes leads to a conceptual particularity that exists only in this context. That seems to suggest you're arguing for a unique rule. Page two. For more than 40 years, courts of appeals considering this unique subset of ADA and

rehabilitation claims, directly challenging ideas educational services widely recognize that plaintiffs must establish more. That scheme requires plaintiffs to show that school professionals acted with discriminatory intent by demonstrating that their decisions were premised on bad faith or gross judgment. Page 3. In this unique context, courts must balance the Rehabilitation Act and ADA's prohibition on disability discrimination with educators' responsibility for determining appropriate special education services, the bad faith or gross misjudgment standard. We said you need to throughout.

I'm not finished. Properly accounts for the need for deference. Page 27. As courts have recognized discrimination claims based on an IEP's adequacy or a conceptual peculiarity that exists in the primary and secondary educational context, further down the bad faith or gross misjudgment standard permits the courts to adjudicate these novel claims without requiring judges to substitute their own notions of sound educational policy for those of school authorities. Correct. One can interpret those perhaps different ways, but surely a

reasonable person could interpret them as arguing for a special rule in the educational context, correct? No, only because of the text. Miss Black. Okay, well, you know, I mean... A reasonable person. All of those emphasize the unique context of primary and secondary education

and the need for a special rule, don't they? Fine, but what I'm objecting to. Fine. Can I, come on. Then would you withdraw your accusation? I'll withdraw it. Thank you. That's it.

Now, David, I have talked to Lisa Blatt. Ah. And I have, I have reporting to present on this podcast. We have actual reporting? Oh my goodness. This is, okay, fantastic. I can't wait to hear it. Lisa Blatt called Roman Martinez after the argument

and apologized and he graciously accepted her apology. So all is well between Roman and Lisa. This was not meant to be some personal beef, a la Drake and Kendrick Lamar, all is well between Roman and Lisa. This was not meant to be some personal beef, a la Drake and Kendrick Lamar, all is well now. Well, I'm so glad to hear that. And I mean, the reason why I'm glad to hear that, I am really actually glad to hear that is more than just, okay, I don't want two outstanding Supreme Court advocates

to be sort of like, become like the crypts in the bloods. Right? But at the bloods, right? But at the same time, I also want to preserve what the court has going for it right now, which is It's the last calm place in America to address complex difficult Legal political cultural issues. I mean, it's they're addressing, not political and cultural, but it has political and cultural ramifications and certainly weighted with emotion because of political and cultural considerations.

So preserving that, this last branch of government's seriousness, sobriety, collegiality, I think is actually, I mean, this is gonna sound ridiculous, but Sarah, I actually think it's a matter of national importance. I actually do. So good on you, Lisa Blatt, for apologizing. Look, you know, this is how we preserve things.

It's actually we preserve them sometimes in the breach better than we preserve them in compliance in the sense that if you do breach it and people are imperfect, breaches are gonna happen, what is the response? Is the response to say, well, we just set the newest precedent for being a jerk in the courtroom, or do we say, no, we transgressed a standard and we're gonna backtrack from that and apologize for that. And that actually ends up reaffirming and strengthening the standard itself.

Good on Lisa for doing that. I'm very glad to hear that. I will also say that I think what makes Lisa a really effective advocate, and maybe it's because I admire this so much about Lisa and I try to emulate it myself, there's no filter. What makes her good is that she's not filtering what she's trying to argue through some other lens, the lens of helping her own career, the lens of trying to talk to one particular justice.

And so lying is a term that we all use every day. It's not some term of art. And so I can see exactly how this happened, right? She's using normal words that normal people use, as she does so effectively. Lying is something you would say more than my friend on the other side has said something inaccurate. But as you said, David, if you're that type of person, and again, I actually do try to do this on TV, and I just sort of accept that I may get fired someday because I just say something without a filter and it turned out to be the wrong thing to say.

You're going to do that sometimes. And the key is to then say like, Oh, yep, you know what? That did not come out quite the way I wanted it to. And I apologize. It's not the way I meant it. It's not what I wanted. You know, I got the speeding ticket in the courtroom. So I like Lisa's argument style a lot. I know some people find it abrasive. I find it authentic and refreshing and pretty persuasive. She comes at it with emotion, not like crying lady emotion.

I mean, more righteous. Passion, conviction. Yeah, yeah, that's a better word. And I think it can be really effective in the right case as we've seen, because it's Lisa Flippen Blatt, y'all. Well, obviously it works, obviously it works, but authenticity still has to be bounded, you know? And so I think that, you know,

I think overall this is a good story overall, and I'm glad to hear the resolution. And I don't think it'll mean that Lisa Blatt will be any less Lisa Blatt on the next oral argument. I don't doubt that at all. She I don't know if this is totally up to date. 52 times she's argued in front of the Supreme Court, the most of any woman in US history. But you know, David, we did get an interesting piece of reporting from Amy about this.

Lisa was not wearing her cowboy boots in court. And I just wonder whether that might've thrown her off her game just a little bit. I mean, yeah. Like if I'm not wearing the right piece of Grizzlies gear when I'm working on a column, I'm just kind of off. She's Texas born, UT undergrad, UT law school. The woman just needs her cowboy boots.

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plus free shipping on their best-selling Carver Mat Frame. That's A-U-R-A frames.com promo code advisory. Support the show by mentioning us at checkout. Terms and conditions apply. So David, I said this is to be the Gorsuch podcast because as you have framed this, it kind of makes some sense. Lisa was representing the school district, right? They're the bullies in that case, not the poor little girl who's just trying to get an education but needs it, you know, in the evening. So in this next case, it's even more obvious?

So in this next case, it's even more obvious? Yeah, yeah. This case is, you know, this goes to one of the, you know, one of the issues we talk about a lot. What happens, who bears the responsibility when law enforcement makes a mistake? And under what circumstances can law enforcement be held liable? Okay, so this is liable, not criminal. In other words, this is civil, not criminal. So when can they be held liable?

In this case, under the Federal Tort Claims Act, when they absolutely, totally, completely make a mistake. No question about it. And I'll just read from the Washington Post summary of the case. In the pre-dawn hours, a team of masked FBI agents armed with rifles battered down the door of an Atlanta home, detonated a stun grenade and rushed inside in search of a gang member. Agents handcuffed Hillary Hilliard Toy-Cliott and pointed a gun at both Cliott and his then partner Katrina Martin while her seven-year-old son cowered in his bedroom. But the man the FBI was looking for lived four doors away

in a home with similar features. The federal government is generally shielded from legal liability, and lower courts had dismissed the lawsuit brought by Cliat and Martin. And so the case was, under the Federal Tort Claims Act, is this the kind of tort for which you can recover against the federal government? So this is not a qualified immunity case.

This is the cases, the qualified immunity are the cases that we have talked about an awful lot where the law is essentially saying you cannot recover under civil rights statutes unless you can first establish that say a law enforcement officer or a dean of students or whatever public official violated a clearly established element of constitutional law or clearly established legal obligation. And that's a very high burden. In this case, it is around the Federal Tort Claims Act. And the Federal Tort Claims Act has some

interesting provisions in it. And so here's the key provision of the Federal Tort Claims Act. It says that district court shall have exclusive jurisdiction of civil actions on claims against the United States for money damages, for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

So that's a big, big blanket statement. And essentially it goes like this. If the government does something that would cause them to be liable if they were like say a security service and not the government, or they were a mall and not the government or they were a mall and not the government or a subdivision and not the government,

then they would be liable. That's a big, big blanket rule with a bunch of butts attached to it, a bunch of exceptions. So here is one of the exception. The provisions of section 1346B shall not apply to any claim based upon an act or omission of an employee of

the government exercising due care in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government, whether or not the discretion involved be federal agency or an employee of the government, whether or not the discretion involved be of use. So this is the discretionary function exception. If you're exercising a discretionary function,

you cannot be liable under the Federal Tort Claims Act. However, there is a proviso. Is that how you pronounce it, Sarah? Proviso, P-R-O-V-I-S-O, Proviso, okay. Provided that, oh, also there is another set of exceptions. H, any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abusive process,

libel, slander, or misrepresentation, deceit, or interference with contract rights. These are all intentional torts. Provided that, with regard to acts or omissions of investigative or law enforcement officers of the United States government, the provisions of this chapter of this title shall apply, shall apply to any claim arising out of assault, battery,

false imprisonment, false arrest, abusive process, et cetera. So this is the law enforcement officer proviso. So the question really, the court, the case had two questions presented. One of which was a little bit strange, to be honest, a little bit strange. And it was essentially that, is the plaintiff's, are the plaintiff's claims here

barred by the supremacy clause. And the other one was focused around discretionary functions and the proviso. Now, the supremacy clause, that seems a little weird. We've got a federal tort claims act. That's a federal act. Not a lot of discussion of this element of the question, of the two questions presented in the oral argument. Lots of focus on discretionary function. And I just want to, Sarah, highlight one element, because you might be saying, okay, why would you say discretionary function here?

Like, what's the discretionary function? And let's hear this exchange between Justice Gorsuch and the attorney for the government. Fred Lew, my former fellow law clerk at the Department of Justice in the Office of Legal Policy under Rachel Brand. We tried to do you proud, Rachel, but let's see how this went. Of course you know, Mr. Lew. No policy says don't break down the wrong house, the door of a house.

No, excuse me. Of course. Of course. Don't traumatize the wrong house, the door of a house. No, excuse me. Of course. Of course it's a- Don't traumatize its occupants, really? Of course it's the United States policy to execute the warrants at the right house. I should hope so. But stating the policy at that high level of generality

doesn't foreclose or prescribe any particular course of action in how an officer goes about in identifying the right house. And as the district court found at 52A, the sort of discretion left to the officers here to determine the right house is filled with policy considerations. The officers here were weighing public safety considerations, efficiency considerations, operational security, the idea that they didn't want to delay the start of the execution of the warrants because they wanted to execute all the warrants simultaneously. Those are precisely the sorts of policy tradeoffs that an officer makes in determining, well, should I take one more extra precaution to make sure

I'm at the right house? Here, petitioners suggest, for example, that the officer should have checked the house number on the mailbox. Yeah, you might look at the address of the house before you knock down the door. Yes, and as the district court found at 52A, that sort of decision is filled with policy tradeoffs because checking the house number at the end of the driveway means exposing the agents to potential lines of fire from the windows. How about making sure you're on the right street? Is that?

And how does that work? I mean, just the right windows. How about making sure you're on the right street? Is that? Just the right street? No, I mean, I was just kind of... Checking the street sign? Is that asking too much? What I would say is exactly what the courts below found, which is that the officers here made a reasonable mistake as to where they were. So here's the part that I think is really interesting. So Gorsuch asked this question, as you just heard,

about, hey guys, you wanna look at the address. And Mr. Muth. Even the right street? How about the street? Yeah, how about the street? How about the address? Come on. And you know, your friend comes right back

with an interesting, not ever back and down kind of answer, which is, yeah, okay, there's policy trade-offs there. Wait, what? Policy trade-offs? Or as Justice Gorsuch says, quote, really? The transcript does not have the question mark exclamation point, but it should have. It really should. And, you know, Lou goes through, well, then the number at the end of the driveway means exposing the agents to potential lines of fire. In other words, there are tactical considerations involved in locating the house. Okay. And I thought that was an interesting argument in the abstract, not in the concrete.

Well, he needs this to be a discretionary function. Yeah, for sure. And he's trying to show you that there are discretionary judgments and decisions being made as to how much you check that you're at the right house, that that's the discretionary function, not the knocking down the door of the wrong house, but like there's judgment calls involved because you could do a whole lot of things to down the door of the wrong house, but like there's

judgment calls involved because you could do a whole lot of things to make sure it's the right house. But of course you're not going to do every single thing. You're not going to like get the deed and measure the tract of land to make sure that it measures the same like no. And so because of that, like anything else is going to be up to the agents involved or the policies of the agency. So that's the discretionary function.

I actually thought as effective as Justice Gorsuch was as being Justice Gorsuch and clearly to your point, like making clear you are the bully government, I actually thought Fred's answers were legally important. Like there is discretion involved in this. I think the only answers he could have possibly given in that circumstance. I mean, because he, this is one of these situations

where he's walking to the courthouse with really bad facts. Well, he's gonna lose. The question is, he's going for the narrow loss. We've talked about this before, right? At oral argument, it's often not the difference between winning and losing. It's the scope of the winner-loss. So David, I don't know what you think.

I think this is gonna be 7-2 or 8-1 even. Flipping the 11th circuit, the supremacy clause stuff is gone. And I think basically they will say, there is a path through the FTCA for a plaintiff armed by wrong house raids to get their day in court. But then they're going to send it back down.

Yeah, I tend to agree with that because there was a lot of discussion in the oral argument about a narrow path victory. And, you know, the attorney for the petitioners for the plaintiffs here in this case, you could tell he knew he was winning this case and he was going for, I need the bigger win guys. Don't give me this. Give me more, give me more, give me, give me. I mean, the crumbs from the SCOTUS table are delicious. Like no one, no one doubt that. But it's all gonna be about this discretionary function.

I think Fred Lew's gonna lose the discretionary function. I think they're gonna basically kind of go with the justice gorshich. There is a correct house. There is a way to discern whether it's the correct house. I get that, yeah, there is some discretion into how one discerns it's the correct house, but that is not a discretionary function as envisioned by Congress and the text of the FTCA, therefore this is not a discretionary function.

Right, right. And I think the idea that if the court was going to say that the rule for determining the correct house has to be you walk up to the mailbox and take a close look in person at the mailbox or something that is actually- The mail inside also has the correct- Also matches, right. You have to knock on the door and ask.

Then if they confirm it's the right house, then you come knock down the door. Right, exactly. Nope, that's not gonna be it. But this idea that you can't discern what is the right house without exposing yourself to lines of fire is a little funny. Like it's a little-

Well, as Gorsuch says, you could just like expose you to lines of fire to check the street sign that's down the road and make sure you're on the right street name. How is that like exposing, how is that a policy decision? That's like all kind of. I mean, you can just use Google Maps and that's enough.

I was confused about that anyway. Like I get 10, 15 years ago. I mean, there was that time sort of when we moved from horse drawn carts to cars where there's like an in-between and both are on the road. I was very much in my 20s in the in-between time where there like was GPS, but it wasn't very good and it wasn't part of your car. And so you were still printing out directions from the internet.

But then there were directions on the internet. I mean, like that was very messy. Oh, Sarah, I had a MapQuest-related late-to-court incident once. I was going to an oral argument in Pennsylvania in a speech code case, printed out my MapQuest directions. And the thing is, the very early opening coming out of Philly to, I believe it was Harrisburg, Pennsylvania, where I was headed, there was some complex interstate switching and I made the wrong switch. But then the problem is because it's just a printed out piece of paper.

That's right. There's not some blue dot that's having you go out to New Jersey. So I realized 30 minutes in, I had been heading in the wrong direction. I flip around and I'm flying back to court. I mean, just flying. Of course I get pulled over by a state trooper. Of course, tell him, fall on my sword. Tell him this is totally my fault.

I've got three college student witnesses watching this whole thing happen. And he literally said, let me go and gave me an escort into the court. Yes. It was like the most incredible thing. And I called the court, the chambers and I said, I'm late because of my own fault, but I've got a state trooper

clear in the path for me to come in. And it was great that the chambers, the judge was very, very, very gracious. Chambers was very gracious. And we started, that was the only time in my entire career I was ever late for anything in court. And it was, that was the only time in my entire career I was ever late for anything in court. And it was, it was like a lot late. It was 30 minutes late. But I will never forget the graciousness of the, of the judge and, and we won the case. We won the case, but.

There's many ways in which my competitive advantage, like I've always said, I was trained to be the White House press secretary in like 2004. Well, it's not 2004. So I wouldn't be a very good White House press secretary now in this era. Similarly, my competitive advantage in life, David, are probably two things both involving cars. One, I'm an excellent parallel parker. Now they have like the automatic parallel parking in the cars.

And like, yeah, of course that's better than me. But like, I'm really good at it compared to other humans. So that sucks. Two, I was really good at, you know, the like spiral bound maps. So like in Cambridge, Massachusetts, where it's all cow paths and there's no grid whatsoever. I had like the spiral bound map and I was so good at using the big map, seeing which page number I needed to go for the magnified map, turning to that map. And I was so good at using the big map, seeing which page number I needed to go for the magnified map, turning to that map. And then when you would cross a street that puts you on the next map, getting to that map, like, I was excellent at that.

Well, you know, that is something that a lot of men have been very proud about themself for that deprived us of joy, because I can remember before cross country trips, it's like, all right, boys, let's pull out the axis, the atlas, the axis, the atlas, let's pull out the atlas. And you just, you plot out your course, right? And I had one of those spiral bound things in the glove compartment as well.

Phenomenal spiral bound interstate maps. And then, man, you're making me so nostalgic, Sarah. How many times did we invite people to our house and we had printed out directions to our house? That's funny. I have memorized what my mother used to say over the phone to anyone have it. Because we lived at the end of a mile long dirt road

and so you'd have to be like, basically just keep going. And so all the directions were keep going. So it was like, there's gonna be a like low laying thing that you think is a marsh, like keep going. When you hit the fork in the road, stay to the right, keep going, then it's gonna turn, keep going. If you hit the, for us if it's, if you hit the cemetery, you've gone too far.

Yeah, yeah. Cause we lived in a place that was old Zion road and we were close to Zion lane, Zion Crossing, Zion Court. So same thing, there was Pecan Creek, Pecan Lane, Pecan, yeah, there were all these pecan ones. And so we were Pecan Creek, and we were last. I suddenly realized this is not gripping podcast content. No, this is not, okay.

All right, so I mean, I basically, we think we ended that one, right? We need to go on to the Catholic Charter School. So, David, this is being argued as we tape this podcast. We listened to about the first 30 minutes, got some flavor, but I think we need to introduce the facts of this and the two questions presented because this is the case of the play on the joints between the First Amendment's free exercise clause and the First Amendment's establishment clause. So this is the first charter school that has been chartered by a state

that is a religious-run institution. It would be a 500-student online Catholic school called St. Isidore, who I guess is the patron saint of the internet. So that's cool. So the charter board of Oklahoma approves the charter for St. Isidore. They are going to teach Catholic religion in this school,

for instance. But the Oklahoma attorney General and the Oklahoma Supreme Court gnawed on this and said, charter schools are public schools. And our Constitution says that you can't have a religious public school, obviously. That would violate the Establishment Clause. And the response from the Charter Board and and Saint Isidore is, no, charter schools are a public benefit, basically. And so, like the playground equipment that we, you know, had a few terms back, if you're giving this public benefit to other schools and you don't

give it to a religious school, you're burdening our free exercise of religion. In fact, you are discriminating against religious people by not giving them this government benefit of a charter. So that tees it up pretty well, David. Is it a public school that violates the establishment clause or is it religious discrimination that violates the free exercise clause? It really is a binary choice here, Sarah. I mean, this is, in my view, it's an easy case in either direction once you decide that core issue, core question, which is, is this a public school?

Now, sharp listeners of advisory opinions, those of you who are deep in advisory opinions lore, will remember a few years ago, we talked about charter schools briefly and whether or not they're public schools in connection with a school uniform dispute, I believe, where the Biden administration was taking the position when it was arguing that the charter schools were public schools.

And charter schools have generally been viewed as public schools nationally. In other words, they're sort of seen as alternative public schools. This is, my daughter went to a charter school in Philadelphia, for example, when we were, when she was very young, and that was a public school because it was providing a free public education. And Oklahoma, when it originally enacted or created this charter school, said very clearly charter schools are public schools. That's what Oklahoma said. And so, if a charter school is a public school, then it cannot be a Catholic school. Just think of it

like this. I mean, imagine you're zoned for a school and you go and it's a Catholic school. And it would have, if it was a Catholic school, then it wouldn't be hiring, say, Muslim teachers. It would be teaching Catholic doctrine. I mean, that would, I mean, so obviously violate the establishment clause. I mean, just by no, it would be a lay down, easy, lay down, hand easy case, but if it's a private school, if it's a private school, then the school voucher cases lock in,

like Zellman v. Harris and Carson v. Macon, that essentially say, hey, if you've opened up a public benefit, if you've opened up a public benefit, if you've opened up a funding program, you cannot discriminate against religious institutions that fit within the purpose of the public program simply because they're religious. And so it really is, in my view, pretty simple here, Sarah. If the question is going to be, is this public or is this not public?

And the argument that it is public is that this fits right within the scheme of free public education that the state provides. And this is part of the free public education that the state provides, which is distinct from a private school, which might have a tuition program that everyone or has a tuition system where everyone has to pay. But for some students are gonna come in

with a government voucher that covers all or part of it. And that is not the same thing as providing a free public education. It's a subsidy for private education where you're just not excluding religious schools. And so this seems to be where this is the terrain on which this case is fought. Right. So on your view, the line is between vouchers and charter schools. So like if we made a continuum, it would be a private school that only accepts money from parents and applications or whatever, private school that accepts vouchers from the state. Then we cross the continental divide, public charter schools that have to abide by all sorts of government state regulations to be a

charter school and they have to get the charter from the state and a pure public school where it is based on your location. And you know, this has been a bone of contention for some time. What is a charter school? Because as I said, they've been viewed as public schools, but they've also been treated very differently from conventional public schools. For example, charter schools are often non-union when the public schools might be union. Charter schools might be run by for-profit corporations,

for example, where the for-profit corporation is essentially saying, hey, include our educational model in your free public education. So they're making their money by getting the money that would ordinarily be allocated to the students through the public schools into the charter school. This has been an educational innovation that's precise identity or its precise nature has been kind of in this never, never land for a while. So for me personally, and I think my prediction, pre-oral argument, if you will, is that the continental divide

is on the other side of charter schools. That in fact, charter schools are a public benefit. And so you must charter religious schools if they meet all the other criteria and they would have to abide by all sorts of anti-discrimination laws, for instance, including in admissions as well as charter schools have to do. I feel like it's a public benefit

because of course you don't have to send your kid to this school. You still always have the traditional public school option that is in your neighborhood and all of the other charter schools in the whole flippin' state if you wanted to commute, for instance. And so, in my ideal world, you have a very similar setup to what we have now with private schools and voucher schools, which is, yeah, every religion is going to accept the vouchers. This will just be that now they are in getting more of their money and abiding by more state regulations to accept children on the same basis as they would accept any other child

in the state for a free public education. With vouchers, oftentimes the voucher covers half of the tuition or something like that. This would have cut out all of that. The problem, David, is on the flip side, because if a state doesn't want to do that, this gives a lot of ammunition to the anti-charter school people, the anti-school choice people, really, to say, see, this is what happens when you do school choice. Now we have all of these religious schools being paid for by taxpayer dollars. And it's like anti-school choice on both sides. Like, look at these evangelical schools teaching, you know,

that the world was created yesterday. And look at these madrasas teaching, you know, Sharia law and all this is being paid for by your tax dollars. And they're teaching discriminatory stuff and yada yada. So now we're getting rid of all school choice. And it actually moves the conversation backward into, nope, now you have to go to the public school that you're zoned to based on where you live, which I think has always been catastrophic for children who are on the margins.

I think it has actually gotten more detrimental to those children in our sort of modern society. So I am very like, my bias is that I am not just like pro school choice. I am almost like a zealot. It should be the exclusive way that we have public education. You should be guaranteed a public education for free. And one that's within whatever of your house, but you should have the complete ability

to choose what school you go to and not forced to go to a school based on your zip code. I am very much for school choice as well, but as I have gotten, taken a longer and closer look at it, I realized that school choice is always going to be a very, very, very partial solution. In part because, it's interesting, an awful lot of people,

even when school choice is available, just aren't gonna do it. They're just not gonna do it. They're default. No, but imagine a world, I agree, but imagine this is also the horse-drawn buggy and the cars on the road at the same time. So imagine a world where we fast forward

and you just pick which, here are the four schools that are within a 20-minute drive of your house. You just pick which school your kid goes four schools that are within a 20 minute drive of your house. You just pick which school your kid goes to. This one really focuses on language. This one focuses on STEM stuff. This one's more about making sure the kids have enough outdoor playtime during the day so they don't get too antsy at their desks.

And this one, you know, sucks. Like you pick. And so it's like, now you have no choice, and you just know which school your kid goes to. And in the future, you'll get a piece of paper in the mail with four choices and you'll check a box on one and that'll be the school your kid goes to. Yeah, I would like that to exist. I would very much like that to exist. I think the problem that you see is that, and this is moving far afield from this case. Well, except it could be the result of this case. I think this case will polarize

the charter school and school choice conversation further. Yeah, I do. One thing that's interesting is in a lot of school choice advocates, and I know we're going to hear from them because a lot of folks listen, but I think one of the things a lot of school choice advocates have found is how much people are absolutely wedded to their local public school. That this kind of commitment to their local public school and to that local public school system is deeper,

especially in middle-class areas and rural areas in particular. Friday night lights, y'all. Exactly. That it becomes difficult to sort of say, okay, you can create alternatives and you should create alternatives, but the uptake on the alternatives isn't what maybe people hope for or expected

because of this deep cultural sense that the local school is kind of the default school. And I'm not, you know, I think that's eroding at the edges. I think COVID really kicked that into another gear by private schools in many ways were open before a lot of the public schools, they didn't have some of the teachers union created impediments to reopening. And so you did see a boost to private schools during COVID. But the question that I have, just from a standpoint of like, if you are a religious, let's say you're a Catholic parish, you're a diocese or you're a denomination, whatever, and you wanna open a religious charter school, the thing that gets interesting denomination, whatever, and you want to open a religious charter school, the thing that gets interesting about this, Sarah,

is from this Establishment Clause perspective, the charter regulation, the regulations of charter schools are often much more intricate and detailed and intrusive than what applies to your stereotypical private school. And so you would have part of the establishment clause analysis is entanglement, is how much is the government actually entangled in this institution. And that's one reason why I feel like it's in the absence of, in many states, really substantial reform that pushes charter

schools outside of the regulatory system that exists now, you're going to have major entanglement issues. Let's just talk about nondiscrimination, for example. How does a public school nondiscrimination regime operate on a private religious institution that has the ministerial exception. And so these kinds of things where you're blending or entangling or creating a regulatory entanglement with a religious institution, that's where you're starting to really raise the Establishment Clause concern.

And that's what I'm going to be very interested in when I see the oral argument is how much did they dive into that. So next episode we'll do a whole thing on where each of the justices came down. But just remember the Oklahoma Supreme Court said that this violated the Oklahoma Constitution, i.e. giving the charter to St. Isidore, violated the Oklahoma Constitution against establishment.e., giving the charter to St. Isidore, violated the Oklahoma Constitution against establishment, and that it did not violate the U.S. Constitution's free exercise clause. So, by virtue of the U.S. Supreme Court granting cert on this, there is a high likelihood, over 60% chance, that they're going to flip the Oklahoma Supreme Court's

decision here. How broadly they do that, how much they simply provide, here are the things to look at and send it back down. All of those are what we're looking for at the oral argument. But I think it is in your certainty for me that the Oklahoma Supreme Court decision is getting flipped one way or the other.

I would say, Sarah, what I'm very interested in is the interplay between the Blaine Amendment that Oklahoma has and the Establishment Clause. So for a long time, the Supreme Court has been casting major side eye at these state Blaine Amendments. And when we say Blaine Amendments, these are state constitutional amendments. They were enacted around the turn of the 20th century. They were inspired by this just vicious anti-Catholic senator from the state of Maine, Blaine Blaine from the state of Maine. And what it does is it prohibits any public support for what are called sectarian institutions. And now you might think in our 2025 years,

when you hear sectarian institution, you're just hearing religious. In other words, all this is, is trying to make sure that state funds aren't going to religious institutions. Why are you saying anti-Catholic? Well, because if you rewind the clock, sectarian meant Catholic. The public institutions, many of the public institutions of American life,

were thoroughly Protestant, including the public schools. The public schools would begin often with a reading from a Protestant Bible, the King James Bible, Protestant Bible. They would begin with, you know, you had the Ten Commandments. You would often sometimes begin with Protestant prayers. The schools were, the public schools were, in many the Ten Commandments. You would often sometimes begin with Protestant prayers. The public schools were in many ways Protestant schools. And so the parochial school system, the Catholic school system, was springing up parallel, and the people who were jealously guarding Protestant prerogatives didn't want Catholics anywhere near the public fisc.

And so the Blaine amendments were very explicitly anti-Catholic amendments. And since that time, the Supreme Court, while initially decades and decades passed without any real Supreme Court action on the Blaine amendments, for some time, Supreme Court's been side-eyeing these things. And so part of my, what I wonder is if they say,

enough with the Blaine Amendment, but this does violate the Establishment Clause. The Blaine Amendments are anti-Catholic bigoted relics of the past. The Establishment Clause is still a current viable provision of the Constitution. And whether, so I'm very interested in the interplay here between what the Supreme Court thinks of the Blaine amendments from a federal constitutional perspective versus what it thinks about the establishment clause here. There's a lot that is very interesting about this case, but how it comes out, I think,

is going to be pretty easily determined by that public private distinction. All right. With that, we'll see you for this next episode, where we'll break down the oral argument in great detail. You know, David, generally the Supreme Court has a hot term and then a cold term, and this is definitely one of the colder terms on the merits. Now we have the TikTok case and we have this May 15th oral argument on birthright citizenship. We will do our May 15th extravaganza, block off your Thursday mornings, woo, and afternoons, frankly, because the oral argument will go into the afternoon, I predict, and then we'll do our live breakdown after. But this, the religious charter school case, is probably in the top three hot cases of the term. The fact that it is also the last oral argument of the merits docket of the term is interesting

because we've talked about this before, justices have said it before, the cases argued in April get short shrift. And so to have to decide this case and write it faster than any other case on the merits docket is not great for the big cases. We saw that in the Trump immunity case. Forget the outcome, whether you like that or not, the actual opinion left something to be desired in its sort of writing and outlining perhaps.

Yeah, we still don't know if you can prosecute a president for bribery. Yeah, well, and some of that is normally, a case were argued in November, the majority would circulate its decision, let's say in January, then the dissent circulates a few weeks later, then the majority adjusts their opinion to answer some of the criticisms of the dissent. And you few weeks later, then the majority adjusts their opinion

to answer some of the criticisms of the dissent, and you kind of have this back and forth. When it's the last argument, and they're already backed up writing all of the other decisions that have been assigned to them, there's just not a lot of that back and forth. And so it doesn't sand down the majority opinion as well, and make it like shiny and smooth. So don't love that this is the

last oral argument of the term. But hopefully because as you say, David, it's actually a very discrete question in some ways. What is a public school that might help? So we'll see. Yeah. You know, it's interesting how things change, Sarah, because in previous years, you might just say because of the Skirmety case, which is the youth gender transition case, the Paxton case, which is youth exposure to pornography, the charter school case, that you would say, whoa, this is a major culture war term. And maybe five years ago, it would be like five years ago, could you imagine the heat and intensity around the youth gender transition case?

Instead, these feel like the skirmishes when like the Civil War is done, but they're still like having some outlying fights over in the West. Yeah. I mean, now the it's very interesting because now the the youth gender transition issue has gone from top of the culture war to like an 80-20 issue. Youth exposure to pornography, I mean, it's been a long time since there was sort of this virulent pro-pornography free speech movement. Now there's a lot more understanding of what happens to kids and porn and porn exposure to kids and etc. So this might be one of these sort of like 80, 20 issues.

And so the culture war is not static. It absolutely evolves and morphs and changes quite a bit. And so this would be a red hot culture war term, just a few years ago. But now what's red hot is much more related to the person of Donald Trump than it is to the underlying culture war issues that really used to generate an immense amount of heat.

And with that, we'll see you next time on Advisory Opinions. Oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo