Court Declined to Exclude Testimony on Public Education

Plaintiff, the Wilberforce Academy of Knoxville ("Wilberforce"), is a religious nonprofit organization seeking to establish a religious charter school in Knox County, Tennessee. Wilberforce's mission is unmistakable: to provide "Christian educational services" by operating a "Christian charter school." But Tennessee law currently provides that charter schools are required to operate as "nonsectarian" and "nonreligious." For this reason, Wilberforce contended that KCBE, which is responsible for approving or denying charter school applications, will ultimately deny Wilberforce's application solely because it intends to operate a Christian charter school.

Wilberforce initiated this action against KCBE, eventually challenging the then-existing ban on religious sponsors and the current Nonsectarian Requirement of the Act, which it believes unlawfully discriminates against religious organizations in violation of the Free Exercise Clause of the First Amendment.

In large part because KCBE declined to take a position on the merits and the State of Tennessee declined to intervene, the Court permitted two separate groups to intervene in this action. First, the Coble Intervenors joined this action in opposition to Wilberforce and to defend their interests in the way public-education tax funds are used in Tennessee. This group consists of Knox County taxpayers who each have children who attend or have attended a Knox County non-charter public school. They argued that their tax dollars will improperly fund religious instruction and be diverted from traditional public schools. The second group, the Carroll Intervenors, also opposes Wilberforce and has joined to defend the public nature of Tennessee charter schools. This group consists of parents of children who attend public charter schools in Memphis, Nashville, and Chattanooga, Tennessee. Many of these children have disabilities and receive accommodations under federal law, while others attend charter schools that receive federal funding to support students from low-income families. Unlike the Coble Intervenors, this group maintains that classifying Tennessee charter schools as private institutions would risk jeopardizing the public funding and statutory protections upon which their children rely.

Wilberforce moved to exclude the testimony of three separate experts, Holly Slater, Derek Black, and Steven K. Green, under Rule 702 of the Federal Rules of Evidence.

Education Expert Witness

Holly C. Slater serves as the Chief Executive Officer of Ivy Academy, a public charter school in Soddy Daisy, Tennessee. Slater holds an undergraduate degree in Psychology and a Master’s Degree in special education from The University of Tennessee Chattanooga.

Slater is a party who intervened in this case as well as a witness whom the Intervenor Defendants have disclosed to give opinion testimony under Rule 26(a)(2)(C).

Get the full story on challenges to Holly Slater’s expert opinions and testimony with an in-depth Challenge Study.

History Expert Witness

Professor Steven Keith Green is one of the nation’s foremost historians studying the intersection of law, religion, education, and history.

In addition to holding a J.D. from the University of Texas, Green holds an M.A. in American Religious History and a Ph.D. in American Constitutional History from the University of North Carolina. Steven Green has been disclosed as an expert witness in this case.

Want to know more about the challenges Steven Green has faced? Get the full details with our Challenge Study report.

Law and Legal Expert Witness

Derek W. Black is a law professor who specializes in education law. Black has published scholarly articles on the constitutional right to education, school desegregation, racial diversity, educational equality, school finance, school quality, school choice, school discipline, the history of education opportunity, teacher tenure, the federal role in education, and the state structure for public education. Derek Black has been disclosed as an expert witness in this case.

Want to know more about the challenges Derek Black has faced? Get the full details with our Challenge Study report.

Discussion by the Court

First, Plaintiff challenged the Carroll Intervenors' expert, Holly Slater. She is offered to testify about the degree of control the State exercises over charter schools based on her experience in traditional public schools and as a charter school administrator in Tennessee. Second, Plaintiff sought to exclude the Coble Intervenor's expert, Derek Black, a law professor who is offered to testify about the history and policies surrounding public education in the United States as they relate to the Court's state-actor analysis below. Finally, Plaintiff challenged the Coble Intervenor's expert, Steven Green, a law professor and legal historian offered to testify about the historical context concerning the Religion Clauses in support of their argument that religious charter schools violate the Establishment Clause.

Wilberforce raised several grounds for excluding these experts under Rule 702, including that they are not qualified and offer unreliable testimony based upon improper methodologies. The most significant, however, is that, according to Wilberforce, all three of the experts' anticipated testimony are primarily legal opinions reserved for the Court to make.

For purposes of the pending summary judgment motions, the Court need not wholesale exclude the challenged testimony. Much of it impermissibly offers legal conclusions, while the remainder is either irrelevant based on the Court's framing of the issues or insufficient to create a genuine dispute of material fact.

The Court is the factfinder in this case, and there is little risk that expert testimony will mislead or confuse the Court. The Court will therefore permit the testimony for purposes of resolving the pending motions without crediting opinions that impermissibly address questions of law or do not assist in resolving the issues presented.

Ultimately, however, the parties agreed that this case can be resolved on summary judgment. Indeed, all four sets of parties have filed motions for summary judgment. And the outcome of this case turns largely on how the Court defines the public function and entity at issue for the state actor analysis—questions of law for the Court, not the experts.

Slater is offered to testify about the ways in which the "State of Tennessee exercises significant operational and organizational control over public charter schools." That information, however, is meticulously laid out in the Tennessee Public Charter Schools Act. Indeed, Slater confirmed this in her deposition when she agreed that, to prove or disprove her opinions, "you could research or consult state law or federal law or what's asked for at the district." Although the Court is mindful that some aspects of her testimony clarify the practical realities of the State's regulation of charter schools, such testimony ultimately does not create a genuine dispute of material fact.

Black's and Green's testimony is largely irrelevant in light of the Court's findings. Black's entire expert report is premised on two central questions: (1) "Whether the provision of free education open to all is a traditional and an exclusive government function," and (2) "Whether Tennessee's charter schools are part of the state's system of free education open to all." Similarly, Green's expert report discusses the history of "free, universal public education" and its development throughout America's history. A look into the history and policies surrounding free, universal education, however, is not the proper inquiry, and even if it were, it does not create a genuine dispute of material fact. Thus, while some of Black's and Green's findings may provide helpful context in understanding traditional public schools and private schools, their findings do not generate any dispute of material fact in this case.

The Intervenors' experts largely analyze something different than the public function or entity at issue in this case. Their opinions therefore do not create a genuine dispute of material fact under the proper framework, even where those opinions might otherwise provide useful historical or practical context. Therefore, the Court will deny Wilberforce's Daubert motions, as the testimony these experts provide does not change the Court's findings and fails to create any genuine dispute of material fact.

Held

The Court denied Wilberforce's Daubert motions to exclude the testimony of Holy Slater, Derek Black, and Steven Green. The case was eventually closed.

Key Takeaway

Daubert motions ask courts to act as "gatekeepers," protecting juries from misleading or unreliable expert testimony. This is because the Court is "less prone to persuasion by misleading expert testimony than a jury." Even when conducting a bench trial, however, the Court may only consider admissible and reliable expert testimony.

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