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- [00:00]
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- [01:01]
Howie Mandel
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Isaac Saul
From executive producer Isaac Saul. This is Tangle.
- [02:20]
Good morning, good afternoon and good evening and welcome to the Tangle Podcast, a place we get views from across the political spectrum, some independent thinking and a little bit of my take. I'm your host Isaac All. Today is Wednesday, May 28th. We are covering a recent Supreme Court ruling on religious charter schools is the Oklahoma Statewide Charter School Board v. Drummond. Very interesting case. One with some pretty big implications for the separation of church and state. We're going to break down exactly what happened, which was a pretty rare 44 split ruling with Amy Coney Barrett recusing herself and and then I'm going to share my take. I also want to give you a heads up that on Friday we are going to be releasing a piece from me that has been quite difficult to write. I've been kind of referencing it and talking about it for a long time. It's kind of my personal story of how I came to be a Zionist and why the conflict in Israel is making me struggle with calling myself one today. I've had a hard time processing and getting this piece down, but I think it's in a place where it's basically ready to share. So I'm excited to do that.
- [03:33]
John Law
All right.
- [03:33]
Isaac Saul
With that, I'm going to send it over to John for today's main story and I'll be back for my take.
- [03:44]
John Law
Thanks, Isaac, and welcome everybody. Here are your quick hits for today. First up, a federal judge struck down President Donald Trump's executive order against the law firm Wilmer Hale for infringing on the constitutional freedoms of an independent judiciary. Separately, the Trump administration asked the Supreme Court to allow expedited deportations of migrants to countries other than their own. The request follows a federal judge's order that migrants must be allowed a meaningful opportunity to object their deportation. Number two, Israeli Prime Minister Benjamin Netanyahu confirmed that Mohammed Sinwar, the leader of Hamas in the Gaza Strip, was killed in an airstrike last week. Number three, the Trump administration reportedly ordered United States embassies and consular sections to pause new scheduling interviews for student visa visa applicants as it weighs a policy to require all foreign students applying to study in the US to undergo social media vetting. Number four, National Public Radio sued the Trump administration over its executive order ending public broadcasting funding. And number five, Health Secretary Robert F. Kennedy Jr. Announced the U.S. centers for Disease Control and Prevention will no longer recommend the COVID 19 vaccine for pregnant women and healthy children Coming on the air because the Supreme Court has just released a.
- [05:08]
Isaac Saul
Major decision concerning government funding of religious charter schools. The ruling could reshape how taxpayer money is now used to fund education across.
- [05:18]
John Law
The US On Thursday, the Supreme Court blocked a religious online charter school from obtaining public funding from the state of Oklahoma. In a 4, 4 decision that Justice Amy Coney Barrett recused herself from, the court affirmed The Oklahoma Supreme Court's ruling that prevented St. Isidore of Seville, a Catholic online only charter school in Oklahoma City, from receiving public funds. The court did not disclose how the justices voted in the case only releasing a one sentence opinion. The judgment is affirmed by an equally divided court. For context, in 2023, the Archdiocese of Oklahoma City and the Diocese of Tulsa founded Saint Isidore of Sevill Catholic Virtual School. The school takes its name from the patron saint of the Internet and teaches a Catholic curriculum for grades K 12. Oklahoma's charter school board approved St. Isidore's application for public funding in 2023, but Oklahoma Attorney General Ganttner Drummond challenged the approval, arguing it would provide precedent for Muslim schools to receive funding and destabilize the national charter school system. The Oklahoma Supreme Court sided with Drummond, finding that publicly funding an explicitly religious school violates the state's constitution. The state charter board petitioned the case to the Supreme Court in October 2024, and the court agreed to hear Oklahoma statewide Charter School Board versus Drummond in January. If the Supreme Court had sided with the board, St. Isidore would have been the first publicly funded religious charter school in the country. Instead, the deadlock decision does not set precedent one way or the other. It only affirms the Oklahoma Supreme Court's decision to not publicly fund religious charter schools within the state. Justice Barrett did not state why she recused herself. As is typical for Supreme Court justices, however, she is close friends with an attorney who provided counsel to Saint Isidore, and the school had been advised by a religious liberty clinic at Notre Dame's law school where Barrett taught. Many court watchers expected the Supreme Court to rule in favor of the charter board, as the court had ruled in favor of religious schools receiving public funding in three separate instances in the last decade a 2017 case allowing a church preschool to access Missouri state funds to resurface its playground a 2020 case permitting religious schools to participate in a Montana tax credit program and a 2022 case affirming Maine students could use vouchers at religious institutions. However, during oral arguments on April 30, Chief Justice John Roberts differentiated those cases by saying the prior three involved fairly discreet state involvement, while Drummond provided much more comprehensive involvement. Proponents of religious charter schools were optimistic they could succeed with a different challenge. While the Supreme Court's order is disappointing for educational freedom, the 44 decision does not set precedent allowing the court to revisit the issue in the future. James A. Campbell, a lawyer with the conservative group Alliance Defending Freedom, said, today, we'll dive into what the left and the right are saying about Drummond and then Isaac's Take Foreign.
- [08:26]
Isaac Saul
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- [09:32]
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John Law
All right, first, let's start with some agreement. Commentators on both sides say the decision is somewhat surprising given the Court's past rulings on related issues. However, many also suggest that the Court is likely to rule for religious charter schools if it hears a similar case with a full bench in the future. Alright, let's go to what the Left is saying. The left is pleasantly surprised by the decision, though many caution that the broader issue raised by the case is not resolved. Some suggest that religious charter schools will soon bring another challenge to the Court. Others argue that allowing public funding for religious schools would harm all parties involved. In Slate, Mark Joseph Stern wrote, separation of church and State scored a surprise reprieve at the Supreme Court. At oral arguments in April, it was clear that at least four conservative justices believed that St. Isidore had a right under the First Amendment's free exercise clause to secure public funding. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh sounded convinced that the exclusion of religious schools from the charter system amounted to an unconstitutional discrimination against religion, Stern said. But Chief Justice John Roberts sounded a tad wobbly during arguments asking a handful of questions that indicated discomfort with the breath of St. Isidore's constitutional claims. It now appears that Roberts did indeed defect from the conservative bloc siding with the three liberals. The big question now is whether Bear will share his hesitation in the future when the next religious charter comes before the court. The network of Christian lawyers who manufactured this case will have little trouble persuading another state to adopt their experiment and can surely avoid involvement by any of Barrett's friends next time, stern wrote. For the time being, however, Thursday's decision is as big a victory as anyone can expect from this court for the separation of church and state. The conservative majority has been marching ineluctably toward a future in which there is no barrier between the government and religion, where in fact the Constitution requires the constant intermingling of the two. In Vox, Ian Millhiser called the decision a rare setback for the religious right at oral arguments in Oklahoma. This case appeared likely to be the latest in a series of Supreme Court decisions mandating government funding for religious education, most notably in Carson vs. Macon in 2022, the court held that states that offer private school tuition vouchers must allow those vouchers to be used to pay tuition at religious schools, Millhiser said. The court held that states that offer private school tuition vouchers must allow those vouchers to be used to pay for tuition at religious schools, Millhiser said. Though Thursday's non decision in Oklahoma means that this long standing regime guaranteeing public schools remain secular institutions is still in effect, it is far from clear whether this regime will last. While Carson held that states that fund private education must include religious schools in that funding, charter schools are considered public under both Oklahoma and federal law. Both federal law and the laws of the 46 states also require charter schools to be non religious, millhiser wrote. However, it is likely that proponents of religious charter schools will simply try again to create such a school, this time without doing so in a way that causes Barrett to recuse. If Barrett is present for those future arguments and applies similar reasoning to the decision she joined in Carson, she could easily be the fifth vote for religious charter schools. In US News and World Report, Eli Fetterman argued religious charter schools undermine religious freedom. Supporters of the Oklahoma School St. Isidore of Seville Catholic Virtual School, mistakenly think religious charter schools would be a win for faith. But in truth. Turning Sunday schools into public schools risks endangering religious freedom itself. Those with religious beliefs who want to educate their children in ways inconsistent with state requirements could be harmed the most, Fetterman said. The First Amendment's Establishment clause protects religious institutions by limiting the government's involvement in and control over religious education. If faith groups begin running state funded charter schools, they invite government oversight and risk losing the independence that allows them to stay true to their mission and values. This ongoing battle reveals why the Supreme Court's decision matters. If religious schools enter the public charter system, they will face even more direct state pressure to conform to secular standards. And once a charter school is established with public funds, disentangling it from state oversight to return to private support can disrupt the lives of students, teachers and communities that rely on those schools, federman wrote. Meanwhile, under most state regulations, not all charter schools get approved. Public authorities deciding whether religious schools qualify risks unconstitutional government preference for one religion over others. Alright, that is it for what the left is saying. Which brings us to what the right is saying. Many on the right are frustrated by the outcome, but say it's only a temporary setback. Some suggest the court will rule for religious charter schools the next opportunity it gets. Others criticize Justice Barrett for her decision to recuse herself, the Wall Street Journal editorial board wrote. A religious charter school falls short at the Supreme Court the Supreme Court's big religious liberty case ended with a whimper Thursday and and what a pity. A ruling in favor of Saint Isidore, a proposed Catholic charter school in Oklahoma, could have bolstered religious freedom and educational opportunities. Instead, the court split 4 4, the board said. How did the Roberts Court's remarkable run on religious liberty end here? The deadlock was possible because Justice Amy Coney Barrett recused herself from the Oklahoma statewide charter School board versus Drummond. She didn't explain why, as is common practice at the Court. Yet Justice Barrett's absence and the anticlimactic outcome underscore the price of recusal for parties to a case. As Justice Antonin Scalia once pointed out, a party appealing to the Supreme Court needs five votes to overturn the ruling below, meaning a recusal is effectively the same as a vote to affirm the boardroom. The lack of a decision means that the faithful in Oklahoma will be denied an opportunity to attend Saint Isidore. But it isn't the end of the road for free exercise of religion and school choice in an education landscape that's rapidly changing. Similar cases could arise in other states, and legislatures now have a window to adjust their charter laws to be more or less like Oklahoma's. In the National Catholic Register, Andrea M. Pachati Bear said it's only a matter of time before the Court hears a similar case. Four of the Court's originalists, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh, appeared to support St. Isidore's certification as a charter school. They appreciated that because charter schools are privately created and privately controlled, they are not the government and nor are they engaged in state action. They also appreciate that excluding religious schools like St. Isidore's from participating in the state's charter school program is a form of religious discrimination. It's likely that Justice Barrett would agree, pachati Berat wrote. By contrast, the Court's three progressives, Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, were more than satisfied with excluding St. Isidore's. If Roberts did vote against St. Isidore's request for fair treatment, that is a great disappointment, particularly because he was the author of two recent school choice cases in which the Court held that excluding religious schools was deemed unconstitutional. Pachati Bear said it's only a matter of time before a case questioning the constitutionality of excluding religious schools from charter school programs is before the high Court once again. When that time comes, let's hope that Justice Barrett is on the bench and Chief Justice Roberts allows fairness and religious freedom to win the day. In National Review, Carrie Campbell Severino explored the consequences of unnecessary recusals. The reasons for Barrett's recusal are not certain, but are presumed to stem from her friendship with Professor Nicole Garnett at Notre Dame Law School. Garnett has been supportive of St. Isidore but is neither a counsel nor a party in the case. Interestingly enough, in Carson vs. Macon in 2022, a case dealing with similar issues, she signed an amicus brief and there were no recusals, nor should there have been, severino wrote. Even if she were an advocate in Oklahoma Statewide Charter School Board v. Drummond, it should not have made a difference. Recusal because a friend has some connection to the case but is not a party has never been the practice. An enormous amount of time, money and effort were spent on this case, only to have it end without resolution. No clarity has been provided for other states or for that matter, Oklahoma itself. The school is being deprived of its constitutional rights and cannot now vindicate them in court. Going beyond her duty to recuse herself could have pernicious long term consequences if other justices were to do the same, severino wrote. As the Court itself has noted in its code of conduct, the absence of one justice risks the affirmance of a lower court decision by an evenly divided court, potentially preventing the Court from providing a uniform national rule of decision on an important case. Alright, let's head over to Isaac for his take.
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Isaac Saul
All right, that is it for the left and the right of saying, which brings us to my take. So at first blush, this feels like one of the most significant recusals by a Supreme Court justice in recent memory. Liberal commentators were ready to cede a loss on this case and for the separation of church and state to take a major blow. Instead, they got a surprise victory. That win was narrow, applying just to Oklahoma, and may be short lived as a new similar challenge will almost certainly pop up. But at the very least it means a similar future case will be no slam dunk, and we know that whoever brings it will need to win over Amy Coney Barrett for this case. As with most Court cases, it's useful to apply my two part analysis, a view on the legal arguments and my perspective on the practical outcome of the ruling on the legal merits of the case. I'll say up front that I thought the Oklahoma Supreme Court was right to invalidate St Isidore's contract with the state. Oklahoma law requires charter schools to be non religious. St. Isidore was seeking a public school structure and government funding to teach an explicitly Catholic curriculum, which students were going to be mandated to participate in. The state Supreme Court ruled that the school was going to provide public education as a surrogate of the state, which means it would have been a public entity that did not have any right to the free exercise of religion. This all makes plain sense to me, but of course it's not quite so straightforward or it wouldn't be before the Supreme Court. Representatives for St. Isidore argue that charter schools are not state actors. Instead, they are privately operated schools that are given government contracts to provide publicly funded education. That view does have some precedent to support it, and the Justices on the Supreme Court have been very friendly to groups arguing that religious institutions are entitled to the same educational funds that are available to to secular recipients. The school also argued that none of the factors the Court normally considers to determine if a private entity is a state actor, such as being intertwined with a government or performing an exclusively public function, are satisfied here. After reading the details of these arguments, my overwhelming feeling is that St. Isidore is trying to blur the lines on public and private education, trying to have their cake and eat it too. They want government funding, but they also want to be able to teach whatever they want and how they want in the most straightforward sense. I find this unacceptable. If my tax dollars are going to fund your institution, then I should get a say in how it runs. My money goes to public schools and I get to vote for people who implement educational programming or join the school board. My money goes to the military and I get to vote for the president who will choose its leaders. My money goes to a charter school and they get to teach whatever religion they want without any input from me. I don't think that's right. Even, perhaps especially as a person of faith, I want church and state to remain separate. I find its value to the government and the public obvious. But the principle also helps religious institutions too. Roger Williams, the founder of Rhode island, who is widely considered the first proponent of this separation, understood its value from the beginning. As far back as 1644, he was arguing that mixing church and state corrupts the church, and when you mixed religion and politics, you always got politics. I believe these arguments have stood the test of time. Specific to the case at hand, Eli Fetterman, under what the left is saying, summed it up better than I could. He said the First Amendment's establishment clause protects religious institutions by limiting the government's involvement in and control over religious education. If faith groups begin running state funded charter schools, they invite government oversight and risk losing the independence that allows them to stay true to their mission and values. As for the practical impact, well, I think it will be small and temporary. I suspect that given the makeup of this court and the way they have ruled in similar cases, another state will bring a similar challenge and probably prevail with Justice Barrett's vote. But again, if that does happen, it will be a mistake. It will be bad for the charter schools and religious institutions in the long term to subject themselves to government oversight of this kind. And it will be unfair to the taxpayers who should not be forced to to fund schools and institutions that are teaching religious doctrine. So for now, I'm happy to see Barrett's recusal led to Oklahoma winning this case, but I'm apprehensive about how narrow and temporary that victory really is. We'll be right back after this quick break.
- [24:16]
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- [25:29]
All right, that is it for my take, which brings us to your questions answered. This one is from Lark in Iowa City, Iowa who said, I would like to read your thoughts on how name, image and likeness NIL is or will impact athletics. Current money allocations largely go to males and intertwining of the Reallocation elimination of Education Department with its role in Title 9 President Trump's policies and his ruling on NIL money not under Title nine. Okay, so complex question. The way that NIL impacts college athletics in and of itself is complicated and it's going to produce a variety of different opinions. So when you add in the potential of the government changing the program, it gets vastly more complicated. But to back up here for a moment, NIL deals with how college athletes are profiting off their name, image and likeness without being paid directly by colleges. Proponents see it as a way to compensate athletes who otherwise wouldn't receive any money from the revenue they generate for their universities, conferences and the National Collegiate Athletic association or ncaa. Opponents of NIL say that it threatens the very nature of the student athlete relationship, benefits the top tier programs that can allow the athlete to make more money and potentially creates a title issue by generating greater revenue for male athletes. President Trump is attempting to shutter the Department of Education, which enforces Title ix, and proposed a commission to reform NIL deals at the ncaa. Trump seems generally opposed to nil deals. However, that commission has been paused as Senator Ted Cruz, the Republican from Texas, works on passing legislation to regulate the practice. Cruz is generally in favor. I'll be straightforward that our staff has a variety of different opinions on nil, but we all generally agree that athletes receive some kind of compensation for creating an industry that profits immensely off their skills. We also agree that NIL has paved the way for unethical recruiting practices and weakened intercollegiate competition. As for what happens next, it seems like the changes the government is considering are still pretty speculative. Reading the tea leaves, the most likely change is the one that's already occurring. Less power for the NCAA and individual schools and more power for conferences. All right, that is it for your questions answered. I'm going to send it back to John for the rest of today's podcast and I'll see you guys tomorrow. Have a good one. Peace.
- [27:57]
John Law
Thanks, Isaac. Here's your under the Radar story for today, folks. After multiple years of enlistment shortfalls, the US military spent more than $6 billion over the past three years to recruit and retain service members. In particular, the Army, Navy, Air Force and Marines have rolled out new programs and increased the number of recruiters while creating new financial incentives for soldiers to stay in the armed forces. The Navy, which has had some of the largest enlistment and retention gaps, outspent all other branches and placed an emphasis on filling its at sea jobs. The investments appear to have been successful as all branches, but the Navy met their recruitment targets last year and are all expected to do so this year. The Associated Press has this story and there's a link in today's episode Description alright, next up is our numbers section. The percentage of appeals heard by the Supreme Court since 2018 in which a justice recused themselves is 3%, according to a 2023 Bloomberg Law analysis. The number of times a Supreme Court justice recused themselves, either when deciding whether or not to hear a case or during rulings in the Court's term ending in June 2016 was 180, according to Fix the Court. The number of cases in which Justice Elena Kagan recused herself during that term, most often due to her previous work as solicitor general, was 98. The number of cases in which Justice Samuel Alito recused himself during that term, most often due to stock ownership, was 31. The total number of Catholic elementary and secondary schools in the United states in the 2000-2001 school year was 8,146. The total number of Catholic elementary school and secondary schools in the United states in the 2022-2023 school year was 5,920. The percentage of K12 private school students who attended a religiously affiliated school in the 2021-2022 school year was 77%, according to Pew Research. Charter school enrollment as a percentage of total U.S. student enrollment in the 2021-2022 school year was 7%. And the percentage of Americans who said the U.S. government should and should not enforce the separation of church and state, respectively, is 54% and 19%, according to a 2021 Pew Research survey. And last but not least, our have a nice day story. Rose Torger was appalled to learn that when a company moves out of a tenant space, the furniture often ends up in a landfill. In response, she founded an organization called Anew with the goal of extending office furniture life. Anew works to repurpose, resell and recycle corporate surplus furniture that otherwise would have gone to waste by finding charities, non profits and public agencies in need. ANU says it has worked with over 2,000 recipient organizations in 20 countries and saved 8,000 tons of what would be waste in the past 10 years. Good news Network has this story and there's a link in today's episode description alright everybody, that is it for today's episode. As always, if you'd like to support our work, Please go to retangle.com where you can sign up for a newsletter membership, podcast membership or a bundled membership that gets you a discount on both. We'll be right back here tomorrow. For Isaac and the rest of the crew, this is John Law signing off. Have a great day y' all. Peace.
- [31:24]
Isaac Saul
Our Executive Editor and founder is me, Isaac Saul and our Executive Producer is John Lowell. Today's episode was edited and engineered by Dewey Thomas. Our editorial staff is led by Managing Editor Ari Weitzman with Senior Editor Will Kbach and Associate Editors Hunter Casperson, Audrey Moorhead, Bailey, Saul, Lindsey Knuth and Kendall White. Music for the podcast was produced by Diet75. To learn more about TAN. Want to sign up for a membership? Please visit our website@retangle.com.
- [32:02]
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- [32:32]
Advertiser 1
This podcast and the following message is brought to you by E Trade from Morgan Stanley. With E Trade you can dive into the market with easy to use tools, $0 commissions and a wide range of investments, and now there's even more to love. Get access to industry leading research and insights from Morgan Stanley to help guide your decisions. Open an account and get up to $1,000 or more with a qualifying deposit. Get started today@etrade.com terms and other fees apply. Investing involves risks Morgan Stanley Smith Barney LLC Member SIPIC E Trade is a business of Morgan Stanley. Want a workout that actually works? Hydro delivers a full body workout that hits 86% of your muscles in just 20 minutes. Rowing with Hydro combines strength and cardio with thousands of workouts led by Olympians in breathtaking locations. No wonder nine out of ten members are still active one year later. Try Hydro risk free@hydro.com and use code RO to save up to $475 off your Hydro Pro rower. That's H Y-R-O-W.com code row.