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SCOTUS Clash Over Religious Charter Schools · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: It's a case that could lift longstanding constitutional limits on
0:13
Speaker 2: government support for religion, and the sharp ideological divide on
0:18
Speaker 2: the Court was apparent in the oral arguments over whether
0:21
Speaker 2: to allow the country's first publicly funded religious charter school
0:26
Speaker 2: in Oklahoma. Four of the conservative justices seemed to be
0:30
Speaker 2: firmly on the side of the Catholic charter school, suggesting
0:34
Speaker 2: that the state is unconstitutionally disfavoring religion by requiring public
0:40
Speaker 2: charter schools to be secular. Justice Brett Kavanaugh called it
0:44
Speaker 2: rank discrimination against religion.
0:47
Speaker 3: And then you come in and you say, oh, we're
0:50
Speaker 3: a religious school. It's like, oh, no, can't do that.
0:53
Speaker 3: That's too much, that's scary. We're not going to do that.
0:58
Speaker 3: And our cases have made very and I think those
1:01
Speaker 3: are some of the most important cases we've had of
1:03
Speaker 3: saying you can't treat religious people and religious institutions and
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Speaker 3: religious speech as second class in the United States.
1:12
Speaker 2: But the three liberal justices emphasized that taxpayer funded religious
1:17
Speaker 2: schools would entangle church and state in violation of the
1:21
Speaker 2: establishment clause of the First Amendment. Here's Justice Sonya Sotomayor.
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Speaker 4: Because the essence of the establishment clause was we're not
1:30
Speaker 4: going to pay religious leaders to teach their religion. That
1:38
Speaker 4: is and has always been the essence. And here we're
1:42
Speaker 4: paying Catholic leaders Catholic teachers. You can only be a
1:47
Speaker 4: teacher in this school if you're willing to accept the
1:51
Speaker 4: teachings of the Catholic Church.
1:53
Speaker 2: My guest is First Amendment law expert Caroline Malik KORbin,
1:57
Speaker 2: a professor at the University of Miami Law School. Caroline,
2:01
Speaker 2: what's at stake in this case?
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Speaker 5: So the ultimate question is whether the Supreme Court will
2:07
Speaker 5: require the state of Oklahoma to directly fund a religious
2:13
Speaker 5: charter school. That's the big picture. Basically, Oklahoma has a
2:19
Speaker 5: charter school program, as do most states. As a matter
2:22
Speaker 5: of fact, it's supposed to be another alternative to regular
2:27
Speaker 5: public schools, and the school bar charged with approving charter
2:32
Speaker 5: schools approved a Catholic charter school. A Catholic charter school
2:39
Speaker 5: would violate the Oklahoma Constitution, and so the Attorney General
2:45
Speaker 5: challenged that on the grounds it violated two separate provisions
2:49
Speaker 5: of the Oklahoma Constitution as well as the US Constitution.
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Speaker 5: Because the Oklahoma Constitution makes it very clear that taxpayer
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Speaker 5: money cannot be used who is, to fund religious proselytization
3:03
Speaker 5: and indoctrination. And there is a separate provision of the
3:06
Speaker 5: Oklahoma Constitution that says public education must be non sectarian.
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Speaker 5: In other words, public education must be secular. That's the
3:19
Speaker 5: Oklahoma Constitution. There is also, of course, the US Constitution's
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Speaker 5: Establishment Clause, which has long been understood to ban direct
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Speaker 5: fundings using taxpayer money to fund religious education, religious proselytization,
3:37
Speaker 5: religious doctrination. And that went all the way up to
3:41
Speaker 5: the Oklahoma court until the Oklahoma Supreme Court said, you
3:47
Speaker 5: know what, it does violate the Oklahoma Constitution does violate
3:52
Speaker 5: US constitutions for Oklahoma to have a religious charter school.
3:57
Speaker 5: And then the charter school and the board that approved
4:02
Speaker 5: it appeal to the Supreme Court and they claim that
4:07
Speaker 5: Oklahoma's refusal the Holy fund that Catholic charter school violated
4:15
Speaker 5: the free exercise clause of the US Constitution. And that
4:18
Speaker 5: was what the case was before the Supreme.
4:20
Speaker 2: Court explain why. A key issue is whether the religious
4:24
Speaker 2: charter school is public or private.
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Speaker 5: So that's the million dollar question. There was a dispute
4:31
Speaker 5: on whether to characterize charter schools as public schools or
4:37
Speaker 5: private schools, and that category makes a huge difference under
4:42
Speaker 5: the doctrines, because under existing precedent, if charter schools are
4:48
Speaker 5: in fact public schools, then Oklahoma is absolutely free to
4:54
Speaker 5: insist that they remained secular. On the other hand, if
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Speaker 5: they are considered private school there is a trio of
5:03
Speaker 5: Supreme Court cases that have held that if the government
5:07
Speaker 5: makes taxpayer money available to private secular schools, it has
5:14
Speaker 5: to make that money equally available to private religious schools.
5:19
Speaker 5: So it really really matters whether the charter schools are
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Speaker 5: public schools, in which case Oklahoma can keep them secular,
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Speaker 5: or whether they're private schools, in which case the Supreme
5:33
Speaker 5: Court will hold that denying them equal access to government
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Speaker 5: money amounts to discrimination against religion and that would violate
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Speaker 5: the free exercise costs.
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Speaker 2: The liberal justices went through pains to try to point
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Speaker 2: out that the charter school is public, and then the
5:53
Speaker 2: conservatives went to pains to try to prove that it
5:56
Speaker 2: was private.
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Speaker 5: Which do you think exactly? I think that the weight
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Speaker 5: of evidence is that these schools are public. For various reasons.
6:05
Speaker 5: The state creates them, and the state can end them.
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Speaker 6: They really have all the.
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Speaker 5: Hallmarks of a public school. They are free, they're open
6:15
Speaker 5: to everyone, they're completely funded by the states, and the
6:19
Speaker 5: curriculum is subject to detailed oversight by the state. The
6:24
Speaker 5: teachers or subject to all the same benefits and regulations
6:28
Speaker 5: as public school teachers. Congress. When Congress enacted the law
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Speaker 5: that allowed for charter schools, they characterized them as public schools.
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Speaker 5: But especially important is that the Supreme Court of Oklahoma,
6:46
Speaker 5: in interpreting Oklahoma law, said this law creates public schools.
6:52
Speaker 5: The reason why that is so significant is that traditionally
6:56
Speaker 5: the state supreme court is the final arbiter of what
7:01
Speaker 5: a state law does. And if the state Supreme Court
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Speaker 5: of Oklahoma says this Oklahoma law creates public schools, that
7:10
Speaker 5: is supposed to be entitled to deference by the Supreme Court.
7:13
Speaker 5: That's sort of a basic principle of federalism. The state
7:17
Speaker 5: courts are the ones who interpret what state law means.
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Speaker 5: So there really is a lot of reasons to conclude
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Speaker 5: that these schools are ultimately public schools, not private.
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Speaker 2: How did the conservatives answer the liberal justices questions about
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Speaker 2: the establishment clause and how a taxpayer funded school would
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Speaker 2: entangle church and state.
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Speaker 5: So that's the first thing to note is in the
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Speaker 5: justice's mind, what's going on here is that the state
7:51
Speaker 5: has created a program and made a benefit available, and
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Speaker 5: consequently it has to be made available equally to religious
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Speaker 5: and secular schools, otherwise violates the free exercise clause. That
8:05
Speaker 5: it might be intention with the Establishment clause doesn't matter
8:10
Speaker 5: to these Supreme Court justices who always privilege the free
8:14
Speaker 5: exercise clause over the Establishment clause. So in their mind,
8:19
Speaker 5: if it is required to give the schools money by
8:22
Speaker 5: the free exercise clause, then by definition it can't violate
8:26
Speaker 5: the Establishment clause, and so they might simply not reach
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Speaker 5: the establishment clause problem that it is very firmly established
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Speaker 5: in establishment clause jurisprudence that the government cannot directly give
8:42
Speaker 5: money to religious organizations for the purpose of religious indoctrination
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Speaker 5: and religious education. The state cannot give directly money if
8:54
Speaker 5: the money ends up at a school indirectly, that is
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Speaker 5: okay under another case. But for the government to take
9:01
Speaker 5: money from its coffers and put it into the coffers
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Speaker 5: of a private religious school that then uses the money
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Speaker 5: for religious education and doctrination prostimization. Even under current Establishment
9:16
Speaker 5: Clause law, which is highly weakened even today, that's still unconstitutional.
9:23
Speaker 2: Did you see the three liberals on one side, four
9:27
Speaker 2: of the conservatives on the other. And then is Chief
9:30
Speaker 2: Justice John Roberts the pivotal vote.
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Speaker 5: He is because Justice Barrett recused herself because of her
9:38
Speaker 5: close connection with someone involved in the litigation, and so
9:43
Speaker 5: the Conservatives don't have a cushion as they normally do.
9:47
Speaker 5: They need Justice Roberts in this case in order to prevail,
9:51
Speaker 5: because if it is a four to four tie in
9:56
Speaker 5: that situation, the lower court decision stands, which is the
10:02
Speaker 5: Oklahoma Supreme Court's decision that it would violate the state
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Speaker 5: and federal constitutions to create a religious charter school wholly
10:12
Speaker 5: funded by the state.
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Speaker 2: And Roberts didn't tip his hand as to which way
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Speaker 2: he was leaning. But if the Conservatives do have the votes,
10:21
Speaker 2: what might the decision look like.
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Speaker 5: Well, there are two ways they can rule in favor
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Speaker 5: of the charter schools, and I think one is significantly
10:31
Speaker 5: more likely than the other. The first way is the
10:35
Speaker 5: one I've suggested already, is that they conclude that these
10:38
Speaker 5: are private schools and accordingly, under existing precedent, the state
10:44
Speaker 5: has to give them the same opportunities of state funding
10:48
Speaker 5: as they give private secular charter schools. And there they
10:52
Speaker 5: would insist that this is no change in the law whatsoever.
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Speaker 5: It's just a continuation of their previous rulings that hold
11:01
Speaker 5: that if the government makes a benefit available, it has
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Speaker 5: to make it equally available to private religious schools and
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Speaker 5: private secular schools. It could say that these are public schools,
11:15
Speaker 5: but still in terms of the charter school program, it
11:20
Speaker 5: has to offer the opportunity to create both secular charter
11:24
Speaker 5: schools and religious charter schools. But there's no reason for
11:29
Speaker 5: them to rule in that way if they can take
11:32
Speaker 5: the much simpler path of simply claiming, contrary to the
11:37
Speaker 5: evidence and Congress and the Oklahoma Supreme Court, that these
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Speaker 5: are private schools. And this is just another case of
11:46
Speaker 5: the state discriminating against religion by denying its funding that
11:50
Speaker 5: it makes available to their specular counterpart.
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Speaker 2: Coming up the court string of decisions allowing public funds
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Speaker 2: to be used by religious institutions. This is bloomberg. The
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Speaker 2: Supreme Court's conservative majority has repeatedly sided with religious interests
12:06
Speaker 2: in recent years. In three cases since twenty seventeen, the
12:10
Speaker 2: Court has allowed public funds to go to religious entities,
12:15
Speaker 2: and in a case over whether to allow the country's
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Speaker 2: first publicly funded religious charter school in Oklahoma, four of
12:21
Speaker 2: the conservative justices seemed to be firmly on the side
12:25
Speaker 2: of the Catholic charter school, suggesting that the state is
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Speaker 2: unconstitutionally disfavoring religion by requiring public charter schools to be secular.
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Speaker 2: Justice Brett Kavanaugh seemed to acknowledge that the Court has
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Speaker 2: been rewriting the interpretation of the Constitution's religion clauses when
12:44
Speaker 2: he told Oklahoma's attorney former Solicitor General Gregory Garr that
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Speaker 2: the Court now has a different constitutional understanding than it
12:53
Speaker 2: did since the beginning of the charter school program in
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Speaker 2: nineteen ninety four.
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Speaker 7: But this is going to have a dramatic fact on
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Speaker 7: charter schools across the country. And just think of the
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Speaker 7: federal charter school program on its own. I don't think
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Speaker 7: you can't just say, like, oh, well, just you know, Grant, well.
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Speaker 3: It's not good that the premise of that was that
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Speaker 3: at that point it was considered constitutional to discriminate against
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Speaker 3: religious entities and that you know, that's some of our
13:20
Speaker 3: case law has changed that and said no, it's not
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Speaker 3: constitutional discriminate against private and that's.
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Speaker 2: I've been talking to Professor Caroline malt Corbin of the
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Speaker 2: University of Miami Law School. Caroline. Later in that interchange,
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Speaker 2: Kavanaugh said, there was a different constitutional understanding, yes.
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Speaker 5: And this different constitutional understanding is a constitution without the
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Speaker 5: establishment clause. Because it's very important to realize that religious
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Speaker 5: organizations are treated differently under the Constitution. They get certain
13:54
Speaker 5: benefits under the free exercise clause. So for example, religious
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Speaker 5: schools or an titled to a ministerial exemption, which means
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Speaker 5: that their teachers can't bring discrimination claims. It means that
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Speaker 5: they often get extra tax breaks that others do not.
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Speaker 5: There are definitely benefits to being a religious school, but
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Speaker 5: it had long been any understanding that being religious brought
14:21
Speaker 5: not only special benefits but also certain restrictions. And one
14:27
Speaker 5: of those restrictions was a, for example, limit on the
14:32
Speaker 5: kind of funding you could get from the government.
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Speaker 2: And so there was.
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Speaker 5: Long this balance where in some ways religious schools got
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Speaker 5: certain benefits, but in some ways they had certain restrictions
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Speaker 5: from the benefits from the free exercise clause, the restrictions
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Speaker 5: imposed by the Establishment Clause. But what the Roberts Court
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Speaker 5: has done and reconfiguring the religious liberty clauses, it has
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Speaker 5: expanded the privileges of religious organizations while eliminating the prior limits.
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Speaker 5: And one way they've been doing that is with this
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Speaker 5: flate of hand. The slate of hand is what were
15:15
Speaker 5: previously understood as Establishment Clause limits on for example, government
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Speaker 5: funding now has become religious discrimination right. So again, one
15:26
Speaker 5: of the basic premises of the Establishment clause is that
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Speaker 5: the government does not fund religions. In various ways, the
15:35
Speaker 5: Supreme Court generally pretends to the Establishment clause does not
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Speaker 5: exist and insists that any time the government does not
15:44
Speaker 5: fund religion, it is discriminating against religion because it's funding
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Speaker 5: secular organizations. So basically, what they've done is they've taken
15:56
Speaker 5: this balanced approach towards religion, where sometimes it gets special
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Speaker 5: benefits and sometimes it's subject to special limits, and it's
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Speaker 5: eliminated the limits by re characterizing a constitutional requirement as
16:12
Speaker 5: just hostility to religion. So in their minds, the reason
16:17
Speaker 5: that Oklahoma doesn't want to fund a religious school a
16:22
Speaker 5: religious charter school is not because the Constitution limits it,
16:26
Speaker 5: which it does both the state and credal but because
16:29
Speaker 5: they're hostile religious. So that's the switch. Right, limits that
16:33
Speaker 5: were constitutionally required, limits that were understood to be required
16:38
Speaker 5: by the Constitution's Establishment Clause, don't exist. Instead, those limits
16:44
Speaker 5: only reflect hostility to religion, not an attempt to honor
16:50
Speaker 5: the Establishment Clause. And I'm just going to say one
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Speaker 5: more thing. This is my pitch for the establishment clause.
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Speaker 5: The Establishment Clause is a protecting religion. One of the
17:02
Speaker 5: main things the Establishment Clause does is by insisting on
17:07
Speaker 5: some degree of separation between church and state. It's protecting religion.
17:13
Speaker 5: It's protecting the favored religion, because anytime church and state
17:18
Speaker 5: gets entangled, it tends to degrade the religion, it tends
17:23
Speaker 5: to demean it in some way. And also, anytime the
17:29
Speaker 5: government gets involved with religion, it usually ends up favoring
17:33
Speaker 5: one religion to the detriment of others. And so insisting
17:39
Speaker 5: on the separation from church and state is so important
17:42
Speaker 5: to protecting minority religion. So I just want to emphasize
17:46
Speaker 5: that the Robberts Court is often characterized as being very
17:51
Speaker 5: pro religion, but that's not quite accurate if it's eliminating
17:56
Speaker 5: the establishment clause, because one of the things the establishment
18:00
Speaker 5: clause does is protect minority Rely, let's.
18:04
Speaker 2: Talk about this string of decisions since twenty seventeen, the
18:09
Speaker 2: Court said that Missouri violated the free exercise right of
18:13
Speaker 2: a Christian learning center when it denied grant funding to
18:18
Speaker 2: resurface its playground. Twenty twenty, Montana couldn't exclude religious schools
18:24
Speaker 2: from a program providing tax credits, and twenty twenty two,
18:28
Speaker 2: main can't limit a tuition assistance program. This seems like
18:32
Speaker 2: just the next step.
18:35
Speaker 5: This is the next step. That's the precedent that the
18:38
Speaker 5: Supreme Court will recite when they says this is a
18:43
Speaker 5: very straightforward case. If they do rule in favor of
18:48
Speaker 5: the Catholic charter school, they're going to say it's private,
18:52
Speaker 5: and as we have established in our three prior cases,
18:56
Speaker 5: the government cannot discriminate against private religion schools. See all
19:01
Speaker 5: those three cases you just mentioned.
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Speaker 2: What will a ruling like that mean for the forty
19:07
Speaker 2: five states that require charter schools to be both public
19:12
Speaker 2: and non sectarian, as well as the federal charter school program.
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Speaker 5: It's a bit of a disaster because every state just
19:24
Speaker 5: about has a charter program, and every state is assuming
19:29
Speaker 5: those charter programs amount of public schools, and so maybe
19:34
Speaker 5: not every state. I think they mentioned California quite So.
19:38
Speaker 5: What it means is it throws into question the constitutionality
19:44
Speaker 5: of every charter program because they all currently exclude religious
19:50
Speaker 5: schools on the assumption that these are public schools, and
19:55
Speaker 5: you can't use government money to fund a religious public school.
20:00
Speaker 5: So there's going to be a lot of legal uncertainty
20:03
Speaker 5: about the exact status of the charter schools in every
20:07
Speaker 5: state because each of them has slightly different rules, and
20:12
Speaker 5: so there will be litigation in fifty states about whether
20:16
Speaker 5: their particular charter school program creates private schools public schools.
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Speaker 5: It also throws into question some federal funding. I think
20:29
Speaker 5: one that the council recommended was the Special Federal Funding
20:35
Speaker 5: for Student with Disabilities, the Idea Act, the Individuals with
20:40
Speaker 5: Disability and Education Act, where charter schools get federal funding
20:46
Speaker 5: for their disabled students on the assumption that their public
20:50
Speaker 5: school I think that's what it was. I'm not one
20:54
Speaker 5: hundred percent on that. And then there are some other
20:57
Speaker 5: states that make it very clear that no money at
21:01
Speaker 5: all can go to any private school, and so they
21:05
Speaker 5: will have to rethink their charter school programs. So that's
21:09
Speaker 5: just the confusion that he emphasized. But in terms of
21:13
Speaker 5: church state, it means that once again money will be
21:18
Speaker 5: siphoned from the public school educational system into religious schools. Now,
21:27
Speaker 5: if the new rule is you have to be open
21:30
Speaker 5: to religious charter schools, it's going to be any religion
21:35
Speaker 5: can have a charter school. In theory, that's the theory, right,
21:39
Speaker 5: because otherwise you'd be discriminating against some religion over the others.
21:42
Speaker 5: But the reality is that the vast majority of these
21:47
Speaker 5: charter schools are going to be Christian schools, just as
21:51
Speaker 5: we saw in voucher programs that the vast majority of
21:57
Speaker 5: private schools getting vouchers are christ In private schools. And
22:02
Speaker 5: so this will be a significant channeling of your money
22:08
Speaker 5: and my money to religious schools who are going to
22:13
Speaker 5: be indoctrinating their students in beliefs that might be antithetical
22:18
Speaker 5: to our own religious beliefs.
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Speaker 2: States would be able to rewrite their charter rules, right,
22:23
Speaker 2: I don't eliminately.
22:25
Speaker 1: But.
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Speaker 5: I don't know how easy that will be. I don't
22:30
Speaker 5: know how long.
22:31
Speaker 4: That will take.
22:32
Speaker 5: We don't know what the impact will be in the
22:35
Speaker 5: next school year. So yes, it is entirely possible to
22:41
Speaker 5: completely revamp your charter school system to make it one
22:46
Speaker 5: hundred percent clear that these are public schools, although you know,
22:50
Speaker 5: they kind of already made it clear that they were
22:54
Speaker 5: public schools. I don't know if any state could be
22:57
Speaker 5: confident that the Supreme Court wouldn't come back and say, well, actually,
23:02
Speaker 5: you thought you were complying with the factors that we
23:05
Speaker 5: listed as defining what's a public school as opposed to
23:09
Speaker 5: a private school. But we're moving the goalposts again as.
23:13
Speaker 2: They've been moving it in these religion cases. Always a pleasure, Caroline,
23:17
Speaker 2: Thanks so much. That's Professor Caroline Malcorbin of the University
23:21
Speaker 2: of Miami Law School. Coming up next on The Bloomberg
23:24
Speaker 2: Law Show. Supreme Court oral arguments where civility is usually
23:29
Speaker 2: prized turned unusually hostile in a case involving a Minnesota
23:34
Speaker 2: school district and a disabled student. Supreme Court oral arguments
23:39
Speaker 2: take place in a rarefied atmosphere where civility is prized
23:44
Speaker 2: and your opponents are not adversaries, and your opponents are
23:48
Speaker 2: not called adversaries but rather friends. On the other side,
23:53
Speaker 2: but not so. During Monday's oral arguments involving a Minnesota
23:56
Speaker 2: school district and a disabled student, just Is Neil Gorsich
24:01
Speaker 2: took Lisa Blott, the attorney for the school district, to task.
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Speaker 3: You believe that.
24:06
Speaker 1: Mister Martinez and the Solicitor General are.
24:09
Speaker 3: Lying in or argument? Yes?
24:11
Speaker 4: Absolutely, it is not.
24:13
Speaker 1: True that we should be more careful with your works.
24:15
Speaker 4: Okay, well, they should be more careful in character mischaracterizing
24:18
Speaker 4: a position by an experienced advocate of the Supreme.
24:20
Speaker 2: Court, and Blott is certainly an experienced advocate. But Justice
24:25
Speaker 2: Gorsic apparently couldn't let it go and returned to it
24:29
Speaker 2: later in the argument not to set the law.
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Speaker 1: Miss, Yeah, I confess I'm still troubled by your suggestion
24:37
Speaker 1: that your friends on the other side have lied.
24:39
Speaker 5: Okay, let's help pull up.
24:40
Speaker 1: Yeah, I think we're going to have to here, and
24:44
Speaker 1: i'd ask you to reconsider that phrase argument if I
24:48
Speaker 1: might it was incorrect. If incorrect is fine. People make mistakes.
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Speaker 1: You can accuse people being incorrect lying, Miss Blatt, if
24:57
Speaker 1: I might finish sure, lying is another matter.
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Speaker 2: Blatt eventually withdrew her comment, joining me is Bloomberg Law
25:04
Speaker 2: Supreme Court reporter Kimberly Strawbridge Robinson who heard it all. Kimberly,
25:10
Speaker 2: the oral arguments are usually very civil. Even when questioning
25:14
Speaker 2: gets aggressive, you rarely even hear raised voices.
25:19
Speaker 6: That's right. I mean, there's a level of decorum that's
25:22
Speaker 6: expected within the Supreme Court even while debating you know,
25:26
Speaker 6: really hotly contested issues. And I think one of the
25:29
Speaker 6: things that really sort of demonstrates this is that the
25:32
Speaker 6: advocates are encouraged by the justices to refer to opposing
25:36
Speaker 6: counsel as my friend on the other side. You'll even
25:40
Speaker 6: hear attorneys correct themselves if they say, you know, my
25:43
Speaker 6: opposing council though quickly correct them of selves and say,
25:46
Speaker 6: you know, as my friend on the other side said. So,
25:49
Speaker 6: it really is a place that's defined by civility.
25:53
Speaker 2: So now tell us about the case at the Court
25:56
Speaker 2: on Monday involving a Minnesota school system. Generally what it
25:59
Speaker 2: was A yeah, I mean.
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Speaker 6: I think the broadest level of this case is about
26:05
Speaker 6: disability discrimination in public schools. It's a very technical case
26:09
Speaker 6: on the interaction of several federal statutes, but at a
26:13
Speaker 6: part it's about when schools can be held liable for
26:17
Speaker 6: disability discrimination.
26:19
Speaker 2: And Lisa Blatt is an experienced Supreme Court advocate. She's
26:25
Speaker 2: argued more than fifty cases before the court.
26:29
Speaker 6: Yeah, I mean, she's one of a handful of individuals
26:32
Speaker 6: who can claim that sort of milestone, and she's the
26:36
Speaker 6: only female to do so. She has a really distinctive style.
26:41
Speaker 6: It's very casual and very straight to the point. But
26:45
Speaker 6: you know, the justices do really seem to enjoy her
26:47
Speaker 6: oral advocacy, and she has sparred with some of the
26:50
Speaker 6: justices in the past, but you know, often they'll laugh
26:53
Speaker 6: at some of her comments that she makes. You know,
26:56
Speaker 6: I think people tend to think that she gets away
26:58
Speaker 6: with things that you know, others, even experienced advocates, cannot,
27:03
Speaker 6: And you know that's really shown through her record of
27:05
Speaker 6: the court. She has an unusually high success rate at
27:08
Speaker 6: the U. S. Supreme Court.
27:10
Speaker 2: So what happened during these oral arguments that led to
27:13
Speaker 2: this confrontation with Gorsu.
27:17
Speaker 6: Well, you know, this is a casepot by parents of
27:20
Speaker 6: a disabled student who's suing a Minnesota school district. And
27:24
Speaker 6: as they sort of understood the case as it came
27:27
Speaker 6: to the Supreme Court, you know, they thought it was
27:29
Speaker 6: a very narrow case, and during oral arguments, the parents' advocate,
27:34
Speaker 6: who himself is a seasoned Supreme Court veteran, you know,
27:38
Speaker 6: said that this school district had sort of pulled the
27:41
Speaker 6: rug out from under the justices and had changed course
27:45
Speaker 6: in the Supreme Court and advocated for a much broader,
27:49
Speaker 6: much drastic sort of request than what they thought that
27:53
Speaker 6: the case was about. And then when Lisa Platt got
27:56
Speaker 6: up to argue for the school district, she said that
27:58
Speaker 6: wasn't a correct character of their stance, and she actually
28:02
Speaker 6: accused the parents' attorney as well as the federal government's attorneys,
28:07
Speaker 6: who was on the side of the parents in this case.
28:09
Speaker 6: She accused them of lying. And it's really that accusation
28:14
Speaker 6: that really got under the skin of several of the justices.
28:17
Speaker 2: So was Justice Gorsuch seemingly the most upset. He raised
28:22
Speaker 2: his voice and said, be more careful with your words.
28:27
Speaker 6: Yeah, I mean, he was definitely the one who was
28:29
Speaker 6: most upset. But I will say that several of the
28:32
Speaker 6: justices seem to indicate that they sort of agreed with
28:36
Speaker 6: the parents' attorneys and with the federal government here in
28:39
Speaker 6: the categorization of the school district's stance, and so that
28:43
Speaker 6: made it all the more worse when Blatt said that,
28:46
Speaker 6: you know, those who were holding that you were lying.
28:48
Speaker 6: But Justice Gorsuch was the most verbal and most clearly upset.
28:54
Speaker 6: You know, he did tell her that comments set to
28:56
Speaker 6: watch her words, and then later in the argument he
28:59
Speaker 6: came back back to the issues, saying he was still
29:02
Speaker 6: troubled by it and really urging Lisa Blatt to withdraw
29:06
Speaker 6: her statement, which which she did. But as the parents'
29:10
Speaker 6: attorney said on rebuttal, really it was done under duress.
29:16
Speaker 2: So even just as Soto Mayor suggested that Black might
29:20
Speaker 2: have violated the court rules.
29:24
Speaker 6: Yeah, I mean along the way, you know, Justice Slittemwayer
29:27
Speaker 6: pointed out that the Supreme Court rules really admonish counsel
29:33
Speaker 6: to bring it to the attention of the justices if
29:35
Speaker 6: they think that there's you know, some issue with the
29:39
Speaker 6: you know, the kinds of questions that the justices are hearing.
29:44
Speaker 6: You know, obviously that way, the advocates and the justices
29:47
Speaker 6: are not surprised. And she suggested that you know, it
29:51
Speaker 6: was Black who was the one who was acting inappropriately here,
29:54
Speaker 6: and that if she really thought that the argument was
29:57
Speaker 6: supposed to be much broader. She should have that more
30:00
Speaker 6: clear in her briefing.
30:02
Speaker 2: So basically I mean is whether there was a heightened
30:07
Speaker 2: standard in the educational context, and then Black said it
30:11
Speaker 2: should be in every context.
30:13
Speaker 6: That's right, I mean, so you know the question. I
30:16
Speaker 6: think that the parents thought that they were answering, that
30:18
Speaker 6: the federal government thought that they were answering, and it
30:21
Speaker 6: was obvious from arguments that the justices thought they were answering.
30:24
Speaker 6: Was you know, insuing for disability discrimination, parents of school
30:30
Speaker 6: children have to make a heightened showing in order to
30:34
Speaker 6: hold schools liable, and it's a showing that doesn't apply
30:38
Speaker 6: outside the educational context. And that is actually the law
30:42
Speaker 6: in many circuits. Some circuit took on the other way.
30:45
Speaker 6: It's created sort of, you know, this circuit split that
30:49
Speaker 6: is quintessential of the cases that the Supreme Court decides
30:53
Speaker 6: to hear. But we heard on Monday that the school
30:56
Speaker 6: district agrees there's no special standard for schools. But at
31:01
Speaker 6: least as Latt argued that heightened standards should apply across
31:05
Speaker 6: the board to all disability discrimination cases, even those, for example,
31:10
Speaker 6: with employment. And the justices were really surprised by that
31:13
Speaker 6: argument that has not been the law in any circuit,
31:17
Speaker 6: and they were really resisting Lat's requests to say that
31:21
Speaker 6: for the first time in the Supreme Court in this case.
31:24
Speaker 2: So then did it seem like a majority of the
31:26
Speaker 2: justices were siding with the parents?
31:29
Speaker 6: You know? It did? There there are a couple of
31:32
Speaker 6: paths that the Supreme Court can take. They sort of
31:35
Speaker 6: picked it a lot of them, particularly before this Force's
31:39
Speaker 6: blat interaction. There was a lot of talk about the
31:42
Speaker 6: different methods or ways that the justices could side with
31:46
Speaker 6: the parents. I'm not quite sure what they'll do, but
31:49
Speaker 6: I don't think that they're going to be, at least
31:51
Speaker 6: not yet taking on this blast broader request to apply
31:55
Speaker 6: a heightened standard across the board.
31:58
Speaker 2: Veteran court watchers were also surprised by the nature of
32:03
Speaker 2: this exchange.
32:05
Speaker 6: They were I mean, as I mentioned before, Lisa Black
32:08
Speaker 6: does have a very distinctive advocacy style at the Court.
32:13
Speaker 6: But still people were surprised with sort of the hostility
32:18
Speaker 6: between the exchange between her and Justice Gorsage. That you
32:22
Speaker 6: mentioned that he raises voice several times. That doesn't usually
32:25
Speaker 6: happen in the Supreme Court. Many were surprised that she
32:28
Speaker 6: sort of didn't take the hint and withdraw her comment before.
32:33
Speaker 6: You know, a lot of pressure from Justice Gorsag. You know,
32:36
Speaker 6: we have some people who said they've never seen Justice
32:39
Speaker 6: Corsage be that angry on the bench. Tan I certainly
32:42
Speaker 6: listening to it, was quite surprised that it was an
32:45
Speaker 6: interaction that was happening at the Supreme Court.
32:48
Speaker 2: She just shows you the Supreme Court is so different
32:49
Speaker 2: because in a trial court, one lawyer accusing the other
32:53
Speaker 2: of lying might not even cause a ripple.
32:56
Speaker 6: Yeah, at the Supreme Court, it's just different. You know. Again,
33:00
Speaker 6: you know, there really is this expectation of decorum, and
33:05
Speaker 6: again I can't emphasize enough how important it is, you know,
33:09
Speaker 6: for advocates to speak to each other with respect, and
33:13
Speaker 6: particularly to speak with the justices. And I think, you know,
33:15
Speaker 6: one of the things that got Justice Corsage so upset
33:19
Speaker 6: was that Lisa Blatt seemed to keep trying to interrupt him,
33:22
Speaker 6: and at several points he admonished to let him finish,
33:25
Speaker 6: even raising his voice one time saying I'm not finished.
33:29
Speaker 6: And so I think it was just combinations of a
33:31
Speaker 6: couple of things that sort of made it rise to
33:34
Speaker 6: the level that it did.
33:35
Speaker 2: We'll have to see what happens next time she appears
33:38
Speaker 2: before the court. Thanks so much, Kimberly, an interesting story.
33:42
Speaker 2: That's Bloomberg Law Supreme Court Reporter Kimberly Strawbridge Robinson and
33:47
Speaker 2: that's it for this edition of The Bloomberg Law Show.
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