Oran Smith:
Good day and welcome. This is Beyond Policy. I’m your host, Dr. Oran Smith with Palmetto Promise Institute. And today we have with us Daniel Suhr. He serves as the managing attorney for the Liberty Justice Center, where he spends each day on the front lines fighting to preserve our rights and our liberties.
He is the leader of the education reform practice there along with state Senator Brian Kelsey of Tennessee, who I’ve run into a few times at some conferences, arguing against the ACLU to save scholarships from low income parents in Tennessee and demanding that bureaucrats in Arizona do the right thing by children in Arizona.
He was policy director for Governor Scott Walker where he helped to advance Governor Walker’s agenda for a freer Wisconsin. He also leads the practice of fighting back against cancel culture, and I want to come back to that one because we should be able to have some fun with that.
He holds a BA and a JD from Marquette and master’s degrees from Georgetown University Law Center and the University of Missouri at Columbia. The other Columbia. I’m speaking to you from one of the Columbias. There’s no way that you would even know this, but the Columbia, South Carolina University of South Carolina has this football game every year with Missouri and they have this mayor’s trophy that they pass around. Whichever Columbia wins, gets the trophy. So this last time Missouri went home with the trophy. So we’ll see what happens next year when they meet again.
Daniel Suhr:
I’ll say go Gamecocks. I’m okay with that.
Oran Smith:
Right, right. Yes. Well, I wanted to ask you first of all, Liberty Justice Center– you know, I heard this line one time about a guy that gets in a cab in New York City and they say, where to sir? And he says, it doesn’t matter. I have business everywhere. I mean, it’s almost Liberty Justice Center is just doing so much good work in so many areas from pushing back against government overreach to pushing back against public unionization in the wake of the Janus decision, which Liberty Justice Center had something to do with that as well.
School choice, workers’ rights, free speech. I mean every day it’s a different wonderful battle that you’re fighting on behalf of people that believe the government should not be running every single aspect of our lives. So thank you for all you do every day.
Daniel Suhr:
Well obviously thank you, Oran for having me on the show and for what the institute does. It is a joy. Every case I take, I have two clients. My first client is the person who signs the engagement letter, the person who I represent, but my other client in every case is the constitution.
And most lawyers don’t get to say that, but it’s a real privilege for those of us who do conservative public interest law that every time I go into a courtroom, my goal is not just to win for my client. It is, but it’s also to win for the constitution, for the country, for the American people because all of us have a stake in ensuring that our rights and liberties are defended and upheld and that government stays within its appropriate limited role to make room for a robust civil society and a growing economy.
Oran Smith:
Absolutely. We’ve been working together a little bit on education issues and the history of education, particularly in South Carolina, but really the US because of the litigation. But I wanted to ask you first as a little side trip here about cancel culture.
Just wonder if you could give me some examples of the types of real people, and one of the things that this podcast is about is real people and how real people are affected by policy. So if a government policy or someone using some method of force, either from the government or from a private entity to cancel someone to say that someone’s views are not politically correct. I know that’s an old term, but it still kind of works. So what’s some examples in that Liberty Justice has been doing fighting this cancel culture thing, some real people?
Daniel Suhr:
Yeah, real people. It is true. The woke agenda does not stop with the government. It does not stop with elites. It comes down to regular everyday people. So I’ll give you two cases that come immediately to mind. One is Denise Foley. She is an award-winning employee of the Massachusetts Medicaid program.
She works with state Massachusetts and she helps train case workers on how to help people get Medicaid. And so this is what she does and she’s great at it. She’s actually received certificate of accommodation from the governor of Massachusetts for being great at helping people.
And about two years ago now, a year and a half ago, in her private Facebook page with some of her neighbors, she had the temerity to say, masks are bad and we should not be turning each other in for failing to wear masks. And she was called into a Zoom meeting by her supervisor a couple of days later and told, we saw your post.
It is contrary to the position of the state of Massachusetts because we think masks are great. And so you’re gone, you’re fired. Doesn’t matter, anything you’ve done in the past– doesn’t matter. You’re fired just like that, gone. So obviously when you become a public employee, that doesn’t mean you just give up your First Amendment rights.
You’re not just all of a sudden stripped of your citizenship when you go to work for the government. Denise has every right to vote. She has every right to say what she wants on Facebook, and she has every right to disagree with the government. And in this instance, even though her job has nothing to do with masking, it has nothing to do with Covid, it had nothing to do with anything, because some bureaucrat got a bur under their saddle that Denise was “off message”, canned, gone.
Oran Smith:
Wow. And she obviously has nothing to do with medicine either. She’s not in a position where she’s dispensing medical advice.
Daniel Suhr:
No. She was training case workers on how to sign people up in the computer system. Her role was completely divorced from anything about the pandemic, but simply because she had an unpopular opinion that challenged what the government’s preferred opinion was, she lost her job. I’ll do you one better? I’ll give you another great example.
I represent a guy named Barton Thorn. He is a high school principal in Memphis, Tennessee. And Barton is in the biggest high school in the toughest neighborhood in Memphis. And he has turned that place around. Grades are up, absenteeism is down. He is doing great as the principal.
So one of the ways he does that is he connects with his students. And so he does a weekly video message from the principal, and it’s just like video announcements at any school. It’s whose birthday, it’s what’s the weather, it’s what’s for lunch. But at the end, he always adds a little minute of wisdom from Principal Thorn.
And actually just about two years ago now, Barton got on his weekly video announcements and said, “You know students, you should be thoughtful about the role of social media in our democracy. And it is a scary place to be when social media companies get to decide what you can think, what you can say, and what you can tell other people.
And in America, we believe in a marketplace of ideas where everybody gets the chance to say their piece. And if you disagree with someone, the way you respond to that is by offering your own opinion, not by taking away that other person’s right to speak.” This is Social Studies 101 in most American classrooms.
Oran Smith:
Yes. It sounds like he’s quoting the Chicago statement.
Daniel Suhr:
At some points he quoted the US Supreme Court, like classic First Amendment, classic American social studies. So he says this obviously shortly after President Trump had been taken down off of Twitter. And so complaints were filed. He never used the words President Trump. He never talked about January 6th. He never made any political statement or any Republican statement or anything like that.
He just told students at a level they can understand social media, where they live every day, here’s how our democracy works and here’s how to think about your role as a citizen in free speech. And he was reported for a harassment incident. He was immediately suspended, just like if it had been sexual harassment or something like that.
He was immediately suspended, revoked his credentials, took away his badge and his keys so he couldn’t come in the building anymore, because he was a threat to students and staff. And he languished on suspension for six weeks until the morning we sued them and he got a letter saying, you can come back in now.
Oran Smith:
So you litigated by letterhead and they had to come to terms.
Daniel Suhr:
Yeah, we actually sent them one if not two letters, and they just blew us off, just ignored us. And then the morning we actually filed the lawsuit, they said, oh, okay, now you can come back into work.
Oran Smith:
Wow. So any further repercussions?
Daniel Suhr:
Well, we’re asking for some financial damages because of what it did for his career.
Oran Smith:
His reputation and career.
Daniel Suhr:
His reputation. But he was targeted by activists within his school teaching staff, essentially, he was targeted by a woke speech police that heard his message, ran it into their political context where he wasn’t saying anything, but they just ran it through that filter because that’s where their head is and saw it as a chance to just go after this guy.
And that’s what they did. And his school board threw him under the bus. His school board went on television that night and suggested that his statements were racially insensitive.
Oran Smith:
Unbelievable.
Daniel Suhr:
Again, Denise is like a regular everyday person working in a cubicle doing trainings. Barton’s a great principal. And yet in both cases, because they said something that ran contrary to the political correctness, the preferred woke answer, they were both … Denise lost her job, Barton almost lost his job. It’s everyday people and they’re just being targeted by this cancel culture.
Oran Smith:
Right, thank you, and that latter example, it’s this merger of politics and police, it’s where all of a sudden a political difference becomes a law enforcement issue. All of a sudden someone has said something consistent with the values of the founders and with the First Amendment, and they’re in handcuffs shortly after.
I mean the politicization of the police, I’m not going to go there, but their lots of examples in world history of where the police and politics kind of get intermingled. Let’s just say it’s very totalitarian and it’s really scary.
Daniel Suhr:
Well it’s essentially swapping literally the police. This is one of the things that we have to be especially careful about. Look right now in the news, Oran, with what’s happening with Twitter and the FBI, where we’re seeing the FBI has been in close coordination with Twitter about which accounts to take down.
So I represent a guy, again, talk about average everyday Americans, I represent a guy named Justin Hart, who just got really fired up about the fact that everything was getting locked down. So, he’s a marketing consultant. Regular guy, lives in San Diego, and he just got really fired up about everything getting shut down.
And so Justin started tweeting about it and Justin tweeted out some statistics about masking kids from peer-reviewed published studies. And Twitter put him in Twitter jail. Twitter took away his accountant and we sued. And our argument is that the Surgeon General’s office has been coordinating with the White House and Twitter to target people like Justin.
Well, it’s one thing if the Surgeon General is coming after you, I don’t know where the Surgeon General fits on the government org chart, right but imagine if the FBI is coming after you. And imagine if you’re on Twitter and you’re getting communications from the FBI saying, we don’t like what this guy is saying.
What do you think companies and people are going to do when the FBI comes in and says, you should take this guy down. That’s not a suggestion when it comes from the FBI.
Oran Smith:
And I think even in South Carolina, our history, we have a law enforcement investigation arm called SLED, the State Law Enforcement Division. And part of the reason that like Virginia, we don’t … and we also have the South Carolina Highway Patrol, troopers, only recently have we called Highway Patrol people troopers, it’s because in South Carolina we just don’t like the sound of the state police.
We don’t want them to be called the state police. We really, we’re not sure what we thought about trooper because this has this idea of a government that sort of has a political police, not really what we’re interested in. We’re interested in maybe an investigation arm of a legal entity, but the idea of a state police, and they really do sound like they’re functioning as the state police.
Daniel Suhr:
We should all be concerned about the intertwine between the police and big government and these big corporations, big tech companies that are really becoming more and more … At base, the problem is they’re all reflective of the same elite opinion that is characterizing so much of our culture and our institutions.
If we have law enforcement leaders who go to top law schools that are all the same ideology and they clerk for top judges that are all the same ideology and then they get to be FBI director, we shouldn’t be surprised that they reflect the ideology of the law firms they’ve worked at and the judges they clerk for and the law schools they went to.
All of these elite institutions replicate across each other and end up reflecting the same values. And the problem is right now, those values are the woke agenda. And so we’re seeing it across-
Oran Smith:
Whereas in the past, maybe the same law schools were overrepresented, but at least there was sort of a respect for how the constitution would see it. And while a person may have a personal belief, it never became an official policy. But now all of a sudden that’s starting to be blurred. Very disconcerting.
Daniel Suhr:
Yeah. We’ve lost so much of our common American commitment to the Constitution. I really believe that initially our lead institutions, maybe they were wrong in other ways, maybe they were very waspy so to speak, they were kind of reflective of a New England republicanism that was liberal, but still had deep commitment to this country and reflected certain values that were very admirable, and that’s just gone.
That is just gone in elite law schools, in elite institutions across the board that there’s a new sheriff in town and it is the woke speech police and their vision for the constitution, the values they hold are just fundamentally incompatible with the values we’ve held as a country traditionally, and I think with the text and tradition underlying the Constitution.
Oran Smith:
Yes. Want to switch gears a little bit.
Daniel Suhr:
That was a good rant.
Oran Smith:
That was, I got you going and you’re loading up a little caffeine there I see.
Daniel Suhr:
Thank you.
Oran Smith:
Or is it tea time? Is it tea time?
Daniel Suhr:
It is. It is tea time. You can’t see this on the podcast but on the video you can see I’ve got my Nice America tea mug.
Oran Smith:
Yes. It’s not quite four o’clock. But I wanted to talk with you about the life that you and I have lived together as far as it relates to the legal issues related to education in South Carolina, particularly as it relates to no aid amendments.
I wrote a chapter once for a South Carolina government textbook, and the chapter was a very catchall chapter as you’ll hear very quickly here. And that is race, religion, and republicanism. So in this densely packed chapter, I went back to some of the early writings of South Carolina and traced some of those strands about religion and about race and how they go back so far.
One of the quotations, I think that sort of says it all from our constitution, or at least our colonial legislative preamble from 1697, you’re going to remember this very well and not in a pleasant way, but the South Carolina colonial legislature in 1697 passed an ordinance granting liberty of conscience to everyone in South Carolina, papists only accepted.
So everyone else had freedom of religion except papist only accepted. And then when South Carolina was adopting a constitution in the middle of the War of Independence in March of 1776, the Constitution listed some of the reasons for separation from England.
And one was that the king had protected the Roman Catholic religion in Quebec. So this was one of the charges against George III. So you go way back in South Carolina and you have all this anti-Catholic bias. So we fast-forward to the 1870s and President Ulysses S. Grant is giving a speech and he’s talking about sectarian schools and how it’s terrible that any kind of a religious school should receive any government support and that something needs to be done about this.
And his loyal Lieutenant, James G. Blaine of Maine as the Democratic campaign slogan went for everyone, you’ve got to know, I’m going to say this, James G. Blaine, James G. Blaine, the continental liar from the state of Maine. That was the Democrats campaign slogan for that year.
Well, Blaine was very ambitious, of course. So he gets this idea of putting an amendment in the federal constitution to– and this is where I hand it off to you– the Blaine amendment. It failed at the federal level. What was going on with that and what is its legacy?
Daniel Suhr:
Yeah. Thanks Oran. So thanks Dr. Smith, I should say in that particular diatribe.
Oran Smith:
In that context.
Daniel Suhr:
Yeah. So the Blaine Amendment, you’re right, failed at the national level, but then these so-called Baby Blaine amendments were adopted in 30 some states nationwide. And across the country, really from the east coast to the west coast, we saw this consistent practice of putting in state constitutions, a provision that barred public funds from going to sectarian schools.
And what it really meant was, as you suggest, Catholic schools. We didn’t want public taxpayer funds going to Catholic schools. And there was a reason for that. It was because the power structures of the day were Protestant, and there was an influx of immigration from countries like Ireland and Poland and Italy, places like Sicily that were overwhelmingly Catholic.
And as they were coming to these shores, the Catholic Church was welcoming in these immigrants. And there was a terrible nativist reaction on the part of many in the American public that we don’t want … that no Irish need apply signs in windows for jobs.
And so there’s this harsh nativist reaction and then also this thought specific to education, well, at least if they’re going to come here, we are going to force them to come to public schools where we are going to fix these kids. We don’t want them going to Catholic schools where they’re going to continue with their dangerous papist ideology.
Now that is not loyal to America. There was this myth out there that really persisted all the way through, think of the John F. Kennedy presidential run, this myth that persisted among the American people, that Catholic’s primary loyalty was to the Pope in Rome rather than to this country. And so there was this awful reaction.
We wrote it into law, and it lives with us still in that many of these state constitutions, including South Carolina, continue to include provisions that discriminate against private or faith-based, or independent non-public schools.
Oran Smith:
So into this comes Benjamin Ryan Tillman, the governor of South Carolina, who is elected to the United States Senate. But because he is sort of like the boss of South Carolina, he continues to sort of pull the strings in South Carolina while he’s at the US Senate. And he supervises the rewriting of the state constitution in 1895.
And this is where the racism and the religious bigotry just come together in the most disgusting, horrible fashion. Later in his life as a US Senator, on the floor of the United States Senate, he’s bragging about what they did in the 1895 Constitution. He refers to it as, he says, “We did not disenfranchise the Negros until 1895.”
And then he goes on to say, on the floor of the United States Senate, oh boy, “We of the South have never recognized the right of the Negro to govern the white man and we never will,” blah, blah, blah, blah. And the rest of it is, I just can’t even read it. I would probably have to bleep this out even though he said it on the floor of the United States Senate.
So this is the spirit that’s hovering over this constitutional convention. And you say, well, okay, everybody in South Carolina who knows very much about history, they know that the intention of the 1895 Constitution was a racist intention. That is just not shocking. But in some ways, oddly, there’s this anti-Catholic sentiment that starts to flow into the constitutional convention.
So the newspaper, the Gaffney Ledger, everybody on the podcast knows where Gaffney is, in the Gaffney Ledger of August the 20th, 1896, an author of a letter to the editor writes, “The Catholic Church is not purchasing thousands upon thousands of stacks of arms and storing them in their church’s convents and cathedrals just for fun. They’re not arranging and drilling a military body of 700,000 men for a pastime.
We are working for the spread of Christ’s kingdom by demanding that the Bible shall be read in public schools.” And he goes onto this order that they were a part of to fight Catholicism. Well, ultimately, these folks are very well organized and they are speaking into this convention saying, you’ve got to pass a baby Blaine in South Carolina. This part is not well known, is it? I mean, we know about the racism in the 1895 Constitution, but not the religious bigotry.
Daniel Suhr:
That’s right, Oran. So you have to ask, as a matter of history, we just said James G. Blaine was a Republican. Why would a Democrat like Ben Tillman be on board with the same policy? That doesn’t make sense. Republicans and Democrats don’t agree on things usually, right?
Oran Smith:
And sort of a northern, it was kind of perceived as Ulysses S. Grant, that’s what the Yankees are … That’s their obsession, not ours.
Daniel Suhr:
So in the north, right, you’ve got this influx of Catholic immigrants and they also became Democrats like, Tammany Hall. In the South, you don’t have nearly as many immigrants coming in and they’re not necessarily becoming Democrats. And so Tillman in South Carolina doesn’t have the same political base that you find in the North for Blaine.
So, there’s definitely an anti-Catholic sentiment among both Republicans and Democrats in the south, different from the north. But the other thing that’s going on, as you point out, is that the 1895 convention is concerned about disenfranchising African Americans, newly freed slaves, right? This is the post-reconstruction convention, newly freed slaves. We want to disenfranchise them.
One of the tools the convention adopts is a literacy test, right? We’re going to have a literacy test in order to vote, and then we can exclude African Americans from voting. Well, a literacy test is only good if you have newly freed slaves who can’t read. But if you have missionary and church-based educational institutions-
Oran Smith:
Instructed.
Daniel Suhr:
… instructing newly freed slaves and their children how to read, well, your literacy test isn’t going to be much good. They’re going to learn to read. They’re not going to be illiterate anymore. And so what we saw post-reconstruction was both Catholic and Protestant, especially Protestant churches in the North and partnering with churches in the south, setting up educational institutions to serve newly freed slaves, to teach them to read, to give them basic skills.
And often with public financial support from either the Federal Freedman’s Bureau or from the reconstruction governments. When those reconstruction governments ended, Ben Tillman and friends-
Oran Smith:
The US troops leave the state.
Daniel Suhr:
The US troops leave the South and Tillman and team are back in charge. They want to shut down those schools that are serving African-American newly freed slaves and their families. They want to shut down any competition with the public schools that are segregated, that they control and that are teaching their preferred curriculum.
And they want no competition for the government schools that are teaching what Tillman and company want. And so the way they do that is they put in the Constitution, not one more dime of public funds is going to go to these faith-based schools that are serving these Catholics and these newly freed slaves.
Oran Smith:
So 1895, that was a long time ago, 1895, it just goes on and on and on. And there was this original version of the South Carolina Blaine Amendment that just speaking of redundant, it says that you cannot support any institution that’s connected to a religious entity directly or indirectly, and whether it be a hospital, a college, a school, an orphan house, it’s like, is there anything else we can think of that the Catholic church might be involved in? We’ve got to list them all.
And then at one point it says, of whatever kind is wholly the totally under the direction of any church. So this is the old original article, article 11, section nine of the 1895 Constitution. So time goes by in the 1970s, the South Carolina Journal Assembly puts together a study committee and they start to work and they say, okay, we’re going to take out indirectly, but we’re going to add private.
So now it says, no state government funds can go directly to any religious or private institution. And that’s where it’s been since the middle of 1973 when the legislature enacted the amendment that the people approved. So when Covid hits, governor Henry McMaster says, a lot of the public schools are closed. We’re not sure when they’re going to open anytime soon.
But the private schools of many kinds, Catholic private schools, evangelical private schools, fundamentalist private schools, and just totally independent private schools, most of them are open. So Governor McMaster says, I’m going to offer some grants to some of the poorest kids who are not in school that would like to have an education.
They’re not only without schooling, they’re poor. So he creates this program called Safe Grants, and he uses the governor’s money that he had from the Covid funds, his funds that he had the discretion to use in any manner he saw fit related to education. And he gets slapped down with a lawsuit based on this 1895 provision and in writing on a great white horse to defend us is you, Daniel Suhr of the Liberty Justice Institute, Liberty Justice Center. Just can’t thank you enough.
Daniel Suhr:
Speaking of institutes, let’s give a huge shout-out to Palmetto and Ellen and you, Oran, because there was only a program for us to defend because of the policy case that PPI has been making for years on behalf of educational options for South Carolina’s kids. And when the moment was right and there was a pot of money available that the governor could use, very, very flexibly, very broadly, you and Ellen and PPI got in there and successfully convinced the governor, don’t give it to that black hole of just throwing it down more in public education.
Let’s target it to help these low-income kids and these great schools that are actually open serving these kids. So you guys deserve a huge amount of credit for even making this program possible. It would not have existed. There would’ve been no lawsuit to defend but for Ellen and you and the PPI team.
Oran Smith:
Well, thank you. And we’ve enjoyed working with the governor on that and of course working with you as well. But with the word indirect removed, a rhetorical question, why is this still a problem? And this was Adams v McMaster. Adams was a teacher in a public school in Orangeburg County.
So she was Adams vs. McMaster, the governor who had set up the Safe Grants program. This eventually gets to the South Carolina Supreme Court and they issue a ruling. There are some complaints that maybe they missed some things. So there’s a revised ruling and they find it unconstitutional. On what basis?
Daniel Suhr:
They missed the big thing, Oran, which was the text in history of South Carolina’s Constitution. As people in South Carolina, I would be disappointed with your state Supreme Court on this one. Now maybe they get other ones, but maybe they don’t. This one they got wrong. There’s no two ways about it.
So you’ve already pointed out, Oran the text here. So two quick points. First, this is not only affecting these private K-12 schools we’ve been talking about, it also affected historically black colleges and universities in South Carolina. So the governor did two things initially with this Covid relief fund.
One was the Safe program that we’ve been talking about. The other thing he did was create a specific program for historically black colleges and universities, which didn’t have all of the fancy IT infrastructure that the public universities all had or the well-off private universities. These were small struggle in places. They didn’t have the IT infrastructure. So that was the other grant.
And because they are also private, non-governmental schools in most cases, South Carolina HBCUs also had their dollars on the line. So the case goes to South Carolina Supreme Court and listeners to this podcast know, I think– tuition grants, for instance, have been around for a very long time in South Carolina, and they provide the money to the student who then can choose to use it at a private, nonprofit, independent faith-based institution.
There are a couple other programs, one for instance, that helps preschool students where you can redeem a publicly supported voucher at a nonprofit, private religious preschool. So there are other programs like this across state government, but somehow this one was different than all of that well-established body of law upholding programs like that.
And the South Carolina Supreme Court said in contravention of the US Supreme Court’s reading, in contravention of numerous other state supreme courts, that the beneficiary of a publicly supported scholarship is not the student, but the school that serves the student, which it’s the defiance of law, It’s the defiance of common sense.
Oran Smith:
So the scholarships that go to support students at Furman University, North Greenville, Anderson, Walford, all the private institutions, that’s not aid to the universities. But a safe grant was aid to an institution. And the First Steps program, which is for pre-kindergarten kids to go to private pre-kindergarten programs, that’s okay.
It’s like we’ve got this sandwich that whatever’s in the middle, it’s okay for colleges and it’s okay. There’s nothing I can see in the Constitution or in any statute that creates a particular status for a K through 12 student that’s different than an older student or a younger student.
Daniel Suhr:
No, there’s nothing there, Oran. And it defies law. It defies common sense. None of us would say if you had somebody on food stamps, if you take your food stamps to Aldi, you don’t say that the primary beneficiary of that food stamp is Aldi, right?
The person who gets the food is the beneficiary of that food stamp. If you are on Medicaid and you go to a hospital, we don’t say the primary beneficiary of those Medicaid dollars is the hospital that gives you the surgery you need. It’s the person who gets healthy again.
But somehow, in this instance, if you’re the student who’s low income, who gets a scholarship, the South Carolina Supreme Court says, oh, it’s the school that’s the direct beneficiary, not the student who’s getting the education. That’s not how the US Supreme Court has read it. That’s not how numerous other state Supreme Courts have read it. But South Carolina Supreme Court decided somehow this one’s different and we’re going to strike down this program. Total shame.
Oran Smith:
Well, maybe they saw it in the Penumbra. What was the famous US Supreme Court case?
Daniel Suhr:
The emanations from the penumbras, yeah.
Oran Smith:
It was emanations from the Penumbra, not the sun or the planet itself, but emanations from the penumbra. Well, just in the few minutes we have left, I wanted to ask you to explain the second front that has been opened up to try to fight back upon this religious bigotry that’s a part of the Blaine Amendment.
We thought at least a federal court that had read Trinity Lutheran versus Comer 2017, Espinoza v Montana Department of Revenue 2020, and they’ve had another one to read since then, Carson versus Macon, I mean, we’ve just gotten a parade of cases here that build upon each other that are just saying the US Supreme Court is done with these Blaine Amendments. Tell us a little bit about what you’re doing in federal court to fight the Blaine Amendments.
Daniel Suhr:
Yeah, thanks Oran and Amen. The US Supreme Court is done with this, and they should be because these are an atrocious reflection on our country’s past, and they are unconstitutional, and they should be excised out of these constitutions.
So South Carolina’s Blain Amendment became the subject of a federal lawsuit several years ago, thanks to the Catholic Diocese of Charleston and South Carolina Independent colleges and universities, which were the two groups that were denied among the groups, denied access to these Covid relief funds.
And our argument is pretty simple. So South Carolina’s Blain Amendment, as it stands today, essentially says, no public funds for private schools. If it had simply said no public funds for religious schools, it would clearly violate the cases you just mentioned, Trinity Lutheran, Espinoza, Carson. There would be a clear violation for targeting religion on its face.
But it doesn’t say that. It says no public funds for private schools. Now, we know from the history that is just a coincidence. That is a tweak of literary style, but the substance, the intention was that this was going to target Catholics and missionary schools serving newly freed slaves.
And so within the law, sometimes lawmakers are sneaky, including racist lawmakers or bigoted lawmakers, and so they write things that are neutral on their face, but clearly their intention, clearly their goal, clearly their motive is reflective of bigotry. And so our case-
Oran Smith:
Look at my law that I just filed. I don’t see anything here about black or Catholic. What are you trying to say? The plain words indicate, I’m not bigoted, but we know the effect.
Daniel Suhr:
We know the effect and we know the history. And let’s be clear, the left uses this legal theory all the time. You pass a law that says we’ll have voter ID at the polling place, nothing about race, nothing about religion, just everybody has to have photo ID. The NAACP and all the other groups come rushing into court saying, well, it’s facially neutral, but let’s be real, this is about targeting black people-
Daniel Suhr:
Thank you, Oran. Courts will side with them on lawsuits like that. So all we’re saying is fair is fair. If you’re going to pass a law in history that targets Catholics or that targets missionaries serving newly freed slaves, that deserves the same scrutiny from courts as something the left is doing suing against voter ID.
So we are pointing back to that history and we are asking federal courts to finally step in and right the wrong that has been in South Carolina’s constitution for over a century reflecting this biased racist and religiously bigoted Blaine Amendment.
Oran Smith:
So your progress is at this point you’ve moved on from the district court of South Carolina Federal to Richmond to the Fourth Circuit, right?
Daniel Suhr:
Yeah. So we just had an oral argument in Richmond about two weeks ago. So this is a very timely podcast to be doing together because we got in and had our day in court again to make the case to the Fourth Circuit, which sort of covers all the mid-Atlantic states from Maryland down to South Carolina, to make the case that the history here is clear and that it is more than time to fix this historical wrong that has been left in the South Carolina constitution and allow religious and independent schools the same fair treatment that they should be getting as anybody else. There’s no reason to deny faith-based schools access to these kinds of emergency Covid funds.
Oran Smith:
So if for some reason they don’t understand reason, they don’t yield to reason, and the Fourth Circuit doesn’t go the way we would like it, I assume the next is to ask the US Supreme Court to take the case or?
Daniel Suhr:
Yeah, that would be the next step is to ask the Supreme Court to take the case. Obviously, I’m just hoping we win at the Fourth Circuit. That would be great. And then the ball will be in the other side’s court to decide what to do next. But your suggestion from earlier is the right one, Oran, which is that the US Supreme Court has been very skeptical of these Blaine amendments that in the Espinoza case you mentioned, Justice Alito has a very strong concurring opinion where he lays out all of this historical material we’ve been talking about for the country, goes through the Blaine era and why these amendments were adopted. In many ways, I think our case is essentially taking Alito’s concurrence and turning it into a case of its own.
Oran Smith:
Except it didn’t include a cartoon. I think Alito had a cartoon from maybe Harper’s Weekly with Catholicism was like an alligator or something?
Daniel Suhr:
Funny you mention, so there’s that cartoon. Thomas Nast was the name of the cartoon.
Oran Smith:
Thomas Nast who created the donkey and the elephant.
Daniel Suhr:
Also True. So there’s another cartoon of priests in schools standing between a public school and a private school and a Palmetto tree in the picture.
Oran Smith:
Oh boy.
Daniel Suhr:
Again, just suggesting the south was not exempt, it started in maybe Blaine and Maine and the North, but the South was not exempt from the anti-Catholic bigotry that was really sweeping the country as a whole, including places like South Carolina.
Oran Smith:
That’s an awful Petri dish when you mix in the religious bigotry and you may have a religious conviction against Roman Catholic beliefs, but that’s not what was going on here. This was a political issue. And you mix that in with the racist history all together, you just, that’s a bad witches brew that Alito has said we need to stop drinking from.
Daniel Suhr:
There have been, and obviously people in South Carolina know this better than other parts of the country, there are ugly and sad chapters of our history as a country, as a people, and the best way to transcend those moments and give our current day and our future and our kids the best shot at a life free from that history is to confront it, to deal with it, to be honest and open about it, not to run from it.
And that is just as true of this anti-Catholic bigotry as it is of racism and some of the other ugly chapters in our country’s history.
Oran Smith:
Well, thankfully, these different types of independent, as we call them in our state law, independent schools, these different types, we have four or five different types, they are wide open now for any person– the religious and racial animus is gone.
They have turned the page, they are now out seeking diversity in their schools and it’s just really wonderful to watch. And I hope they get a chance with the passage of a bill in South Carolina and a bill that’s tightly tailored to avoid these Blaine problems or for the Blaine Amendment to go away and the baby Blaines to go away.
And then we have a real opening of choice for every parent no matter what their income level, their race, their color, their religion. We sure appreciate your time.
Daniel Suhr:
I am so hopeful for the work you guys in Palmetto are doing on ESAs, what we policy folks call ESAs, Education Savings Accounts or Empowerment Scholarship Accounts. We’ve come so close. Obviously I’m excited for the leadership of superintendent Ellen Weaver, who has been a champion for children to see finally a real robust ESA program, not one that’s time limited, like the Governor’s Safe Program would’ve been, not one that’s using one-time federal funds, but is a permanent commitment on the part of South Carolina to support low-income families in access to great educational options.
That day is coming, it should be here already. Hopefully it will be here soon. I don’t doubt there will be a lawsuit over it because the defenders of the education status quo are not going quietly into the night. They are dug in. And so I wouldn’t be surprised if we’re back at the South Carolina Supreme Court a year from now trying to save, again, educational options for South Carolina’s kids.
Oran Smith:
Well, you’ve come back and fought again in Tennessee and in other places where the litigation just kept going on. West Virginia has continued to be … So thank you for all you do and it’s been a pleasure to work with you here in some issues in South Carolina and to actually begin to tell some stories about some things that occurred in our history and that we can learn from and learn and turn from to create a brighter South Carolina future for real people that’s just trying to take care of their kids and educate their kids.
So thank you so much for your time today and look forward to seeing you again in South Carolina. You too. Thank you.
