President Trump and Secretary DeVos: Religion

and Law in Public

- What’s Hot! What’s Not!

One Year Later

Dustin Robinson, Steve Permuth*, Meaghan McKenna, Amanda Fleischbein,

and Jacob Durrance

A grave responsibility confronts this Court whenever, in course of litigation, it must reconcile the conflicting claims of liberty and authority. But when the liberty invoked is liberty of conscience, and the authority is authority to safeguard the nation's fellowship, judicial conscience is put to its severest test.i

Minersville v. Gobitis, 310 U.S. 586

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us…ii

A Tale of Two Cities - Charles Dickens

* The writing was prepared by the authors in their personal capacity. The opinions expressed in this article are the authors’ own and do not reflect the view of the University of South Florida.

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This writing seeks to provide an overview of the Trump Administration’s first year. To help illustrate the year in review, we refer to several cases:

Burwell v. Hobby Lobbyiii Trinity Lutheran Church of Columbia, Inv. v. Comeriv Locke v. Daveyv Doyle v. Taxpayers for Public Educationvi Associations of Nonpublic Schools v. Mosesvii Significant emphasis is placed on the efforts of the President, , Secretary of

Education, Betsy DeVos, and the most recent appointee to the Supreme Court, . A thorough review of their claims, aspirations, and actions is provided.

Engrossed in the age of accountability, public entities are subject to immense scrutiny. As such, the functioning of public districts across America has received much attention.

Shifts in the political stature of the country have led to a renewed focus on the alleged failed efforts of public education systems. The election of President Trump, coupled with the appointments of Secretary of Education, Betsy DeVos, and Supreme Court Justice Neil Gorsuch have spurred further debate on public school reform efforts.

The Trump administration has voiced its condemnation of K-12 traditional public schools. In a 2016 interview with Sean Hannity, Donald Trump claimed that “Largely, we can eliminate the Department of Education”.viii To date, his promise to dismantle the Department of

Education has fallen short of fulfillment. Although his 2018 budget proposal trims nearly $9 billion from the $68 billion for 2017, a 13% decrease, the Department remains in operation. 3

As we provide depth to our discussion on the Trump administration and President

Trump’s appointees, we highlight two previous works. The first work, Epilogue: Special Issue of the ELPR Church-State Law in Public Education Institutions,ix by Steve Permuth*, Dustin

Robinson, Meaghan McKenna, and Susan Silver*, represents an overview of promises and platforms voiced by President Trump. Additionally, of high relevance to our discussion is a Case Commentary written by Dustin Robinson, Steve Permuth, and Meaghan McKenna, that provides an overview of the

Trinity Lutheran Church of Columbia v. Comerx decision. It is our hope that the aforementioned publications serve as support structures for the discussion that follows.

We begin with an excerpt from our first supporting document, Epilogue: Special Issue of the

ELPR Church-State Law in Public Education Institutions. xi

The Experts and Pundits Were Wrong!

Americans woke up the day after the election to the reality that Hillary Clinton had lost

the electoral vote and that Donald J. Trump would become the 45th President of the United

States on January 20, 2017. The comfortable certainty of where education law at the

federal level would move was gone and replaced with the likelihood of a dramatic shift to

the right by the new administration.

The President-Elect, at his inauguration, strongly suggested the need to “trust” him

because of his wealth and business experience to make “deals” for all Americans and bring

us together to “Make America Great Again.” We would work together to develop and

enforce policies for the good of all Americans. Later speeches would indicate priorities

based on campaign promises and expediency to “deal” with a number of issues, elements

of which had direct and/or indirect bearing on education. 4

With primacy on time, the push to succeed, and establishing a clear legacy, and not excessive concern about differences but the need to go around or through them if needed, the major issues appeared to include: 1) “Repeal and Replace” the Affordable Care Act

(i.e., Obama Care) as the first agenda item of the new administration; 2) establishing major reform; 3) building a wall on the border of the United States and Mexico; 4) immigration reform (including deportation); 5) primacy of military spending; 6) rolling back of regulations in a large number of business and non-business corridors including education; 7) quick movement to solidify the federal courts within a more conservative mission and vision; and 8) a decision to “drain the swamp” of old politicians and Wall

Street.

Many of Mr. Trump’s supporters were people who were not satisfied with the direction of the nation and their status in it. Others, including some of those at the very top of the economic scale, viewed his leadership as benefitting them through changes in regulations in areas of tax reform and elimination of regulations. Given control of the Presidency,

Senate, and House, the Republican leadership was organizationally poised to move forward. But the task would not prove easy, in large part, due to internal philosophical and political posturing within the Republican Party.

But considerable public concern and pressure on issues (e.g., healthcare) communicated to members of Congress and to others (e.g., Governors) slowed the efforts. The political winds continue to swirl including the albatross of Russian intervention in the presidential election and possible Trump administration involvement. To add to other issues, questions about the role of his personal family members (i.e., son, daughter, son-in-law) as major 5 advisors has raised reservations. These concerns are increasingly shared even by some of

Mr. Trump’s election supporters.

To those that did not support Mr. Trump, America had made a mistake. They awoke the morning after the election with discontent, a pall of anguish, disbelief, and fear. Some suggested they would move out of the country, expressing a deep feeling of resignation of defeat and mourning, and a sense of loss of national ideals and innocence. Everyone understood the reality: A major shift to the political/legal right. But how far, how deep, and how fast might this happen?

There were concerns on issues including support for public education; regulations on schools (from food requirements to integration); the rights of children with specials needs;

LGBTQ community rights; minority rights; immigrants and immigration rights; marriage equality; and the possible impacts of a new Secretary of Education, Attorney General, and newly appointed federal judges on public schools and the enforcement of civil rights.

Regarding church-state relations specifically, how far would the new administration go in pushing the agenda of the Religious Right on school prayer, “voluntary” bible-reading, flag salutes, tolerance of proselytizing and the accommodation of favored religious organizations in public schools?

The President made two appointments in this first year which will surely impact the future of church-state relations in America and which offer additional insights on where we may be moving nationally. They were the appointments of Elizabeth (Betsy) DeVos as Secretary of Education, and Neal Gorsuch as Associate Justice of the United States

Supreme Court.

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Betsy DeVos

On the heels of President Trump’s inauguration, Betsy DeVos was nominated for the position of Secretary of Education. DeVos’ nomination was met with extreme controversy as leaders from various factions (e.g., political, educational, etc.) rallied in opposition to her confirmation. Although many adamantly opposed DeVos fulfilling the role of Secretary of

Education, she was confirmed by the Senate committee by narrow 12-11 vote. The vote was clear split along party lines with twelve republicans voting in her favor and eleven democrats voting against her nomination.

In a recent speech prepared for the National Alliance for Public Charter Schools, DeVos, promoting , stated, “A system that denies parents the freedom to choose the education that best suits their children's individual and unique needs denies them a basic human right. It is un-American, and it is fundamentally unjust”.xii The advancement of alternatives to traditional public school is not a novelty held solely by the Trump administration. However,

Trump and DeVos’ open condemnation of public education, painting schools as failures, is unique to this administration.

Alternatives to Traditional Public School

Now, more than ever, families with school-aged children have numerous K-12 education options. From traditional, charter, voucher, private, and parochial schools, which are now inclusive of virtual opportunities, there is no shortage of education settings. With the appointment of Betsy DeVos comes a strong national movement towards the expansion of charter and voucher programs. During her time Michigan, DeVos’ made a concerted effort to advocate for school voucher programs that allow public funds to pay for private school tuition.xiii 7

While DeVos gave voucher programs a tremendous amount of attention, they are not the only traditional school alternative that she supports.

The promotion of charter schools, particularly those classified as for profit, are an additional agenda item for DeVos. While charter schooling has shown to be one of the most bipartisan educational issues, the expansion of legislation has not been well received by all education officials. When looking at alternatives to traditional public schools, funding and management represent a key difference between charter schools and voucher programs. Charter schools a predominantly publicly funded, yet privately managed. This allows charter schools to be flexible in their approach and adherence to state policies. While charter schools are under an authorizer, boards and board appointed administrators directly control the day-to-day functions of the school.

While the previous educational capacities of Betsy DeVos fueled controversy around her credentials and preparedness to fulfill the position of Secretary of Education, Trump’s nomination of Neil Gorsuch was quite different.

Neil Gorsuch

On January 31, 2017 President Trump made public his nomination of Neil Gorsuch to the

Supreme Court. Prior to Trump’s nomination, Justice Gorsuch served on the United States Court of Appeals for the Tenth Circuit for nearly eleven years. A position for which he was nominated by George W. Busch. While seated on the Tenth Circuit, Gorsuch played an influential role in the case of Burwell v. Hobby Lobby.xiv

President Trump’s nomination was met with both praise disdain from politicians and their constituency. Describing the senate confirmation hearings, Adam Liptak and Matt Flegenheimer 8 of the New York Times argued that Gorsuch “presented himself as a folksy servant of neutral legal principles, and senators had little success in eliciting anything but canned answers.”xv

Upon his confirmation, Justice Gorsuch was tasked with ruling on Trinity Lutheran v. Comer, a case that the Americans United for the Separation of Church and State speculated may threaten

“to disturb the healthy distance between religion and government.”xvi As is outlined in an excerpt

xvii from the Case Commentary on Trinity Lutheran Church of Columbia v. Comer, the justices in Trinity were tasked with determining if excluding parochial institutions from receiving public aid violates the Free Exercise Clause and the Equal Protection Clause. The following excerpt provides a detailed overview of the ruling, as well as its implications.

Governments are not allowed to discriminate against churches that would otherwise

qualify for public funding solely because they are religious institutions.

Supreme Court

In January 2016, the Supreme Court granted the petition for certiorari to the Eighth

Circuit Court. As author of the 7-2 decision, Justice Roberts argued that the state’s policy

excluding religious institutions from serving as a beneficiary of public benefits violates the

Free Exercise Clause. The Court made it very clear that denial of the grant is not the basis

of Trinity’s religious discrimination claim; rather, it was refusing to allow the church,

simply because it is a church, to compete with secular organizations for funding and

resources. Justice Roberts argued, “Here there is no question that Trinity Lutheran was

denied a grant simply because of what it is a church.” 9

A concurring decision by Justice Thomas, joined by Justice Gorsuch, suggested:

…Locke did not subject the law at issue to any form of heightened scrutiny. But it

also did not suggest that discrimination against religion outside the limited context

of support for ministerial training would be similarly exempt from exacting review.

Justice Thomas continued by signifying his resistance to join Footnote 3 for the reasons stated by Justice Gorsuch. There is much debate over Footnote 3, which states, “The case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding of other forms of discrimination.”

The footnote represented four justices of the Supreme Court, while Chief Justice Roberts,

Justice Gorsuch, and Justice Thomas refrained, fearing the statement implied: “only

‘playground resurfacing’ cases, or only those with some association with children's safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court's opinion.”

Footnote 3 creates a gray area of ambiguity and may prove a focal point in church-state issues still to come.

Again, it is notable that Justice Sotomayor and Justice Ginsberg dissented and summarily said, “The court today blinds itself and leads us instead to a place where separation of church and state is a Constitutional slogan, not a Constitutional commitment.”

Much attention is given to the , as they claim error in the Court’s ruling. Justice Sotomayor argued: 10

The Establishment Clause does not allow Missouri to grant the Church's funding request because the Church uses the Learning Center, including its playground, in conjunction with its religious mission. The Court's silence on this front signals either its misunderstanding of the facts of this case or a startling departure from our precedents.

This case generates a number of thoughts regarding separation of church and state issues. We feel that three questions remain critical for future study and court decision making in relation to church-state relations.

First, considering the insistence by the majority that the Establishment Clause is not relevant here, is a pattern emerging that such issues are to be considered state functions and no longer under federal juris? Second, is the Court intimating that all state Blaine

Amendments violate the federal Constitution? Third, what does Footnote 3 mean for future decisions? Although not a formal part of the decision, what implications does Footnote 3 have for future church-state cases?

Also of interest, following the decision in Trinity, the Supreme Court held two cases for consideration, Doyle v. Taxpayers for Public Education, and New Mexico Associations of Nonpublic Schools v. Moses. In the Doyle case, from the state of Colorado, the petition was granted, the judgment was vacated, and the case was remanded to the Supreme Court of Colorado in light of the Trinity decision. The question is whether the state of Colorado violates the Equal Protection Clause to invalidate a generally available and religiously neutral student aid program because the program affords students the choice of attending religious schools. The Court, in sending it back, is responding to the question of whether it violates the Establishment Clause and the Free Exercise Clause. 11

Similarly, in the New Mexico case, the petition was granted, the judgment was vacated, and the case was remanded to the Supreme Court of New Mexico. At question is the constitutionality of a textbook lending program that provides curriculum materials for private schools. The New Mexico Supreme Court held that Blaine amendments, embedded within the state constitution, prohibit such a program.

The conclusion of the Trinity case supports that the separation of church and state goes to extremes when religious establishments are unable to obtain government grants issued for secular purposes. This leads to the question of how much separation there is between church and state, as this may now be perceived as narrowed. And yet, excluding a preschool from a program because the school is part of a church is unconstitutional.

This case will have an effect on several areas: freedom of conscience, protection of faith communities from government discrimination, and freedom for faith communities.

The Constitution states that religion can be freely chosen without any interference from the government. This also means that the government doesn’t tax people to pay for religious ministries or for the maintenance of any religious buildings. If the government began to choose which faith communities receive public funding, discrimination would result because less-common places of worship might be left out.

As a result of the Trinity decision, other states may change policy currently in place in order to prepare for similar situations that may occur in the future. Thirty-nine states thus far have banned the use of tax dollars to support churches. Previously, all individuals had the freedom to choose to support the religious organization of their choice, and faith communities have been allowed to speak out about issues at any time, without any 12 restrictions. This decision may also lead to additional disputes from religious groups, as well as those applying for school choice or receiving government-funded loans at religious colleges.

Looking ahead to future cases dealing with church-state relationships raises potential questions, including the legitimacy of Blaine amendments and the significance of

Footnote 3, particularly when Justices Gorsuch, Thomas, and Chief Justice Roberts would not take the limiting view of the Court. What will happen if Justice Kennedy retires and other Justices in the conservative vein, appointed by President Trump, would follow? How far does the Establishment Clause of the federal Constitution reach? Perhaps there are answers deep within this case that others might see, but we suggest that it is still best to quote Bob Dylan’s song title that the answers are “Blowing in the Wind.”

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i Minersville v. Gobitis, 310 U.S. 586 (1940). ii Dickens, C., & Schama, S. (1990). A tale of two cities. New York: Vintage Books. iii Burwell v. Hobby Lobby, 573 U.S. ___ (2014). iv Trinity Lutheran Church of Columbia, Inc v. Comer, 132 S. Ct. 2012 (2017). v Locke v. Davey, 540 U.S. 712 (2004). vi Doyle v. Tax Payers for Public Education, 356 P.3d 833 (2013). vii New Mexico Associations for Non-public schools v. Moses, 367 P.3D 838 (2015). viii Hannity: Interview with Donald Trump (Fox News television broadcast Apr. 4, 2016). ix Steve Permuth, Dustin Robinson, Meaghan McKenna, and Susan Silver, 4 EDUC. L. & POL’Y REV. 119-121 (2017). x Trinity Lutheran Church of Columbia, Inc v. Comer, 132 S. Ct. 2012 (2017). xi Steve Permuth, Dustin Robinson, Meaghan McKenna, and Susan Silver, 4 EDUC. L. & POL’Y REV. 119-121 (2017). xii Betsy DeVos, Secretary Betsy DeVos Prepared Remarks National Alliance for Public Charter Schools (June 13, 2017, Washington, D.C.). xiii Valerie Strauss, A Sobering Look at what Betsy DeVos did to Education in Michigan- And what she Might do as Secretary of Education, (December 8, 2016). xiv Burwell v. Hobby Lobby xv Adam Liptak & Matt Flegenheimer, Neal Gorsuch Confirmed by Senate as Supreme Court Justice, THE NEW YORK TIMES (April 7, 2017). xvi Americans United for Separation of Church and State, Trinity Lutheran Church of Columbia v. Comer: A Serious Threat to Religious Freedom. (2017). https://au.org/content/trinity-lutheran- church-of-columbia-v-comer-a-serious-threat-to-religious-freedom xvii Dustin Robinson, Steve Permuth, and Meaghan McKenna. Case Commentary: Trinity Lutheran Church of Columbia, Inc. v. Comer No. (15-577), (178-179), June 26, 2017.