WEBVTT - SCOTUS Clash Over Religious Charter Schools 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.880 --> 0:00:13.360 It's a case that could lift longstanding constitutional limits on 0:00:13.520 --> 0:00:18.119 government support for religion, and the sharp ideological divide on 0:00:18.200 --> 0:00:21.840 the Court was apparent in the oral arguments over whether 0:00:21.920 --> 0:00:26.439 to allow the country's first publicly funded religious charter school 0:00:26.520 --> 0:00:30.360 in Oklahoma. Four of the conservative justices seemed to be 0:00:30.560 --> 0:00:34.640 firmly on the side of the Catholic charter school, suggesting 0:00:34.680 --> 0:00:40.000 that the state is unconstitutionally disfavoring religion by requiring public 0:00:40.120 --> 0:00:44.159 charter schools to be secular. Justice Brett Kavanaugh called it 0:00:44.400 --> 0:00:46.599 rank discrimination against religion. 0:00:47.320 --> 0:00:50.120 And then you come in and you say, oh, we're 0:00:50.159 --> 0:00:53.960 a religious school. It's like, oh, no, can't do that. 0:00:53.960 --> 0:00:57.080 That's too much, that's scary. We're not going to do that. 0:00:58.200 --> 0:01:01.040 And our cases have made very and I think those 0:01:01.040 --> 0:01:03.800 are some of the most important cases we've had of 0:01:03.840 --> 0:01:08.480 saying you can't treat religious people and religious institutions and 0:01:08.560 --> 0:01:12.039 religious speech as second class in the United States. 0:01:12.640 --> 0:01:17.319 But the three liberal justices emphasized that taxpayer funded religious 0:01:17.360 --> 0:01:21.520 schools would entangle church and state in violation of the 0:01:21.640 --> 0:01:26.880 establishment clause of the First Amendment. Here's Justice Sonya Sotomayor. 0:01:26.959 --> 0:01:30.840 Because the essence of the establishment clause was we're not 0:01:30.959 --> 0:01:38.080 going to pay religious leaders to teach their religion. That 0:01:38.640 --> 0:01:42.000 is and has always been the essence. And here we're 0:01:42.040 --> 0:01:47.920 paying Catholic leaders Catholic teachers. You can only be a 0:01:47.960 --> 0:01:51.480 teacher in this school if you're willing to accept the 0:01:51.520 --> 0:01:53.080 teachings of the Catholic Church. 0:01:53.720 --> 0:01:57.080 My guest is First Amendment law expert Caroline Malik KORbin, 0:01:57.200 --> 0:02:01.000 a professor at the University of Miami Law School. Caroline, 0:02:01.040 --> 0:02:02.600 what's at stake in this case? 0:02:03.360 --> 0:02:07.600 So the ultimate question is whether the Supreme Court will 0:02:07.640 --> 0:02:13.520 require the state of Oklahoma to directly fund a religious 0:02:13.800 --> 0:02:19.120 charter school. That's the big picture. Basically, Oklahoma has a 0:02:19.200 --> 0:02:22.519 charter school program, as do most states. As a matter 0:02:22.560 --> 0:02:26.880 of fact, it's supposed to be another alternative to regular 0:02:27.000 --> 0:02:32.320 public schools, and the school bar charged with approving charter 0:02:32.440 --> 0:02:38.960 schools approved a Catholic charter school. A Catholic charter school 0:02:39.120 --> 0:02:44.639 would violate the Oklahoma Constitution, and so the Attorney General 0:02:45.240 --> 0:02:49.640 challenged that on the grounds it violated two separate provisions 0:02:49.639 --> 0:02:53.040 of the Oklahoma Constitution as well as the US Constitution. 0:02:53.320 --> 0:02:58.480 Because the Oklahoma Constitution makes it very clear that taxpayer 0:02:58.480 --> 0:03:02.919 money cannot be used who is, to fund religious proselytization 0:03:03.160 --> 0:03:06.720 and indoctrination. And there is a separate provision of the 0:03:06.760 --> 0:03:14.240 Oklahoma Constitution that says public education must be non sectarian. 0:03:14.440 --> 0:03:19.640 In other words, public education must be secular. That's the 0:03:19.720 --> 0:03:24.320 Oklahoma Constitution. There is also, of course, the US Constitution's 0:03:24.480 --> 0:03:29.920 Establishment Clause, which has long been understood to ban direct 0:03:30.240 --> 0:03:37.200 fundings using taxpayer money to fund religious education, religious proselytization, 0:03:37.440 --> 0:03:41.600 religious doctrination. And that went all the way up to 0:03:41.800 --> 0:03:47.320 the Oklahoma court until the Oklahoma Supreme Court said, you 0:03:47.360 --> 0:03:51.880 know what, it does violate the Oklahoma Constitution does violate 0:03:52.440 --> 0:03:57.320 US constitutions for Oklahoma to have a religious charter school. 0:03:57.640 --> 0:04:02.480 And then the charter school and the board that approved 0:04:02.520 --> 0:04:07.400 it appeal to the Supreme Court and they claim that 0:04:07.560 --> 0:04:15.320 Oklahoma's refusal the Holy fund that Catholic charter school violated 0:04:15.360 --> 0:04:18.600 the free exercise clause of the US Constitution. And that 0:04:18.880 --> 0:04:20.920 was what the case was before the Supreme. 0:04:20.600 --> 0:04:24.440 Court explain why. A key issue is whether the religious 0:04:24.600 --> 0:04:27.039 charter school is public or private. 0:04:28.080 --> 0:04:31.400 So that's the million dollar question. There was a dispute 0:04:31.960 --> 0:04:37.120 on whether to characterize charter schools as public schools or 0:04:37.200 --> 0:04:42.400 private schools, and that category makes a huge difference under 0:04:42.400 --> 0:04:48.159 the doctrines, because under existing precedent, if charter schools are 0:04:48.320 --> 0:04:54.280 in fact public schools, then Oklahoma is absolutely free to 0:04:54.440 --> 0:04:58.680 insist that they remained secular. On the other hand, if 0:04:58.680 --> 0:05:03.159 they are considered private school there is a trio of 0:05:03.240 --> 0:05:07.240 Supreme Court cases that have held that if the government 0:05:07.600 --> 0:05:14.159 makes taxpayer money available to private secular schools, it has 0:05:14.279 --> 0:05:18.960 to make that money equally available to private religious schools. 0:05:19.360 --> 0:05:24.599 So it really really matters whether the charter schools are 0:05:24.760 --> 0:05:29.520 public schools, in which case Oklahoma can keep them secular, 0:05:30.160 --> 0:05:33.920 or whether they're private schools, in which case the Supreme 0:05:33.960 --> 0:05:39.360 Court will hold that denying them equal access to government 0:05:39.480 --> 0:05:44.400 money amounts to discrimination against religion and that would violate 0:05:44.440 --> 0:05:45.680 the free exercise costs. 0:05:46.040 --> 0:05:50.400 The liberal justices went through pains to try to point 0:05:50.440 --> 0:05:53.000 out that the charter school is public, and then the 0:05:53.080 --> 0:05:56.520 conservatives went to pains to try to prove that it 0:05:56.600 --> 0:05:57.240 was private. 0:05:57.680 --> 0:06:00.679 Which do you think exactly? I think that the weight 0:06:00.760 --> 0:06:05.280 of evidence is that these schools are public. For various reasons. 0:06:05.680 --> 0:06:08.920 The state creates them, and the state can end them. 0:06:09.440 --> 0:06:10.960 They really have all the. 0:06:10.920 --> 0:06:15.320 Hallmarks of a public school. They are free, they're open 0:06:15.400 --> 0:06:19.039 to everyone, they're completely funded by the states, and the 0:06:19.120 --> 0:06:24.359 curriculum is subject to detailed oversight by the state. The 0:06:24.480 --> 0:06:28.920 teachers or subject to all the same benefits and regulations 0:06:28.920 --> 0:06:34.559 as public school teachers. Congress. When Congress enacted the law 0:06:34.600 --> 0:06:39.600 that allowed for charter schools, they characterized them as public schools. 0:06:39.800 --> 0:06:45.880 But especially important is that the Supreme Court of Oklahoma, 0:06:46.120 --> 0:06:52.200 in interpreting Oklahoma law, said this law creates public schools. 0:06:52.640 --> 0:06:56.480 The reason why that is so significant is that traditionally 0:06:56.960 --> 0:07:01.440 the state supreme court is the final arbiter of what 0:07:01.760 --> 0:07:05.400 a state law does. And if the state Supreme Court 0:07:05.440 --> 0:07:10.360 of Oklahoma says this Oklahoma law creates public schools, that 0:07:10.480 --> 0:07:13.400 is supposed to be entitled to deference by the Supreme Court. 0:07:13.520 --> 0:07:17.160 That's sort of a basic principle of federalism. The state 0:07:17.240 --> 0:07:21.160 courts are the ones who interpret what state law means. 0:07:21.280 --> 0:07:26.080 So there really is a lot of reasons to conclude 0:07:26.320 --> 0:07:30.920 that these schools are ultimately public schools, not private. 0:07:32.680 --> 0:07:37.640 How did the conservatives answer the liberal justices questions about 0:07:37.680 --> 0:07:41.800 the establishment clause and how a taxpayer funded school would 0:07:41.960 --> 0:07:44.120 entangle church and state. 0:07:44.840 --> 0:07:47.400 So that's the first thing to note is in the 0:07:47.720 --> 0:07:51.480 justice's mind, what's going on here is that the state 0:07:51.640 --> 0:07:55.920 has created a program and made a benefit available, and 0:07:56.120 --> 0:08:00.760 consequently it has to be made available equally to religious 0:08:00.760 --> 0:08:05.360 and secular schools, otherwise violates the free exercise clause. That 0:08:05.440 --> 0:08:10.600 it might be intention with the Establishment clause doesn't matter 0:08:10.760 --> 0:08:14.920 to these Supreme Court justices who always privilege the free 0:08:14.960 --> 0:08:19.520 exercise clause over the Establishment clause. So in their mind, 0:08:19.600 --> 0:08:22.640 if it is required to give the schools money by 0:08:22.640 --> 0:08:26.840 the free exercise clause, then by definition it can't violate 0:08:26.880 --> 0:08:30.440 the Establishment clause, and so they might simply not reach 0:08:30.840 --> 0:08:36.640 the establishment clause problem that it is very firmly established 0:08:36.640 --> 0:08:42.400 in establishment clause jurisprudence that the government cannot directly give 0:08:42.720 --> 0:08:48.640 money to religious organizations for the purpose of religious indoctrination 0:08:49.120 --> 0:08:54.440 and religious education. The state cannot give directly money if 0:08:54.440 --> 0:08:58.080 the money ends up at a school indirectly, that is 0:08:58.120 --> 0:09:01.840 okay under another case. But for the government to take 0:09:01.920 --> 0:09:05.479 money from its coffers and put it into the coffers 0:09:05.520 --> 0:09:09.360 of a private religious school that then uses the money 0:09:09.760 --> 0:09:16.559 for religious education and doctrination prostimization. Even under current Establishment 0:09:16.600 --> 0:09:22.679 Clause law, which is highly weakened even today, that's still unconstitutional. 0:09:23.280 --> 0:09:27.880 Did you see the three liberals on one side, four 0:09:27.960 --> 0:09:30.720 of the conservatives on the other. And then is Chief 0:09:30.880 --> 0:09:32.959 Justice John Roberts the pivotal vote. 0:09:33.559 --> 0:09:38.480 He is because Justice Barrett recused herself because of her 0:09:38.840 --> 0:09:43.040 close connection with someone involved in the litigation, and so 0:09:43.200 --> 0:09:47.120 the Conservatives don't have a cushion as they normally do. 0:09:47.559 --> 0:09:51.640 They need Justice Roberts in this case in order to prevail, 0:09:51.840 --> 0:09:56.120 because if it is a four to four tie in 0:09:56.200 --> 0:10:02.080 that situation, the lower court decision stands, which is the 0:10:02.160 --> 0:10:07.160 Oklahoma Supreme Court's decision that it would violate the state 0:10:07.240 --> 0:10:12.840 and federal constitutions to create a religious charter school wholly 0:10:12.880 --> 0:10:13.880 funded by the state. 0:10:14.480 --> 0:10:17.000 And Roberts didn't tip his hand as to which way 0:10:17.040 --> 0:10:20.960 he was leaning. But if the Conservatives do have the votes, 0:10:21.800 --> 0:10:23.560 what might the decision look like. 0:10:24.400 --> 0:10:27.800 Well, there are two ways they can rule in favor 0:10:28.240 --> 0:10:31.920 of the charter schools, and I think one is significantly 0:10:31.960 --> 0:10:35.160 more likely than the other. The first way is the 0:10:35.200 --> 0:10:38.560 one I've suggested already, is that they conclude that these 0:10:38.559 --> 0:10:43.920 are private schools and accordingly, under existing precedent, the state 0:10:44.080 --> 0:10:47.840 has to give them the same opportunities of state funding 0:10:48.040 --> 0:10:52.520 as they give private secular charter schools. And there they 0:10:52.520 --> 0:10:56.280 would insist that this is no change in the law whatsoever. 0:10:56.600 --> 0:11:00.680 It's just a continuation of their previous rulings that hold 0:11:01.080 --> 0:11:05.680 that if the government makes a benefit available, it has 0:11:05.760 --> 0:11:09.640 to make it equally available to private religious schools and 0:11:09.920 --> 0:11:15.320 private secular schools. It could say that these are public schools, 0:11:15.960 --> 0:11:20.120 but still in terms of the charter school program, it 0:11:20.240 --> 0:11:24.560 has to offer the opportunity to create both secular charter 0:11:24.640 --> 0:11:29.040 schools and religious charter schools. But there's no reason for 0:11:29.080 --> 0:11:32.200 them to rule in that way if they can take 0:11:32.240 --> 0:11:37.200 the much simpler path of simply claiming, contrary to the 0:11:37.240 --> 0:11:41.720 evidence and Congress and the Oklahoma Supreme Court, that these 0:11:41.760 --> 0:11:46.120 are private schools. And this is just another case of 0:11:46.160 --> 0:11:50.120 the state discriminating against religion by denying its funding that 0:11:50.200 --> 0:11:52.600 it makes available to their specular counterpart. 0:11:52.960 --> 0:11:56.600 Coming up the court string of decisions allowing public funds 0:11:56.600 --> 0:12:01.120 to be used by religious institutions. This is bloomberg. The 0:12:01.160 --> 0:12:06.240 Supreme Court's conservative majority has repeatedly sided with religious interests 0:12:06.280 --> 0:12:10.840 in recent years. In three cases since twenty seventeen, the 0:12:10.880 --> 0:12:14.320 Court has allowed public funds to go to religious entities, 0:12:15.080 --> 0:12:17.440 and in a case over whether to allow the country's 0:12:17.480 --> 0:12:21.960 first publicly funded religious charter school in Oklahoma, four of 0:12:21.960 --> 0:12:25.560 the conservative justices seemed to be firmly on the side 0:12:25.559 --> 0:12:29.240 of the Catholic charter school, suggesting that the state is 0:12:29.400 --> 0:12:35.480 unconstitutionally disfavoring religion by requiring public charter schools to be secular. 0:12:36.480 --> 0:12:39.400 Justice Brett Kavanaugh seemed to acknowledge that the Court has 0:12:39.440 --> 0:12:44.439 been rewriting the interpretation of the Constitution's religion clauses when 0:12:44.440 --> 0:12:49.360 he told Oklahoma's attorney former Solicitor General Gregory Garr that 0:12:49.400 --> 0:12:53.440 the Court now has a different constitutional understanding than it 0:12:53.520 --> 0:12:56.679 did since the beginning of the charter school program in 0:12:56.800 --> 0:12:57.880 nineteen ninety four. 0:12:58.480 --> 0:13:00.400 But this is going to have a dramatic fact on 0:13:00.480 --> 0:13:02.960 charter schools across the country. And just think of the 0:13:03.000 --> 0:13:06.040 federal charter school program on its own. I don't think 0:13:06.360 --> 0:13:09.360 you can't just say, like, oh, well, just you know, Grant, well. 0:13:09.280 --> 0:13:12.559 It's not good that the premise of that was that 0:13:12.840 --> 0:13:17.240 at that point it was considered constitutional to discriminate against 0:13:17.240 --> 0:13:20.760 religious entities and that you know, that's some of our 0:13:20.840 --> 0:13:23.080 case law has changed that and said no, it's not 0:13:23.200 --> 0:13:26.720 constitutional discriminate against private and that's. 0:13:26.840 --> 0:13:29.760 I've been talking to Professor Caroline malt Corbin of the 0:13:29.880 --> 0:13:34.479 University of Miami Law School. Caroline. Later in that interchange, 0:13:35.040 --> 0:13:39.960 Kavanaugh said, there was a different constitutional understanding, yes. 0:13:40.000 --> 0:13:44.840 And this different constitutional understanding is a constitution without the 0:13:44.920 --> 0:13:49.160 establishment clause. Because it's very important to realize that religious 0:13:49.280 --> 0:13:54.680 organizations are treated differently under the Constitution. They get certain 0:13:54.760 --> 0:13:59.160 benefits under the free exercise clause. So for example, religious 0:13:59.200 --> 0:14:03.080 schools or an titled to a ministerial exemption, which means 0:14:03.120 --> 0:14:09.079 that their teachers can't bring discrimination claims. It means that 0:14:09.120 --> 0:14:12.599 they often get extra tax breaks that others do not. 0:14:13.360 --> 0:14:17.600 There are definitely benefits to being a religious school, but 0:14:17.760 --> 0:14:21.080 it had long been any understanding that being religious brought 0:14:21.200 --> 0:14:27.280 not only special benefits but also certain restrictions. And one 0:14:27.320 --> 0:14:32.360 of those restrictions was a, for example, limit on the 0:14:32.560 --> 0:14:35.000 kind of funding you could get from the government. 0:14:35.280 --> 0:14:36.840 And so there was. 0:14:36.960 --> 0:14:41.960 Long this balance where in some ways religious schools got 0:14:42.000 --> 0:14:45.960 certain benefits, but in some ways they had certain restrictions 0:14:46.320 --> 0:14:49.960 from the benefits from the free exercise clause, the restrictions 0:14:50.040 --> 0:14:53.480 imposed by the Establishment Clause. But what the Roberts Court 0:14:53.840 --> 0:14:59.640 has done and reconfiguring the religious liberty clauses, it has 0:15:00.160 --> 0:15:07.920 expanded the privileges of religious organizations while eliminating the prior limits. 0:15:08.440 --> 0:15:10.960 And one way they've been doing that is with this 0:15:11.160 --> 0:15:15.040 flate of hand. The slate of hand is what were 0:15:15.240 --> 0:15:21.120 previously understood as Establishment Clause limits on for example, government 0:15:21.200 --> 0:15:26.640 funding now has become religious discrimination right. So again, one 0:15:26.680 --> 0:15:30.440 of the basic premises of the Establishment clause is that 0:15:30.480 --> 0:15:35.120 the government does not fund religions. In various ways, the 0:15:35.720 --> 0:15:40.040 Supreme Court generally pretends to the Establishment clause does not 0:15:40.160 --> 0:15:44.160 exist and insists that any time the government does not 0:15:44.320 --> 0:15:49.280 fund religion, it is discriminating against religion because it's funding 0:15:49.320 --> 0:15:56.200 secular organizations. So basically, what they've done is they've taken 0:15:56.360 --> 0:16:00.640 this balanced approach towards religion, where sometimes it gets special 0:16:00.680 --> 0:16:04.880 benefits and sometimes it's subject to special limits, and it's 0:16:04.960 --> 0:16:12.480 eliminated the limits by re characterizing a constitutional requirement as 0:16:12.760 --> 0:16:16.880 just hostility to religion. So in their minds, the reason 0:16:17.240 --> 0:16:22.120 that Oklahoma doesn't want to fund a religious school a 0:16:22.200 --> 0:16:26.480 religious charter school is not because the Constitution limits it, 0:16:26.960 --> 0:16:29.400 which it does both the state and credal but because 0:16:29.400 --> 0:16:33.640 they're hostile religious. So that's the switch. Right, limits that 0:16:33.720 --> 0:16:38.160 were constitutionally required, limits that were understood to be required 0:16:38.400 --> 0:16:44.720 by the Constitution's Establishment Clause, don't exist. Instead, those limits 0:16:44.760 --> 0:16:50.120 only reflect hostility to religion, not an attempt to honor 0:16:50.200 --> 0:16:53.280 the Establishment Clause. And I'm just going to say one 0:16:53.320 --> 0:16:56.480 more thing. This is my pitch for the establishment clause. 0:16:57.080 --> 0:17:02.520 The Establishment Clause is a protecting religion. One of the 0:17:02.640 --> 0:17:07.800 main things the Establishment Clause does is by insisting on 0:17:07.960 --> 0:17:13.600 some degree of separation between church and state. It's protecting religion. 0:17:13.880 --> 0:17:18.560 It's protecting the favored religion, because anytime church and state 0:17:18.640 --> 0:17:23.760 gets entangled, it tends to degrade the religion, it tends 0:17:23.840 --> 0:17:29.480 to demean it in some way. And also, anytime the 0:17:29.520 --> 0:17:33.760 government gets involved with religion, it usually ends up favoring 0:17:33.840 --> 0:17:38.760 one religion to the detriment of others. And so insisting 0:17:39.119 --> 0:17:42.199 on the separation from church and state is so important 0:17:42.520 --> 0:17:46.800 to protecting minority religion. So I just want to emphasize 0:17:46.880 --> 0:17:51.280 that the Robberts Court is often characterized as being very 0:17:51.320 --> 0:17:56.800 pro religion, but that's not quite accurate if it's eliminating 0:17:56.840 --> 0:18:00.840 the establishment clause, because one of the things the establishment 0:18:00.880 --> 0:18:04.960 clause does is protect minority Rely, let's. 0:18:04.800 --> 0:18:09.800 Talk about this string of decisions since twenty seventeen, the 0:18:09.840 --> 0:18:13.480 Court said that Missouri violated the free exercise right of 0:18:13.800 --> 0:18:18.040 a Christian learning center when it denied grant funding to 0:18:18.119 --> 0:18:24.200 resurface its playground. Twenty twenty, Montana couldn't exclude religious schools 0:18:24.240 --> 0:18:27.840 from a program providing tax credits, and twenty twenty two, 0:18:28.160 --> 0:18:32.480 main can't limit a tuition assistance program. This seems like 0:18:32.640 --> 0:18:33.840 just the next step. 0:18:35.119 --> 0:18:38.679 This is the next step. That's the precedent that the 0:18:38.720 --> 0:18:43.760 Supreme Court will recite when they says this is a 0:18:43.880 --> 0:18:48.240 very straightforward case. If they do rule in favor of 0:18:48.320 --> 0:18:52.240 the Catholic charter school, they're going to say it's private, 0:18:52.680 --> 0:18:56.120 and as we have established in our three prior cases, 0:18:56.480 --> 0:19:01.800 the government cannot discriminate against private religion schools. See all 0:19:01.840 --> 0:19:03.760 those three cases you just mentioned. 0:19:04.880 --> 0:19:07.199 What will a ruling like that mean for the forty 0:19:07.240 --> 0:19:12.480 five states that require charter schools to be both public 0:19:12.680 --> 0:19:18.120 and non sectarian, as well as the federal charter school program. 0:19:18.480 --> 0:19:23.919 It's a bit of a disaster because every state just 0:19:24.000 --> 0:19:29.560 about has a charter program, and every state is assuming 0:19:29.600 --> 0:19:34.399 those charter programs amount of public schools, and so maybe 0:19:34.400 --> 0:19:38.240 not every state. I think they mentioned California quite So. 0:19:38.400 --> 0:19:43.879 What it means is it throws into question the constitutionality 0:19:44.600 --> 0:19:50.960 of every charter program because they all currently exclude religious 0:19:50.960 --> 0:19:54.959 schools on the assumption that these are public schools, and 0:19:55.000 --> 0:19:59.040 you can't use government money to fund a religious public school. 0:20:00.080 --> 0:20:02.520 So there's going to be a lot of legal uncertainty 0:20:03.200 --> 0:20:07.720 about the exact status of the charter schools in every 0:20:07.800 --> 0:20:12.520 state because each of them has slightly different rules, and 0:20:12.600 --> 0:20:16.240 so there will be litigation in fifty states about whether 0:20:16.840 --> 0:20:21.960 their particular charter school program creates private schools public schools. 0:20:23.000 --> 0:20:28.920 It also throws into question some federal funding. I think 0:20:29.119 --> 0:20:35.920 one that the council recommended was the Special Federal Funding 0:20:35.960 --> 0:20:40.240 for Student with Disabilities, the Idea Act, the Individuals with 0:20:40.359 --> 0:20:46.000 Disability and Education Act, where charter schools get federal funding 0:20:46.560 --> 0:20:50.280 for their disabled students on the assumption that their public 0:20:50.359 --> 0:20:54.239 school I think that's what it was. I'm not one 0:20:54.280 --> 0:20:57.480 hundred percent on that. And then there are some other 0:20:57.680 --> 0:21:01.120 states that make it very clear that no money at 0:21:01.119 --> 0:21:05.800 all can go to any private school, and so they 0:21:05.840 --> 0:21:09.680 will have to rethink their charter school programs. So that's 0:21:09.800 --> 0:21:13.000 just the confusion that he emphasized. But in terms of 0:21:13.119 --> 0:21:18.760 church state, it means that once again money will be 0:21:18.920 --> 0:21:27.200 siphoned from the public school educational system into religious schools. Now, 0:21:27.880 --> 0:21:30.240 if the new rule is you have to be open 0:21:30.400 --> 0:21:35.800 to religious charter schools, it's going to be any religion 0:21:35.920 --> 0:21:39.359 can have a charter school. In theory, that's the theory, right, 0:21:39.440 --> 0:21:42.679 because otherwise you'd be discriminating against some religion over the others. 0:21:42.720 --> 0:21:47.680 But the reality is that the vast majority of these 0:21:47.760 --> 0:21:51.400 charter schools are going to be Christian schools, just as 0:21:51.440 --> 0:21:56.840 we saw in voucher programs that the vast majority of 0:21:57.119 --> 0:22:02.480 private schools getting vouchers are christ In private schools. And 0:22:02.560 --> 0:22:08.040 so this will be a significant channeling of your money 0:22:08.400 --> 0:22:13.040 and my money to religious schools who are going to 0:22:13.080 --> 0:22:17.920 be indoctrinating their students in beliefs that might be antithetical 0:22:18.080 --> 0:22:19.720 to our own religious beliefs. 0:22:20.200 --> 0:22:23.320 States would be able to rewrite their charter rules, right, 0:22:23.480 --> 0:22:25.440 I don't eliminately. 0:22:25.400 --> 0:22:25.560 But. 0:22:27.359 --> 0:22:30.639 I don't know how easy that will be. I don't 0:22:30.720 --> 0:22:31.960 know how long. 0:22:31.800 --> 0:22:32.600 That will take. 0:22:32.880 --> 0:22:35.640 We don't know what the impact will be in the 0:22:35.680 --> 0:22:40.800 next school year. So yes, it is entirely possible to 0:22:41.119 --> 0:22:45.920 completely revamp your charter school system to make it one 0:22:46.000 --> 0:22:50.679 hundred percent clear that these are public schools, although you know, 0:22:50.840 --> 0:22:54.920 they kind of already made it clear that they were 0:22:54.960 --> 0:22:57.919 public schools. I don't know if any state could be 0:22:57.960 --> 0:23:01.920 confident that the Supreme Court wouldn't come back and say, well, actually, 0:23:02.840 --> 0:23:05.159 you thought you were complying with the factors that we 0:23:05.280 --> 0:23:09.240 listed as defining what's a public school as opposed to 0:23:09.240 --> 0:23:13.439 a private school. But we're moving the goalposts again as. 0:23:13.280 --> 0:23:17.360 They've been moving it in these religion cases. Always a pleasure, Caroline, 0:23:17.359 --> 0:23:21.320 Thanks so much. That's Professor Caroline Malcorbin of the University 0:23:21.320 --> 0:23:24.600 of Miami Law School. Coming up next on The Bloomberg 0:23:24.680 --> 0:23:29.560 Law Show. Supreme Court oral arguments where civility is usually 0:23:29.680 --> 0:23:34.080 prized turned unusually hostile in a case involving a Minnesota 0:23:34.160 --> 0:23:39.640 school district and a disabled student. Supreme Court oral arguments 0:23:39.680 --> 0:23:44.200 take place in a rarefied atmosphere where civility is prized 0:23:44.480 --> 0:23:48.360 and your opponents are not adversaries, and your opponents are 0:23:48.400 --> 0:23:52.359 not called adversaries but rather friends. On the other side, 0:23:53.000 --> 0:23:56.760 but not so. During Monday's oral arguments involving a Minnesota 0:23:56.840 --> 0:24:01.119 school district and a disabled student, just Is Neil Gorsich 0:24:01.240 --> 0:24:05.119 took Lisa Blott, the attorney for the school district, to task. 0:24:05.720 --> 0:24:06.520 You believe that. 0:24:06.760 --> 0:24:09.080 Mister Martinez and the Solicitor General are. 0:24:09.000 --> 0:24:11.800 Lying in or argument? Yes? 0:24:11.920 --> 0:24:13.320 Absolutely, it is not. 0:24:13.160 --> 0:24:15.280 True that we should be more careful with your works. 0:24:15.280 --> 0:24:18.000 Okay, well, they should be more careful in character mischaracterizing 0:24:18.000 --> 0:24:21.240 a position by an experienced advocate of the Supreme. 0:24:20.880 --> 0:24:25.639 Court, and Blott is certainly an experienced advocate. But Justice 0:24:25.640 --> 0:24:29.120 Gorsic apparently couldn't let it go and returned to it 0:24:29.240 --> 0:24:32.040 later in the argument not to set the law. 0:24:32.240 --> 0:24:36.960 Miss, Yeah, I confess I'm still troubled by your suggestion 0:24:37.200 --> 0:24:39.399 that your friends on the other side have lied. 0:24:39.600 --> 0:24:40.800 Okay, let's help pull up. 0:24:40.880 --> 0:24:44.359 Yeah, I think we're going to have to here, and 0:24:44.400 --> 0:24:48.000 i'd ask you to reconsider that phrase argument if I 0:24:48.080 --> 0:24:52.840 might it was incorrect. If incorrect is fine. People make mistakes. 0:24:53.720 --> 0:24:57.120 You can accuse people being incorrect lying, Miss Blatt, if 0:24:57.119 --> 0:24:59.639 I might finish sure, lying is another matter. 0:25:00.119 --> 0:25:04.280 Blatt eventually withdrew her comment, joining me is Bloomberg Law 0:25:04.320 --> 0:25:09.520 Supreme Court reporter Kimberly Strawbridge Robinson who heard it all. Kimberly, 0:25:10.000 --> 0:25:14.440 the oral arguments are usually very civil. Even when questioning 0:25:14.720 --> 0:25:18.240 gets aggressive, you rarely even hear raised voices. 0:25:19.600 --> 0:25:22.320 That's right. I mean, there's a level of decorum that's 0:25:22.359 --> 0:25:25.959 expected within the Supreme Court even while debating you know, 0:25:26.080 --> 0:25:29.320 really hotly contested issues. And I think one of the 0:25:29.359 --> 0:25:32.439 things that really sort of demonstrates this is that the 0:25:32.520 --> 0:25:36.840 advocates are encouraged by the justices to refer to opposing 0:25:36.920 --> 0:25:40.400 counsel as my friend on the other side. You'll even 0:25:40.440 --> 0:25:43.040 hear attorneys correct themselves if they say, you know, my 0:25:43.080 --> 0:25:46.680 opposing council though quickly correct them of selves and say, 0:25:46.800 --> 0:25:49.600 you know, as my friend on the other side said. So, 0:25:49.640 --> 0:25:52.480 it really is a place that's defined by civility. 0:25:53.320 --> 0:25:56.000 So now tell us about the case at the Court 0:25:56.080 --> 0:25:59.720 on Monday involving a Minnesota school system. Generally what it 0:25:59.720 --> 0:26:01.720 was A yeah, I mean. 0:26:01.640 --> 0:26:04.639 I think the broadest level of this case is about 0:26:05.000 --> 0:26:09.040 disability discrimination in public schools. It's a very technical case 0:26:09.400 --> 0:26:13.240 on the interaction of several federal statutes, but at a 0:26:13.440 --> 0:26:16.919 part it's about when schools can be held liable for 0:26:17.040 --> 0:26:18.280 disability discrimination. 0:26:19.400 --> 0:26:25.000 And Lisa Blatt is an experienced Supreme Court advocate. She's 0:26:25.200 --> 0:26:28.119 argued more than fifty cases before the court. 0:26:29.320 --> 0:26:33.040 Yeah, I mean, she's one of a handful of individuals 0:26:32.560 --> 0:26:36.520 who can claim that sort of milestone, and she's the 0:26:36.600 --> 0:26:41.240 only female to do so. She has a really distinctive style. 0:26:41.840 --> 0:26:44.840 It's very casual and very straight to the point. But 0:26:45.080 --> 0:26:47.720 you know, the justices do really seem to enjoy her 0:26:47.920 --> 0:26:50.800 oral advocacy, and she has sparred with some of the 0:26:50.920 --> 0:26:53.800 justices in the past, but you know, often they'll laugh 0:26:53.880 --> 0:26:56.240 at some of her comments that she makes. You know, 0:26:56.280 --> 0:26:58.240 I think people tend to think that she gets away 0:26:58.280 --> 0:27:02.600 with things that you know, others, even experienced advocates, cannot, 0:27:03.000 --> 0:27:05.280 And you know that's really shown through her record of 0:27:05.359 --> 0:27:08.959 the court. She has an unusually high success rate at 0:27:08.960 --> 0:27:10.040 the U. S. Supreme Court. 0:27:10.640 --> 0:27:13.679 So what happened during these oral arguments that led to 0:27:13.760 --> 0:27:16.400 this confrontation with Gorsu. 0:27:17.520 --> 0:27:20.240 Well, you know, this is a casepot by parents of 0:27:20.280 --> 0:27:24.280 a disabled student who's suing a Minnesota school district. And 0:27:24.600 --> 0:27:27.360 as they sort of understood the case as it came 0:27:27.400 --> 0:27:29.280 to the Supreme Court, you know, they thought it was 0:27:29.320 --> 0:27:34.560 a very narrow case, and during oral arguments, the parents' advocate, 0:27:34.600 --> 0:27:37.960 who himself is a seasoned Supreme Court veteran, you know, 0:27:38.119 --> 0:27:41.720 said that this school district had sort of pulled the 0:27:41.840 --> 0:27:44.879 rug out from under the justices and had changed course 0:27:45.520 --> 0:27:48.760 in the Supreme Court and advocated for a much broader, 0:27:49.160 --> 0:27:53.080 much drastic sort of request than what they thought that 0:27:53.080 --> 0:27:56.000 the case was about. And then when Lisa Platt got 0:27:56.040 --> 0:27:58.679 up to argue for the school district, she said that 0:27:58.800 --> 0:28:02.520 wasn't a correct character of their stance, and she actually 0:28:02.640 --> 0:28:07.520 accused the parents' attorney as well as the federal government's attorneys, 0:28:07.560 --> 0:28:09.480 who was on the side of the parents in this case. 0:28:09.840 --> 0:28:13.760 She accused them of lying. And it's really that accusation 0:28:14.000 --> 0:28:16.760 that really got under the skin of several of the justices. 0:28:17.440 --> 0:28:22.240