In the coming months, many lawsuits will make their way through state, federal, and even the U.S. Supreme Court. Three cases in particular have the potential to shape the future of religious freedom, due process, and freedom of speech in education:
This year the U.S. Supreme Court will consider Espinoza v. Montana Department of Revenue. The case asks whether a Montana rule that forbids state scholarship dollars from going to religious schools violates the freedom of religion clauses or equal protection clause of the U.S. Constitution.
Montana’s scholarship program gives students an opportunity to attend schools their families might not otherwise be able to afford. Parents Kendra Espinoza, Jeri Anderson, and Jaime Shaefer, plaintiffs in the lawsuit, share that even with the state’s scholarship program, they struggle to send their children to Stillwater Christian School. They say the sacrifice is worthwhile because their children are thriving.
Shortly after the program began, Montana’s Department of Revenue prohibited recipients from using their scholarships at religious schools like Stillwater. The law aligns with the state’s “Blaine Amendment” which prohibits state funds from going to religious entities and means families like the Espinozas, Andersons, and Shaefers can no longer use state scholarships to give their children the education they feel is best.
Across the country, 37 states have similar laws blocking state aid from going to religious schools. If the Supreme Court strikes down Montana’s law, it could open the door to greater education options for state scholarship recipients across the nation.
“This could be the most impactful Supreme Court case since the pivotal Zelman decision in 2002 which ruled that state-level voucher programs are constitutional,” said John Schilling, President of the American Federation of Children about the Espinoza case. “This Montana case has the opportunity to definitively establish that religious schools cannot be excluded from school choice programs by virtue of their religion.”
Due Process in Education
Not all significant education lawsuits are decided at the Supreme Court. The first-of-its-kind class-action lawsuit, John Doe v. Michigan State University could shape due process in the age of #MeToo.
John Doe was a sophomore at Michigan State when he was accused of sexual assault. His complaint states that he was suspended on the word of an investigator who served as prosecutor, judge, and jury—without a hearing to confront or question his accuser.
Doe argues that Michigan State ignored due process in its pursuit to find him guilty and thereby alleviate the pressure the school faced with the Nassar scandal, Department of Education investigation, and reports alleging high levels of unredressed sexual assault on campus.
“Unfortunately, the misapplication of Title IX has reached new depths at Michigan State,” said Andrew Miltenberg, the lawyer who filed the lawsuit. “Michigan State, in trying to distract attention from its own misdeeds, is consistently and systemically using Title IX as a weapon of law against its accused students, with life-altering consequences for these young men and women.”
Whether Doe wins or loses, the case offers a word of caution to colleges and universities facing pressure to find and punish sexual assault. In their pursuit of justice, institutions of higher education must remain vigilant in upholding those processes that defend the innocent.
Free Speech in Education
A third significant case, Speech First, Inc. v. Gregory L. Fenves, questions whether University of Illinois at Urbana-Champaign (UIUC) policies violate First Amendment speech protections.
In December 2018, the nonprofit education research organization Foundation for Individual Rights in Education released a study which found that 89.7 percent of American colleges and universities restrict protected student speech. According to a 2018 Gallup poll, 61 percent of students agree that the climate on their campus prevents some people from expressing their views.
Speech First contends this is the case at UIUC. In its complaint, Speech First notes that anonymous student “bias” reports are investigated by a UIUC campus Bias Assessment Response Team (BART). These investigations may incur No Contact Directives, sanctions that prohibit students from interacting with one another, without giving students the chance to question their accusers. In addition, bias reports remain on students’ academic records, impacting their scholarship options, study abroad applications, and other academic efforts.
“On a regular basis, the University of Illinois sends a clear message to students who wish to engage in political and religious speech. There are some views that are welcome and others that are not,” said Speech First President and Founder Nicole Neilly, “Students deserve to express themselves and voice their opinions without fear of investigation or punishment – which is why these policies must be reformed.”
A win against UIUC would build on a recent victory against the bias response team at the University of Michigan and encourage the more than 230 schools with similar bias response teams to re-evaluate their policies in light of constitutional free speech protections.