S6, Ep. 10: March Madness: Department of Education, school vouchers, and a Supreme Court preview

Actions and rumors of actions in Washington, D.C., are continuing to dominate the news cycle and keep people on edge. On this episode of Respecting Religion, Amanda and Holly discuss the devastation of dismantling the Department of Education and the problematic push for a nationwide school voucher program. They also look at the latest in the battle between faith communities and the Trump administration to protect sensitive locations from immigration raids, and they preview the three religious liberty cases on the Supreme Court’s docket this term.

SHOW NOTES
Segment 1 (starting at 00:38): Federal school vouchers, shutting down the Department of Education, and a potential new travel ban

Holly mentioned this story on the school voucher proposals by Laura Meckler for The Washington Post: GOP voucher plan would divert billions in taxes to private schools

If you want to contact your representatives in Washington about the trouble with school voucher programs, click here to use our convenient form to email them directly.

Amanda mentioned this story from Inside Higher Education about potential plans to shut down the Department of Education: Draft Order Offers Hints to How Trump Wants to Shut Down the Department

After we recorded this episode, the administration began gutting the Department of Education through layoffs instead of an executive order. Amanda released a statement calling it a “reckless move,” which you can read on our website. 

We also sent out an alert about the issue to the members of BJC’s email list, and it included a form they can use to contact their members of Congress about the problems with shutting down the Department of Education. Click here to use our convenient form to email your members directly about this issue.

Sign up for BJC’s email updates for immediate alerts when there are ways to take action: BJConline.org/subscribe

The New York Times previews the possible new travel ban in this article: Trump Administration Prepares to Revive and Expand Travel Bans. BJC consistently called out the dangers of the travel ban during the first Trump administration, including the very first one on Jan. 27, 2017. 

 

Segment 2 (starting at 16:26): Sensitive locations and calling on Congress to do their job 

There are two current lawsuits challenging the administration’s guidance on sensitive locations. In the lawsuit from Quaker congregations, a Sikh temple and the Cooperative Baptist Fellowship, the judge issued an injunction on February 24 that blocks immigration officials from entering their houses of worship to conduct immigration enforcement operations. Read about that order on Democracy Forward’s website.

Holly mentioned a new bill in Congress called Protecting Sensitive Locations Act.

You are invited to join Faithful Witness Wednesdays throughout the month of March, as people of faith gather on the Capitol grounds to call on Congress to take action. Sign up for the March 19 or the March 26 events, which are organized by Sojourners and the Washington Interfaith Staff Community. 

Amanda spoke at the March 5 Faithful Witness Wednesday – you can watch a recording on the SojoAction YouTube channel and see photos on BJC’s Facebook page.

Segment 3 (starting 25:35): Three religious liberty cases headed to SCOTUS 

Amanda and Holly mentioned the emergency order from the Supreme Court to re-start payments for aid work that had been completed. Read more in this story by Justin Jouvenal, Annie Gowen and Ann E. Marimow for The Washington Post: Supreme Court says judge can force Trump administration to pay foreign aid

Amanda and Holly mentioned three religious liberty cases that the Supreme Court will hear this term: 

• Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission (March 31)
• The consolidated cases of Oklahoma Virtual Charter School Board v. Drummond and St. Isidore of Seville Catholic Virtual School v. Drummond (April 30)
• Mahmoud v. Taylor (April 22)

Respecting Religion is made possible by BJC’s generous donors. Your gift to BJC is tax-deductible, and you can support these conversations with a gift to BJC.

Transcript: Season 6, Episode 10: March Madness: Department of Education, school vouchers, and a Supreme Court preview (some parts of this transcript have been edited for clarity)  

 

AMANDA: But the federal Department of Education serves a number of very important purposes.
HOLLY: And we’re going to find out, does this Court recognize the No Establishment Clause.

 

Segment 1: Federal school vouchers, shutting down the Department of Education, and a potential new travel ban (starting at 00:38)

AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.

HOLLY: And I’m general counsel Holly Hollman. It’s been a few weeks since our previous episode, so we’ve got a lot of catching up to do today, Amanda. We’re going to try to give our listeners some updates on our work here at BJC, as well as some of the troubling proposals we’re seeing in Congress. We also want to discuss what we’re watching at the Supreme Court, since there are three religious liberty cases on the docket this term.

AMANDA: That’s right, Holly. I’ve missed being in the studio recording with you, but we’ve not been on vacation. We have been out in the world, doing the work we’re about to tell you all about.

HOLLY: And there’s also been a little flu A going around D.C. and other parts of the country as well.

AMANDA: We have a lot to cover, and things are changing quickly, so let’s mention when we’re recording, because between when we have this conversation and when you listen to it, I have a feeling there are going to be some updates and changes to what we talk about. So we are recording on the afternoon of Tuesday, March 11, and just keep that in mind as we give you what’s latest as far as we know right now.

HOLLY: So the March Madness we’re talking about is not the fun one, but instead some problematic proposals, beginning with one that is really alarming for BJC. We have long supported public schools as the primary institutions for forming good citizens. It’s really a backbone to our democracy, as well as the place where people first learn about how religious freedom works.

Our public schools are open to all students without regard to religion, and we know that people often learn about how Free Exercise and No Establishment work when they think about the public schools. So we are pretty concerned about a new development in the area of school funding.

AMANDA: That’s right. So Congress is considering creating a national federal school voucher program. This is an incredibly expensive program. It would funnel an estimated $10 billion per year in taxpayer money to private schools, including private religious schools, and to families who homeschool their children. And this is being proposed in a bill that has been filed in the house as H.R. 833 and in the Senate as Senate 292.

HOLLY: Yes. And this proposal also is being threatened to become part of the budget reconciliation process. We know that this is an important priority for some Republicans in Congress as well as for the administration. President Trump has made very clear that he supports vouchers. And so we’re very concerned about this proposal.

On the good side, I think for the first time it is getting the attention of some people who might not understand why voucher programs are so controversial and such a threat to public education. The Washington Post writer Laura Meckler wrote a very thorough piece, explaining the remarkable nature of this particular proposal.

She notes that the way it is set up as a tax credit program is what makes it so expensive and what really would incentivize people to be involved in this, whether they like vouchers or not. It’s a huge tax policy change that would really dwarf, as she notes, any other kinds of incentives for charitable giving.

One of the things that’s really stood out to me as I thought about the scope of this and how large it is, what a transfer of funds it would be, is how unrelated it is to educational needs. It is not means-tested, as sometimes we see voucher programs proposed, to really kind of offset dire economic situations in particular communities or states. Instead, this is a policy that would give vouchers to all but the super-wealthy.

There’s nothing that ties the receipt of a voucher to the need, nor does it tie it to someone that needs to get out of some kind of failing public school. Instead, it would offer it to people who are already in private schools.

AMANDA: Yeah. So in that way, the policy really doesn’t seem to be meeting any asserted need for it as we’ve seen in some more targeted programs. For instance, even programs within D.C. or in smaller city programs — again, not programs that we at BJC have supported or endorsed but also programs that seem a little bit more narrowly tailored to the needs of the communities.

This looks more like the legislative proposal that would respond to what President Trump purported to do in one of those early executive orders, again purporting to try to divert money from public schools into private school voucher programs but something that he lacked the authority to do in his position as head of the executive branch. He needs Congress in order to pass this, in order to really fulfill that idea.

But there’s one problem, among many, I think, for President Trump and those who like this policy proposal, and that’s that private school vouchers are actually very unpopular — in fact, so unpopular that we’ve heard that this bill is unlikely to have the support it needs to pass on its own, that this is really a cross-partisan issue. People from both sides participate and support public education.

And so the bigger concern is that, as you noted, Holly, this might get added to some must-pass legislation, like a budget reconciliation bill, although, again, you know, news travels fast right now. As we record, it’s looking more likely that the House will pass what’s called a continuing resolution and just basically keep the government open without passing a budget, possibly through the end of this fiscal year.

And if that happens, then there won’t be a need for a budget reconciliation bill, and that vehicle possibly won’t be the place that this bad policy idea gets hitched to. So, to be continued on exactly what happens here.

HOLLY: Sometimes even if not an immediate threat, these threats can kind of gain steam over time if people don’t raise awareness about them, they don’t call it out, they don’t contact their members of Congress to let them know what they think about this. So we have initiated an action alert where you can contact your members of Congress and talk about what’s wrong with this particular bill, ECCA.

We like to say [pronounce it as] “icka” like it’s really icky, but it’s E-C-C-A, because they try to use the idea of Educational Choice for Children, instead of calling it what it is, which is a huge transfer of tax funds to private schools in a way that really is a threat to public schools that, as you note, Amanda, are not only really popular. They are really necessary, since 90 percent of American children go to public schools.

So we’ll put a link in our show notes to that article that describes the legislation, as well as a link to take action to make sure that you engage your lawmakers about what’s wrong with this proposal.

AMANDA: Yeah. And speaking of other bad ideas in the public education space, when I was in Washington last week, I was with friends, and they got an alert late on Wednesday night that said, oh, what, Trump’s going to close the Department of Education? So there was this leak that happened of a possible executive order that did not end up coming out last week.

So Holly and I are talking on Tuesday afternoon. A couple of notes about what we know about this so far, and I do want to link to a piece from an online outlet called Inside Higher Education that I think has a really good breakdown of what we know and what we don’t know at this point, along with quotes from a number of experts in the field.

You know, I think part of this is part of this ongoing strategy of flooding the zone, of continued chaos and confusion about what exactly is happening. And even the fact of, This is happening; no, it’s not happening yet; it might happen — just this ongoing threat is really keeping not just all of Washington but all of the country, I think, a little bit on our heels and just kind of bracing for what’s coming next.

But also, like the voucher executive order we talked about earlier, it continues to really assert more authority than the executive actually has. There is no power of the executive to actually shut down the Department of Education. That was established by an act of Congress, and it would take acts of Congress in order to close it down. And so I think it is important, when we talk about these efforts, that we not, even in the way we talk about them, give more authority to the president, to the executive branch than he constitutionally has.

HOLLY: Well, we’ve heard President Trump attack the Department of Education before. Even as he was considering who he would put in charge of that department, there were rumors that he wanted to do away with the Department of Education.

I think one thing about these rumors of shutting it down — and we’ve seen the stories that explain what the Department of Education does, both on the policy side and on the student loan side. And I think there are pretty big implications.

AMANDA: That’s right. And just as a reminder, most of education policy continues to be set at the state level. That’s where most funding for schools comes from, and curricular decisions are made on the state and even on the school district level, as we’re encountering in different places around the country in work that BJC is doing in partnership with a number of groups.

But the federal Department of Education serves a number of very important purposes, and a lot of those are providing more equal and equitable educational opportunities for all Americans and particularly providing extra funding for children who are in what are called Title I schools.

These are schools that are in low-income communities and have a high proportion of their students who are coming from families who are living at or near the poverty line and providing extra resources for them to have things like free and reduced school lunches, making sure that all children have the nutrition that they need in order to learn and flourish in schools.

Also providing important funding and guidelines for making sure that children who have disabilities of all kinds are given an equal opportunity to learn and flourish in their schools.

And so these are the communities who would be most hurt if some of these actions actually came to fruition. As well as, you know, the Department of Education has a strong Office of Civil Rights and making sure that things like religious freedom are protected in public schools, as well as other civil rights and civil liberties, and that would all be harmed without a Department of Education.

Stay tuned and sign up for BJC emails so that you can get updates when there are actions that you can take to voice your concerns to Congress, who again would have the ultimate authority in actually enacting plans to limit, reduce, or eventually possibly close the Department of Education. We will have the latest news and opportunities for action in our show notes.

HOLLY: We’ve already experienced that dynamic before, where you hear about something coming and it’s just kind of being leaked, and then we deal with it when it comes out. Another one is that we’ve learned that a new travel ban is in the works.

Everyone will remember the very beginning of the first Trump administration and how the Muslim travel ban caused such chaos. I have very clear memories, seeing coverage of the local airports, people coming in to D.C. or trying to get out of D.C., and the huge crowds and delays and, you know, extreme stress that that earlier policy caused. And I can’t imagine that we want to return to that kind of situation, but that’s what we may be facing.

Again, this is a new story that’s just breaking, but we’ll put an article in the show notes that points to some of the issues that we’re concerned about that this may address.

AMANDA: Yeah. And it really does seem to be — it does hearken back to what happened in the first administration. It started with an order to several agencies in the very first hours of the Trump administration to actually review security and vetting from certain countries. And those reports are due back to the president on March 21, and so the thought is that that would then form the basis for actually issuing some kind of travel ban.

And so, again, we’ll be watching very closely to see what the text and the context is for any kind of order. But some of the questions, I think, that are important to look at is, you know: Is religion or the religious majority stature of a certain country being used as a proxy for security? If so, that violates constitutional norms, because religion should not be used as a point of disfavor or adverse action from the United States government.

Such a policy, in addition to violating constitutional norms of religious freedom for all, also puts the safety and security of Americans at risk, including those who are Muslim, as the prior ban did. The prior ban also singled out a number of African countries in ways that were also akin to racial discrimination, and so we’re concerned about that as well.

And we have to also note, I think, that all of this is happening in the season of Ramadan, a season that is sacred to Muslims around the world, that we could expect that Muslim families would be wanting to gather together in different ways, and if this travel ban goes into effect, that that could have an impact on their ability to celebrate their religion in ways that they feel called to do so.

The countries that I think people are particularly concerned about that could be added are that it could bar Afghans and Pakistanis as well, and so when we think about refugees coming from those areas and other kinds of travel that might be impacted, we need to think about that as well.

 

 

Segment 2: Sensitive locations and calling on Congress to do their job (starting at 16:26)

HOLLY: And speaking of migration and the complex reasons that people need to move around in this world, we know that the Trump administration has been really focused on enhanced enforcement of immigration policy, and specifically it’s talked about making a prime strategy mass deportations.

With that focus from a policy perspective, the administration did something that really got our attention, specifically as a matter of religious freedom, beyond all the other concerns we have just about the disruptive nature of those planned enforcements, and that was this change in policy on what’s known as the “sensitive locations” policy.

Basically it’s been the policy for many decades that immigration enforcement would not happen at certain protected locations, certain sensitive locations, because of the disruptive nature, because it would cause people not to take advantage of necessary services, and that’s education, medical, religious services.

But the Trump administration was quick to rescind that policy, and instead, the new memo said that going forward, law enforcement officers should instead use discretion along with a healthy dose of common sense. It specifically said, quote, “It is not necessary, however, for the head of the agency to create bright line rules regarding where our immigration laws are permitted to be enforced,” close quote, which is a little misleading, because these bright line rules, of course, were subject to being overcome by exigent circumstances.

So it’s not like there’s anyplace that is totally off limits for law enforcement, but instead you had a policy that quite sensibly, reasonably said, we’re not going to come in and have investigations and arrests and other enforcement action in areas where it’s not necessary and would cause undue hardship and disruption and really could do unnecessary harm to communities.

AMANDA: Yeah, that’s right. And we referenced this issue briefly in prior episodes, but there have been actions in some of the lawsuits that have been filed to challenge this rescission of a very old policy and this idea that a healthy dose of common sense is not enough to protect religious freedom rights under the First Amendment or under the Religious Freedom Restoration Act.

So there are two pending lawsuits, one of them — both in federal court, one in the District of Maryland, one in the D.C. District Courts. And there has been significant action in the case that was filed in Maryland. The plaintiffs in that case are a number of Quaker meetings, a Sikh temple, and the Cooperative Baptist Fellowship. And the Cooperative Baptist Fellowship or CBF is one of more than a dozen member bodies of BJC, and so we are very familiar with CBF and CBF churches.

In that case from Maryland, the judge there issued an order on February 24 that granted in part and denied in part a motion for a temporary restraining order and preliminary injunction. And we’ll put a link to Democracy Forward’s website. Democracy Forward is the nonprofit legal organization that is providing legal counsel in this case. They have a link actually to the order itself which you can read, as I did.

It’s a 59-page order, so it’s a very long analysis from the judge, particularly at this preliminary stage, because at this point, he’s really going on just the paper, as we would say, on just the initial filings from the plaintiffs. There hasn’t been a great deal of evidence gathered at this point.

But in this order, the judge is finding a likelihood of success on the merits of both the First Amendment and the Religious Freedom Restoration Act — or RFRA — claims, and that has given this judge, at least, enough information in order to temporarily pause the enforcement of the new policy in a limited way.

And I will say that the judge did not give the plaintiffs everything they were asking for. The judge basically restored to the status quo, to what was before January 20, so that the old policy is back in effect, and also applied it just to the houses of worship or meeting areas that are specific to the named plaintiffs in this case.

And so we saw, Holly, that especially, you know, the churches that we’re familiar with, churches that are CBF churches around the country, they started putting up signs outside their churches, notifying the membership that there was a temporary restraining order in place and that meant that, again, the old policy was in place, and that ICE officials and other government officials had to meet a higher bar before they could enter the house of worship to enforce some kind of immigration action in that house of worship.

HOLLY: Yeah. A really positive — again, an early development, but a very positive development in that litigation. And this change in policy has been challenged not only in these two lawsuits, but there are members of Congress thinking about how best to address this and whether or not an act of Congress could be passed to, again, just prevent immigration enforcement from unnecessarily being conducted in places that are particularly sensitive, such as hospitals and schools and churches.

BJC certainly appreciates those efforts in Congress to consider whether that could provide the solution. There’s an act called the Protecting Sensitive Locations Act that’s been proposed that would codify the earlier policy of protecting against enforcement at sensitive locations.

So we’re following that legislation very carefully and hoping that Congress would act in a way that could provide not only a policy that is fair and that takes into account all the things that you’d want law enforcement to take in account as they do their job, but also provides a more stable and longer-term solution to the problem.

AMANDA: And I think having legislation that calls on Congress to act is really important in this moment, and that was also the impetus for an event that I joined last week, something called Faithful Witness Wednesdays. We kicked off on Ash Wednesday, on March 5. These are events that are organized by Sojourners and the Washington Interreligious Staff Community and that BJC is co-sponsoring.

And our call at this very first event was to ask Congress to show some courage in this moment and to assert their constitutional duties under Article I of the U.S. Constitution, that they are a full, co-equal branch of government with the executive and with the judiciary. We’ve seen a lot of action out of the judiciary. We have seen far less action from Congress so far.

And so we wanted to encourage Congress with our interfaith religious voices to show up and do their constitutional duty in these important moments.

HOLLY: Yeah. It was great, Amanda, that you could be part of that event, and as I understand, there’ll be sort of a rotating selection of faith leaders that will take part in this on every Wednesday on the Capitol grounds. And it’s a great opportunity, I think, for people to come out and show Congress that they are watching. They expect Congress to do their job, to represent the people well, and, you know, to stay engaged.

And so I really appreciate that you were there on that rainy Wednesday. We can link to some pictures and video of that event in the show notes.

AMANDA: And, yeah. I do want to encourage: If you’re listening to the podcast and you are in the Washington area or will be at an upcoming Wednesday, come out and support these important events. They’re going to be Wednesdays in March — and possibly beyond — at noon Eastern on the Capitol grounds. If you’re not in the Washington area, you can watch on a livestream that’s available from Sojourners. So I encourage everyone to participate in that way as well.

 

 

Segment 3: Three religious liberty cases headed to SCOTUS (starting at 25:35)

HOLLY: Well, Amanda, let’s talk about what’s happening in the Supreme Court now. We have seen some challenges that have already made their way to the Court, these actions that the Trump administration took early in the administration, particularly these that have such an impact on funding and personnel.

AMANDA: Yeah. And I think there’s been a lot of reporting, thankfully, on what’s happening with the government agency USAID that provides a lot of foreign assistance in places around the world, and there was an effort, not just to cut off contracts going forward, but actually not to pay for services that had already been rendered in December.

And so one of these cases did go to the Supreme Court, and the Supreme Court ruled, via an emergency order, that a judge can force the Trump administration to pay for these contracts. It was a five-to-four decision, so it included the three liberal justices, plus Chief Justice Roberts and Justice Amy Coney Barrett, and it clears the way for the State Department and the U.S. Agency for International Development to restart nearly $2 billion in payments for work that, again, had already been done. We will link in show notes to an article from The Washington Post reporting on this.

And we wanted to just briefly mention that decision, Holly, because, in our previous episodes, we had talked about how the attacks from Elon Musk and Retired General Michael Flynn had been focused on some of these providers, including faith-based service providers. Because Justice Barrett joined with the majority in this case and, you know, in some ways then was one of the deciding votes in this majority, we saw MAGA world really turn against her and say some really awful things towards her.

I did see that President Trump defended her, but he also claimed not to know about the attacks on her, so I think all of this is just kind of a precursor to what we will continue to see, because a lot of these lawsuits that are now at various stages in litigation, many of them will end up at the Supreme Court, and to see how those nine people determine these will have a huge impact on our constitutional order going forward.

HOLLY: And with that, I am tempted to take a moment of silence, just in honor of the rule of law and the need for judges to do the right thing, for people to litigate their rights, for law firms to do the work that they have to do on behalf of private clients, as well as much of what they do from pro bono aspects, which is a big part of a lot of law firm action, too, is to give back to the community by using legal resources in positive ways for the public good.

Apart from the extraordinary of these legal times at the U.S. Supreme Court, we are also back to the norm, where this Court really is interested in religious freedom law, so there are three cases that the Court’s going to hear this term that deal with religion and the law. And so we want to mention them very briefly, and then we’ll come back in later episodes to talk about them in more depth as the Court entertains oral arguments.

The first case that the Court will hear coming up soon is a case called Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission. And this is a case where the issue is whether the state — the state of Wisconsin — violates the First Amendment’s religion clauses by denying a religious organization an otherwise available tax exemption because the organization does not meet the state’s criteria for religious behavior.

Now, that question presented, of course, you know, sounds pretty important, because in general, we don’t want the state to be quick to judge what is religious behavior, particularly as we’ve seen the rise in Christian nationalism and attempts to define religion very narrowly in ways that can harm faith freedom for all.

At the same time, we know that states have to draw reasonable lines and regulation, and tax regulation is an area where that is particularly the case. So this case does involve, as the title says, Catholic Charities, which has been to this Court before, and, I think, has some fans on this Court, so I think we’ll put — I will note that in saying that I think they will get a fair hearing from this Court.

But also it does involve, as I mentioned, tax law, and that is an area of particular importance to the government to be able to draw lines and have some rules, so that not every exemption has to be so broad that it can threaten other government interests such as the tax laws. The case is set for oral argument March 31, and we will come back to that case to report on that in a later episode.

AMANDA: So we are also watching a set of consolidated cases, Holly, that are coming out of the state of Oklahoma. Those cases are called Oklahoma Virtual Charter School Board v. Drummond, along with St. Isidore of Seville Catholic Virtual School v. Drummond. And the questions presented in these cases are these — and, again, these are often phrased in terms that are favorable to those who are seeking review, which are in these cases the schools themselves who are adverse to the state of Oklahoma.

So the issues are (1) whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students; and (2) whether a state violates the First Amendment’s Free Exercise Clause by excluding privately run religious schools from the state’s charter school program solely because the schools are religious, or instead, a state can justify such an exclusion by invoking antiestablishment interests that go further than the First Amendment’s Establishment Clause requires.

So very slanted questions presented, I think, but also, I think, really directed at where the Court last ruled in the case Carson v. Makin, where the Court essentially said that if a state opens up funding for private schools, they have to include religious schools. Now, these are not private schools. These are charter schools, which the state of Oklahoma explicitly says are public schools.

And so, from our perspective, Holly, this is really asking the question: Are we going to have religious public schools in this country going forward? And that is a very concerning question, I think, for this Supreme Court to be taking up at this point.

HOLLY: Yeah. For us, this is something that we are watching very closely with a lot of concern, and the fact that the U.S. Supreme Court decided to review this in and of itself is concerning after the Oklahoma Supreme Court ruled against it. Now, this is a state matter, as we mentioned earlier. Typically schools are matters of state law, and the lower court decision was based on a review of the Oklahoma charter statute as well as the Oklahoma state constitution, and the Court, you know, came to the conclusion that this proposal, you know, violated both.

But now we have these federal constitutional issues that are before the Court. As the school itself says, it has some kind of Free Exercise right to participate in the charter school program, despite Oklahoma law, and we’re going to find out, does this Court recognize the No Establishment Clause, and what are some of the boundaries that it provides.

We’ve talked a lot about the Court chipping away at constitutional values, particularly No Establishment values. But here I think we have a threat of a totally different magnitude, to think about a publicly funded religious school. There are no factual questions that undermine the idea that this is a religious school. This is a Catholic chartered school that purports to be able to act like private Catholic schools.

So those consolidated cases will be presented before the Court. Oral arguments are now set for April 30. BJC will be involved in this case, filing an amicus brief on the side of the state of Oklahoma and defending No Establishment principles that we think are important to maintain religious freedom for all, that if separation of church and state means anything it has to mean that the state does not explicitly and directly fund religious education in this way.

AMANDA: And the last case, Holly that we are paying attention to very closely — and we’re paying attention to everything the Court does, but these are ones that are, I think, most relevant to work that we do day in/day out — is a case out of the state of Maryland, Montgomery County, which is just outside of the District of Columbia. It’s called Mahmoud v. Taylor.

And the issue in this case is whether the public schools burden the parents’ religious exercise when the schools compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.

So I think this case actually is a pretty thorny one, particularly in the moment that it’s coming up in, because we have a lot of rhetoric — sometimes very harmful rhetoric — towards LGBTQ and particularly transgender people right now. And so to have the Supreme Court take this case that deals with, you know, what are usually complicated but not impossible questions of weighing curricular decisions and parents’ rights and abilities to opt out —

HOLLY: And discretion, and discretion by schools to figure out what works for their community and how to accommodate people who raise objections without undercutting the curricular responsibilities of the school.

AMANDA: That’s right. And these are disputes that we might usually see play out in local communities in ways that might actually bring the community closer together. Instead, in this case we’re going to see nine people on the Supreme Court rule into this and have national attention on this issue, and how that actually plays out in their decision and in the national discourse, I think, remains to be seen.

The case is coming, again, out of the state of Maryland in the federal courts through the Fourth Circuit Court of Appeals, and a three-judge panel in the Fourth Circuit, by a two-to-one vote, emphasized that the record in the case was, quote, “threadbare” and lacks the sufficient evidence that the parents suffered a, quote, “cognizable burden on their religious freedom.”

The court there was really reviewing, of course, the record in front of it, but we’ll see what this Supreme Court does when they look at the case anew and determine whether there was a Free Exercise right here that was violated by the schools and their insistence on curriculum without an opportunity to opt out.

HOLLY: I think it will get a lot of attention, because it just touches on things that are really important to people: their public schools, the formation of young children, sexuality, to what extent a school must versus may accommodate particular needs, and particularly whether or not those needs rise to a constitutional level versus just a matter of education policy.

In some ways, I think this case is very unfortunate in that it appeared that there were some well-meaning policy decisions that just didn’t turn out right or were not pursued in the right way, and that then, you know, there’s a lot of conflict in the community about how to resolve that. But a threadbare record or difficult facts to sort through have not stopped this Court from weighing in to highly charged matters, so it’s not that surprising that the Court took this.

So we’ll watch this case carefully and consider the briefing on both sides and follow oral arguments, which will be held on April 22.

Well, with that, Amanda, it brings us to the close of this episode of Respecting Religion. Thanks for joining us. We’ll have the latest news and opportunities for action in our show notes.

AMANDA: Respecting Religion is produced and edited by Cherilyn Guy. Learn more about our work at BJC defending faith freedom for all by visiting our website at BJConline.org.

HOLLY: We’d love to hear from you. You can send both of us an email by writing to [email protected].

AMANDA: We are also on social media @BJContheHill, and you can follow me on X and on Bluesky and Threads @AmandaTylerBJC.

HOLLY: And if you enjoyed this show, share it with others. Take a moment to leave us a review or a five star rating to help more people find it.

AMANDA: We also want to thank you for supporting this podcast. You can donate to these conversations by visiting the link in our show notes.

HOLLY: Join us next time for new conversation Respecting Religion.