While the country holds its breath for the Supreme Court’s responses to the Trump administration’s serial depredations, it’s hard to focus on anything else. Nonetheless, a case set for argument next month before the court merits more attention than the little it has received, given its destabilizing potential for public education. The central question is whether a state that allows charter schools as alternatives to traditional public schools, as nearly all states do, must agree to fund those that are explicitly religious.
To emphasize: The court is not being asked to decide whether a state may, if it chooses, include a taxpayer-funded parochial school among its charter school offerings. That question alone would challenge the long-held understanding of the separation of church and state in the context of public education. This case goes further. It concerns what would be the first fully taxpayer-supported religious school in modern American history. The internet-based “virtual” Catholic school that the Archdiocese of Oklahoma City and the Diocese of Tulsa seek to operate, St. Isidore of Seville Catholic Virtual School, would promote the “evangelizing mission of the Church.” The question is whether the Constitution requires Oklahoma to permit the school to open its virtual doors as a public charter school.
This is far from the first collision between the two religion clauses of the First Amendment, the protection for the “free exercise” of religion and the prohibition against religion’s official “establishment.” But this case reaches the court at a time of rapid change in the justices’ treatment of the relationship between the two clauses. Not so long ago, the Supreme Court was willing and able to manage the inherent tension between the two clauses by giving weight to each.
For example, the question in a 2004 case was the constitutionality of a state’s explicit exclusion of ministerial studies from eligibility for an otherwise widely available state scholarship program. A student who wanted to use the scholarship to study for the ministry argued that his inability to do so violated the Free Exercise Clause. The court rejected that argument, holding that while the Establishment Clause would have permitted the state to subsidize ministerial training if it chose, the Free Exercise Clause did not impose such a requirement.
In rejecting the argument that the state had imposed a burden on the free exercise of religion, the court said the state was not penalizing or criminalizing a religious service or rite, prohibiting ministers from participating in a community’s affairs or requiring students to choose between their religious beliefs and receiving a government benefit. Instead, the court said, “the state has merely chosen not to fund a distinct category of instruction,” which it said was a legitimate interest of the state in preventing an establishment of religion.
The court’s goal was to maintain “play in the joints” between the two clauses that frequently were in tension with each other, Chief Justice William Rehnquist wrote in the majority opinion in Locke v. Davey.
But “play in the joints” has fallen out of favor in the current court. In a 2022 case, Carson v. Makin, the question was whether a state could exclude religious schools from a program that permitted people who lived far from a public secondary school to send their children elsewhere at state expense. The court held that the exclusion of religious schools from eligibility violated the free exercise rights of parents who would have chosen a religious school. The 2004 decision turned out, after all, not to stand for the broad principle of maintaining a balance between the two religion clauses. Chief Justice Rehnquist’s successor, John Roberts, wrote in the Carson decision that Locke v. Davey should be interpreted to apply only to its precise facts and “cannot be read beyond its narrow focus on vocational religious degrees to generally authorize the state to exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits.”
In a series of cases beginning in the early 2000s and culminating with that one, the court has substituted for what would have been Establishment Clause concerns a seemingly limitless nondiscrimination principle: Whatever the government does for anyone, it has to do for religion, too. Further, the court’s invocation of the Free Exercise Clause in these cases has depended on the notion that when parents choose a generally available financial subsidy like a voucher or tax credit for religious use, that is a private choice in which the government plays no role.
The challenge in the case involving the virtual Catholic school, Oklahoma Statewide Charter School Board v. Drummond, is whether the court can sustain the fiction of private choice when it’s no longer a matter of individuals directing a state tuition subsidy to a private school that happens to be religious. St. Isidore would be, like the other charter schools that some 50,000 Oklahoma students currently attend, a taxpayer-financed public school.
Or so the Oklahoma Supreme Court held last June when it declared that the state’s Charter School Board’s approval of St. Isidore violated the federal Establishment Clause as well as the Oklahoma Constitution and the state law governing charter schools.
“Under the Act,” the state court wrote, referring to the Oklahoma Charter Schools Act, “a charter school is a public school.” The court noted that while charter schools are free from some state regulations, they have to adhere to numerous other rules that apply to ordinary public schools. Their teachers are eligible for the same state retirement benefits as other public school teachers, the court observed. “St. Isidore will be acting as a surrogate of the state in providing free public education as any other state-sponsored charter school,” the court said. “What St. Isidore requests from this court is beyond the fair treatment of a private religious institution in receiving a generally available benefit, implicating the Free Exercise Clause. It is about the state’s creation and funding of a new religious institution violating the Establishment Clause.”
As the state court emphasized, the characterization of St. Isidore as a public school matters because only in that case is it a “state actor” to which the federal Constitution applies. The Charter School Board and St. Isidore itself, both of which are appealing the Oklahoma court’s decision, are arguing vigorously to the justices that the school is, in fact, private and that the nondiscrimination principle should resolve its case. “St. Isidore is not an arm of the Oklahoma government,” the school said in its petition seeking Supreme Court review, “and Oklahoma has plainly violated its Free Exercise rights by cutting it off from the benefits created by the Charter Schools Act” solely because it is religious.
The school is represented in its Supreme Court appeal by lawyers including Notre Dame Law School’s Religious Liberty Clinic. That is probably the reason that Justice Amy Coney Barrett, who spent 15 years as a law professor at Notre Dame and has taught classes there while on the bench, has recused herself from the case. The Charter School Board is represented by Alliance Defending Freedom, the prominent Christian litigating group that has scored a series of recent victories at the Supreme Court.
The case is deeply entangled in Oklahoma politics. It was the state’s attorney general, Gentner Drummond, who sued the Charter School Board to keep the school from opening. The state’s governor, J. Kevin Stitt, strongly supports the school and filed his own brief, which opposes the brief that Attorney General Drummond filed. Both officials are Republicans.
Before the board approved St. Isidore’s charter, Mr. Drummond had warned against creating a “slippery slope” that would compel approval of charter school applications by any and all religious groups, “even those most Oklahomans would consider reprehensible and unworthy of public funding.” The warning was valid as far as it went, but it should have gone further. Yes, an occasional Muslim madrasa seeking to incorporate as a charter school would be likely to cause controversy, but the problem is much broader. It is easy to imagine a scramble for public resources among mainstream faith groups, each with a curriculum in mind. As of 2021, some 3.7 million students were enrolled in public charter schools across the country. How many millions more might be drawn to a safely siloed religious education if it is available at taxpayer expense? And who will be left in the secular public schools?
A quarter-century ago, Justice David Souter, a devout Episcopalian and a strict separationist, dissented from a decision that expanded the eligibility of religious schools for various types of equipment and other public resources.
“The establishment prohibition of government religious funding serves more than one end,” the now-retired justice wrote in his dissenting opinion in Mitchell v. Helms. “It is meant to guarantee the right of individual conscience against compulsion, to protect the integrity of religion against the corrosion of secular support, and to preserve the unity of political society against the implied exclusion of the less favored and the antagonism of controversy over public support for religious causes.”
At a time of surging Christian nationalism in response to the country’s evolving demography, that warning is even more timely now than it was then.
This case puts the Supreme Court to a choice. If St. Isidore of Seville Catholic Virtual School is a public school, the court can uphold it only by further erasure of the Establishment Clause. If the justices deem it sufficiently private to evade the Constitution’s reach, they will have invited further fragmentation of public education, one of the few experiences that most Americans share. At this fraught moment for the court and the country, it may not be too much to suggest that the future of an increasingly fragile civil society is at stake as well.
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