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Tuesday, June 30, 2020

Espinoza, long projects, and doctrinal change

Today's decision in Espinoza is, for me, very welcome, but also prompts some strange feelings and emotions.  I have been working on (what I regard as) the cluster of school-choice/educational-pluralism/religious-freedom issues and questions for a long time.  (Here, for example, is an essay on "The Blaine Amendments" from 17 years ago.)  Professor Garnett the Greater (i.e., Nicole Stelle Garnett) was working to challenge state-law exclusions of religious schools from choice and scholarship programs with the merry band at the Institute for Justice in the mid-1990s, and I filed (unsuccessfully!) cert. petitions in Vermont and Maine cases raising the matter, with Prof. Michael Stokes Paulsen, back in 1999 (I think!). 

Clearly, the doctrine has evolved (for the better, I think) in this area.  From Lemon and Nyquist, to Zelman and Mitchell, and now to Trinity Lutheran and Espinoza, the rules have changed from (as I see it) "discrimination against religious schools and those who choose them is often required" to "discrimination against religious schools and those who choose them is rarely permitted."  It's fascinating to step back, a bit, and trace the development, follow the lines of argument, note the incremental steps.  We will see what the real-world policy effects and implications are, but my own hope is that they will include enhanced educational pluralism, increased choice and opportunity, and a brighter future for currently beleaguered ("in these complicated times") Catholic schools.  (I realize, of course, that many Prawfs readers and colleagues will disagree, which is, of course, fine.)

All that aside, there is a (for me) weird "what now?" (or, "now what?") feeling.  A development in legal doctrine that I have been hoping for, and fretting about, for a long time, has come about.  I don't have any illusions, to be clear, that I had anything to do with it and I certainly realize I'm far from being the only or first lawyer or law professor to have this feeling.    

Posted by Rick Garnett on June 30, 2020 at 12:06 PM in Rick Garnett | Permalink

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