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Pioneer Institute Files Amicus Curiae Brief in U.S. Supreme Court School Choice Case

December 8, 2021/in Press Releases /by Sean Wong

Challenges Maine statute that excludes religious schools from school tuitioning law

BOSTON – Pioneer Institute has filed an amicus curiae brief in Carson v. Makin urging the Supreme Court of the United States to strike down a provision of Maine law. The Court will hear oral arguments in Carson this morning (December 8) at 10 am. The Maine law being challenged allows districts that don’t have their own schools to contract with a school or pay for students that choose to attend public or private schools, but explicitly excludes religious schools.

The Court’s 2020 ruling in Espinoza v. Montana Department of Revenue, a case in which Pioneer also filed an amicus brief that was cited by Justice Samuel Alito in his concurring opinion, Chief Justice John Roberts wrote in his majority decision that “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

“Maine law allows parents to access the public or private education that best suits their children – except if the school is religiously affiliated,” said Pioneer Institute Executive Director Jim Stergios. “We believe Espinoza makes it clear that such a provision runs counter to the Constitution.”

For over a century, until the early 1980s, religiously affiliated schools were included in the Maine school tuitioning program, under which communities that don’t have their own schools can either contract with a school or allow parents to use the per-pupil spending allotment to attend the public or private school of their choice.

The Maine state legislature, driven by the Senate chair of the education committee, re-codified the program in 1982 to prohibit parents and students from using the law to access religious schools, as was originally intended in 1873.

The Pioneer brief was co-authored by Michael Gilleran of Fisher Broyles and Ryan McKenna. Gilleran also was the lead attorney in Pioneer’s amicus brief in the landmark Espinoza case.

“We believe the Maine law clearly doesn’t pass constitutional muster under Espinoza, Gilleran said. “I hope this case will reiterate the Court’s position and open educational opportunity to more students across the country.”

The Court is expected to rule on the case before its current term ends at the end of June 2022.

For well over a decade, Pioneer Institute has used its legal work, research, events, polling, and op-eds to highlight nativist, anti-Catholic educational and legal barriers to school choice in Massachusetts and across the country. In 2018, Pioneer produced a 30-minute documentary, “Big Sacrifices, Big Dreams: Ending America’s Bigoted Education Laws,” that chronicles the struggles of four families in Massachusetts, Michigan, and Georgia, all states with so-called Blaine amendments that prohibit public money from flowing to religiously affiliated schools, to send their children to parochial schools.

About the Author

Michael C. Gilleran is a litigation attorney in Boston, and a partner in the national law firm of FisherBroyles, LLP, who has been active for many years in the cause of educational choice. He is currently Vice-Chair of the Board of Trustees of Thomas More College in New Hampshire and Rome. Formerly he was Chair of the Advisory Board of Catholic Charities of Greater Boston. For many years he has received the SuperLawyer© designation from Boston Magazine as well as the AV rating (preeminent) from the national Martindale-Hubbell attorney rating service. He is the author of a leading book on Massachusetts law, published by the largest national legal publisher, which is frequently cited by Massachusetts courts including the Massachusetts Supreme Judicial Court. His many legal articles have appeared in such publications as the American Bar Association Journal. He is frequently asked to give presentations on important issues of Massachusetts law with leading judges.

About Pioneer

Pioneer’s mission is to develop and communicate dynamic ideas that advance prosperity and a vibrant civic life in Massachusetts and beyond. Pioneer’s vision of success is a state and nation where our people can prosper and our society thrive because we enjoy world-class options in education, healthcare, transportation and economic opportunity, and where our government is limited, accountable and transparent. Pioneer values an America where our citizenry is well-educated and willing to test our beliefs based on facts and the free exchange of ideas, and committed to liberty, personal responsibility, and free enterprise.

Pioneer Institute Files Amicus Brief Urging Supreme Court to Hear School Choice Case

April 29, 2019/in Press Releases /by Sean Wong

Claims amendment to Montana Constitution motivated by anti-Catholic bias

Contact Micaela Dawson, 617-723-2277 ext. 203 or mdawson@pioneerinstitute.org

BOSTON – Pioneer Institute today announced that it has submitted an amicus curiae urging the United States Supreme Court to hear Espinoza v. Montana Department of Revenue, which challenges a state constitutional amendment marked by religious bias.

The amendment in question is a so-called Blaine amendment. It prohibits public resources from flowing to individuals to send their children to religiously affiliated schools, preventing Catholics and immigrants from receiving the kind of education that would enable them to become successful.

In the Espinoza case, Kendra Espinoza, a suddenly-single mom, sought a better education for her daughters. In public school, one daughter was bullied and the other struggled in her classes. Both children would later thrive in the parochial school of her choice.

Ms. Espinoza’s decision to send her daughters to Stillwater Christian School was not easy and caused her family financial difficulties. Her access to a badly needed scholarship was denied after the Montana Supreme Court struck down a legislatively established education tax credit program. The basis for the court’s decision was the state’s 130-year-old Blaine amendment.

While the money for the scholarships the Espinoza family accessed came from private sources, the Montana Innovative Education Program Credit provided the donors with tax credits for their contributions. According to the Montana Supreme Court, the Blaine amendment prevented Ms. Espinoza’s children from gaining access to the scholarships.

“Acts motivated by religious animus violate the first and 14^th amendments to the U.S. Constitution,” said Cornelius Chapman, an attorney and the author of “The Know-Nothing Amendments: Barriers to School Choice in Massachusetts.” “Even if they appear neutral on their face, they are impermissible if designed to persecute or oppress a religion or its practices.”

Legislative history and press coverage of efforts to enact a national Blaine amendment in the 1870s show that Catholicism was clearly the target of amendment proponents.

Sadly, anti-Catholic bias still animated a majority of Congress in 1889, when the enabling act authorizing Montana to form a state constitution required that it include a Blaine provision. The clause forced on Montana by an anti-Catholic Congress exists to this day in substantially unaltered form.

“Kendra Espinoza, like so many other parents, sought the education that best suits the needs of her children,” said Pioneer’s Executive Director Jim Stergios. “It is hard to believe that an amendment steeped in anti-Catholic bias still stands in her way 130 years after its passage.”

Massachusetts was the first of 38 states to adopt Blaine amendments. Two amendments to the Massachusetts Constitution are the work of the virulently anti-Catholic Know-Nothing Party, which came to power in the state elections of 1854, after a wave of Catholic immigrants arrived in the Commonwealth during the Irish Potato Famine.

The Pioneer brief was filed April 12, 2019. It was drafted by a team led by Michael Gilleran of Fisher Broyles and Professor Dwight Duncan of the University of Massachusetts School of Law. They were assisted by Harvard Law School students Annika Boone, Benjamin Fleshman, Anastasia Frane, James McGlone and Grant Newman.

The Court is expected to announce whether it will hear the case by early summer.

In 2018, Pioneer produced a 30-minute documentary, “Big Sacrifices, Big Dreams: Ending America’s Bigoted Education Laws,” that chronicles the struggles of four families in Massachusetts, Michigan, and Georgia, all states with Blaine amendments, to send their children to parochial schools. View the film here.

Pioneer Institute is an independent, non-partisan, privately funded research organization that seeks to improve the quality of life in Massachusetts through civic discourse and intellectually rigorous, data-driven public policy solutions based on free market principles, individual liberty and responsibility, and the ideal of effective, limited and accountable government.

Press Release: Pioneer Institute Filed Amicus Brief in Case Applying Supreme Court’s Janus Ruling to MA

January 8, 2019/in Press Releases /by Sean Wong

BOSTON – On January 8^th, the Massachusetts Supreme Judicial Court will hear oral arguments in the case of Ben Branch v. Commonwealth Employment Relations Board, in which the SJC will decide how the United States Supreme Court’s June 2018 decision in Janus v. American Federation of State, County and Municipal Employees (AFSCME) will affect Massachusetts law.

Pioneer Institute, through its public interest law arm, PioneerLegal, has filed an amicus curiae brief in the case prepared by WilmerHale’s Mark Matuschak and Robert Kingsley Smith.

Professor Ben Branch has taught for 38 years at UMass Amherst’s Isenberg School of Management. For decades, he has objected to having to pay compulsory service fees. To stop having to pay without consent, Dr. Branch and three other non-union educators brought the lawsuit now before the SJC.

The PioneerLegal brief argues that the First Amendment precludes coercing non-union public employees into financially supporting speech preferred by unions. As held by the U.S. Supreme Court in June, consent is crucial; no money may be constitutionally taken for such purpose from a non-union public employee without that employee’s prior consent.

PioneerLegal was active in Janus, filing a friend-of-the-court brief urging the Supreme Court to hear the case, and then filing a second friend-of-the-court brief during the Court’s deliberations.

“No rights are more essential than the right to free speech guaranteed by the First Amendment,” said PioneerLegal Research Fellow Jim McKenna. “The U.S. Supreme Court affirmed and preserved that right in Janus, and the SJC now has the opportunity to apply that principle in Massachusetts.”

In Branch, the Supreme Judicial Court will consider the constitutionality of Massachusetts laws that allow the compulsory collection of fees from non-union public sector employees. Given that the U.S. Supreme Court has held non-consensual collection to be unconstitutional, the SJC is likely to strike down the statute.

About Pioneer Institute and PioneerLegal

Pioneer Institute is an independent, non-partisan, privately funded research organization that seeks to improve the quality of life in Massachusetts through civic discourse and intellectually rigorous, data-driven public policy solutions based on free market principles, individual liberty and responsibility, and the ideal of effective, limited and accountable government.

PioneerLegal, as the public-interest law initiative of Pioneer, utilizes a legal-based approach to work to change policies that adversely affect the public interest in Pioneer’s core policy areas.

Pioneer Institute and the Tax Foundation File Amicus Brief in Graduated Income Tax Ballot Initiative Case

February 6, 2018/in Press Releases /by Sean Wong

Brief argues that Proposition 80 violates the state constitution, would result in harmful fiscal policy

BOSTON – PioneerLegal, Pioneer Institute’s public-interest law initiative, together with the Tax Foundation, has filed an amicus brief with the Supreme Judicial Court in support of the Massachusetts High Technology Council and others, in the case Christopher Anderson et al. v. Maura Healey.

The plaintiffs assert that Proposition 80, a ballot initiative to install a graduated income tax for Massachusetts, violates the state constitution and should not be allowed to appear on the Commonwealth’s November ballot.

Proposition 80 calls for adding an additional 4 percent state tax on all annual taxable income above $1 million and earmarking the resulting revenue specifically for transportation and education.

The brief argues that Proposition 80 violates the state’s constitution, which forbids initiative petitions from bundling multiple, unrelated provisions and usurps the Legislature’s exclusive authority over the state treasury. It contends further that passage of the measure would result in poor and risky fiscal policy.

Proposition 80 combines three unrelated provisions: a tax increase, an appropriation for transportation, and an appropriation for education. Drafters of the state constitutional provision on initiative petitions sought to ensure that petitions express a single unified public policy statement that voters could accept or reject, and specifically sought to prevent the bundling of unpopular provisions like a tax increase with more popular ones such as increasing education and transportation funding.

The state constitution also forbids initiative petitions from including a “specific appropriation,” defined as seizing all revenue from a designated source and appropriating it for a specified use – in this case, transportation and education. The provision is designed to ensure that special interests don’t usurp legislative control of the state treasury.

In 2014, a computer and software services tax was enacted to help balance the state budget. When it was shown to negatively impact the Commonwealth’s economy, the Legislature quickly repealed it.

In 2000, state voters approved a ballot initiative to reduce the state income tax to 5 percent by 2003. When the economy cratered soon after its passage, the Legislature stepped in and froze the rate at 5.3 percent.

Since Proposition 80 would amend the state constitution, such swift action would be impossible. The process of amending the constitution again to change or repeal Proposition 80 would take a minimum of three years. This form of budgeting by ballot initiative is a textbook example of depriving the government of the flexibility required to efficiently address changed circumstances and unexpected crises.

“There’s a reason why setting fiscal policy by constitutional amendment is almost universally condemned,” said Pioneer Executive Director Jim Stergios.

The brief also cites research by Pioneer and other entities showing that states like Connecticut and New Jersey that enacted similar policies actually saw adverse economic consequences within just a few years.

“This tax increase would catapult Massachusetts from the middle of the pack to among states with the highest capital gains rate in the nation. It would also significantly increase the taxes paid by many small pass-through businesses and encourage ‘tax flight’ by individual taxpayers,” said John Sivolella, Senior Fellow in Law and Policy at Pioneer, who leads PioneerLegal. “The overall effect would be to inhibit financial growth in the Commonwealth, and adversely affect state revenues.”

About Pioneer

Pioneer Institute is an independent, non-partisan, privately funded research organization that seeks to improve the quality of life in Massachusetts through civic discourse and intellectually rigorous, data-driven public policy solutions based on free market principles, individual liberty and responsibility, and the ideal of effective, limited and accountable government.

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