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High Court to Hear Telephone Arguments, Including in Religious-School Case

By Mark Walsh — April 13, 2020 3 min read

The U.S. Supreme Court announced Monday that it will hear arguments remotely in May in about half of the cases postponed from its March and April sessions due to the coronavirus pandemic, including a major case on whether religious schools are exempt from employment discrimination claims brought by lay teachers.

“In keeping with public health guidance in response to COVID-19, the justices and counsel will all participate remotely,” the court’s public information office said in a statement. “The court anticipates providing a live audio feed of these arguments to news media. Details will be shared as they become available.”

The court has been under some pressure from advocates to use the circumstances of the pandemic to adopt some form of hearing arguments remotely. Many lower courts routinely release audio or video of their courtroom arguments and have been conducting teleconference or videoconference arguments.

On April 3, when the court announced the postponement of its April argument session, the court said it would consider “a range of scheduling options and other alternatives if arguments cannot be held in the courtroom before the end of the term.”

The court said Monday its building remains open for official business, but that most employees are teleworking. Early this month, Justice Stephen G. Breyer addressed students at a New York City private school via Zoom, from his home in Cambridge, Mass.

The court said telephone arguments would be heard May 4, 5, 6 ,11, 12, and 13. It was still working out the schedule of which cases would be heard when.

Among the cases to be argued are a handful that most legal experts said were urgent enough that they could not be postponed until fall. Those include two arguments involving efforts by Congress and New York state prosecutors to gain access to President Donald Trump’s financial records, and two cases about whether states may penalize so-called faithless electors—those who cast votes in the Electoral College that do not match the outcome of the presidential popular vote in their state.

The other cases on the May list are a bit of a surprise in that they struck some observers as less urgent under the circumstances of the coronavirus. (And the 10 not announced for May arguments are presumably being postponed until next term.)

Among the cases of interest to educators that will be argued in the May session are these:

Our Lady of Guadalupe School v. Morrissey-Berru (No. 19-267) and St. James School v. Biel (No. 19-348), about whether the “ministerial exception” exempting religious employers from civil rights laws applies in the case of two lay teachers at Roman Catholic schools who mainly taught secular subjects, but also had some religious teaching duties. These cases are consolidated and count as one of the 10 arguments in May.

Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (No. 19-431), consolidated with Trump v. Pennsylvania (No. 19-454), involving the contraceptive-coverage mandate of the Affordable Care Act, with several religious entities and the Trump administration appealing a nationwide injunction that blocks religious exemptions to the mandate.

McGirt v. Oklahoma (No. 18-9526), in which the justices will hear arguments about whether nearly half the state of Oklahoma is still an American Indian reservation, a question which holds implications for taxation, education, and criminal justice.

The biggest education case of the term, Espinoza v. Montana Department of Revenue (No. 18-1995), about a Montana tax credit program for donations for scholarships to private schools, was argued in January and remains pending a decision by the justices.

The court did not say whether the May arguments, which are a couple of weeks later than the usual last argument session in late April, would prevent the justices from releasing opinions in all argued cases by the traditional end of the term in late June.

A version of this news article first appeared in The School Law Blog.

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