podcastED: SUFS president Doug Tuthill interviews education choice icon Stephen Sugarman: Part 3

Berkeley Law giant Stephen Sugarman, an icon of the education choice movement, speaks about constitutional and regulatory frameworks at a Resnick Program and Harvard Law Lab’s conference in October 2016.

In the last of a three-part podcast series, Tuthill and Berkeley law professor Sugarman discuss the landmark Espinoza v. Montana Department of Revenue Supreme Court decision.

The June 2020 decision made it clear that a state cannot exclude religious schools from receiving funding from a program created by the state to fund private education. Chief Justice John Roberts clearly echoed Sugarman’s writing in the 5-4 decision.

In Sugarman’s analysis, there is a fundamental disagreement between the judges as to how the Court will continue to resolve the tension between the Free Exercise and Establishment clauses of the Constitution.

Montana lawyers relied on (their interpretation of) the Blaine Amendment. They said, “not only do we not want to help these Catholic schools, we cannot. … and the Supreme Court said no; the Free Exercise Clause trumps … the Blaine Amendment.”


·       The history behind anti-Catholic sentiment after the Civil War that fueled the adoption of “Blaine Amendments” all over the country

·       How Chief Justice Roberts’ decision in Espinoza echoed Sugarman’s argument for allowing faith-based organizations to operate charter schools

·       Justices Breyer, Thomas and Alito’s writings in the Espinoza decision and the tension among different opinions

·       How America differs from other modern countries that fund K-12-aged religious schools if they meet regulations

·       Charles Glenn’s research suggesting that allowing families to educate their children in schools that reflect their religious faith strengthens the cohesion of democracy


Sugarman – Is it Unconstitutional to Prohibit Faith-Based Schools from Becoming Charter Schools?

Notable SCOTUS education choice decisions – Locke v. Davey

Notable SCOTUS education choice decisions -Trinity Lutheran v. Comer

 Listen to Part 1 of Tuthill’s conversation with Sugarman here.

Listen to Part 2 of Tuthill’s conversation with Sugarman here.


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BY reimaginED staff