Education

AG Hunter’s school-choice defense draws national praise

September 16, 2020

Ray Carter

Oklahoma Attorney General Mike Hunter has been honored by his peers for his office’s defense of school-choice programs that empower parents.

The National Association of Attorneys General (NAAG) has awarded its 2020 U.S. Supreme Court Best Brief Award to Hunter’s Solicitor General Unit for a brief defending the constitutionality of tax-credit scholarship programs that allow students to attend the private school of their choice.

The annual award honors state attorneys, who collectively handle more U.S. Supreme Court cases than almost anyone else in the legal community. The winners were selected by a panel of independent U.S. Supreme Court experts who are experienced Supreme Court practitioners.

“This team is very deserving of this award,” Hunter said. “The attorneys and support staff in the Solicitor General’s Unit work long hours on some of the most complex legal cases facing our state, while also defending state laws and upholding the Constitution. This award is a testament to their hard work and dedication on behalf of the state of Oklahoma. I am proud and very fortunate to have Solicitor General Mithun Mansinghani and his talented team working for this office.”

Hunter filed a brief in the Espinoza v. Montana Department of Revenue case asking the U.S. Supreme Court to reverse a Montana Supreme Court decision that held Montana’s school-choice scholarship program had to be eliminated because it allowed parents and their children the option of using scholarships at private religious schools.

“Prohibitions on uses of state funds do not prohibit individuals’ use of tax credits, nor do prohibitions on aiding religious schools prohibit aid to religious students,” the brief stated. “Nine states have found no conflict between their state Blaine Amendments and tax-credit scholarships.”

“Blaine Amendments” are state constitutional provisions that bar taxpayer support of churches and/or religions.

The Oklahoma brief also stated, “A law violates the First Amendment not only when it directly restricts a religious practice, but also when it denies a public benefit because of religious affiliation.”

In June, the U.S. Supreme Court ruled in favor of school choice and religious liberty and cited the attorney general’s brief in doing so. It was the only amicus brief—out of nearly 45—that the Supreme Court explicitly relied upon in its landmark decision.

The U.S. Supreme court opinion noted the court had “long recognized the rights of parents to direct ‘the religious upbringing’ of their children” and that many parents “exercise that right by sending their children to religious schools, a choice protected by the Constitution.”

The court majority found Montana’s no-aid provision “penalizes that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason.”

“We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs,” the U.S. Supreme Court majority opinion stated.

The authors on the brief for Oklahoma were Solicitor General Mithun Mansinghani and Assistant Solicitors General Zach West and Bryan Cleveland. The brief was co-authored by attorneys in the Georgia and Arizona attorneys general offices. Additionally, 15 other states joined the brief.

“Appellate practitioners have a deep impact on state attorney general efforts to protect citizens from wrongdoing and defend state laws and officers,” said Dan Schweitzer, chief counsel of the NAAG Center for Supreme Court Advocacy. “The Best Brief Awards recognize that appellate brief writing is a specialized skill. Congratulations to the winners for their commendable accomplishments.”

The Solicitor General’s Unit serves as the chief advocate in front of the Oklahoma and U.S. Supreme Courts. Attorneys in this unit also defend the constitutionality of state law. Additionally, the Solicitor General’s Unit regularly authors amicus briefs for submission to the U.S. Supreme Court and other courts across the nation.