A surprise Supreme Court ruling on Thursday prevented the nation’s first religious charter school from opening in Oklahoma, in a 4-to-4 vote that seemed to put the brakes on a conservative movement to expand government funding for religious education.
But the ruling may prove to be only a speed bump for the conservative education agenda.
Conservatives are poised to get much of what they want, and more, through a powerful school voucher movement that has raced through Republican state legislatures and is on the precipice of coming to all 50 states.
On the same day that the Supreme Court rejected government support for religious education in charter schools, the House narrowly passed an all-encompassing piece of domestic policy legislation that creates, for the first time, a federal school voucher program.
The bill sets aside $5 billion to fund vouchers for families, who can use the money to pay for K-12 private school tuition, home-schooling or virtual learning. It would bring vouchers even to liberal states like New York and California that have long resisted the concept, and is expected to reach as many as 1 million students nationwide with much of the money going to pay for religious education.
Nearly 80 percent of private school students attend a religiously affiliated school.
“On balance, this is a massive day of victory,” said Tommy Schultz, chief executive of the American Federation for Children, which supports the school voucher movement. Despite the Supreme Court ruling, he predicted “growth in religious school choice in America,” driven by increased political support for vouchers.
More than 1 million American students already use taxpayer dollars to pay for private education or home-schooling costs, double the number from 2019. Last month, Texas became the last large Republican-leaning state to pass private-school choice legislation, and advocates quickly shifted their attention to Washington.
The program that passed the House is structured as a $5 billion tax credit. It amounts to a dollar-for-dollar tax write-off, for every dollar in cash or stock donated to certain nonprofits that then grant private-education scholarships to students.
A vast majority of American households with children would be eligible to receive a scholarship, as long as they do not earn more than 300 percent of their area’s median income, which is equal to over $300,000 in some parts of the country.
The option to fund the scholarships is expected to be popular with wealthy taxpayers. It offers a much larger tax break than donations to other charities, including churches and community nonprofits.
“It’s unprecedented,” said Carl Davis, research director at the Institute on Taxation and Economic Policy, a liberal think tank. He said many donations could come in the form of stock, potentially allowing donors to avoid paying capital gains taxes.
The plan now heads to the Senate, where Republicans are generally supportive, though they may still adjust some of the program’s details. Some Republican senators, like Ted Cruz of Texas, support a larger program of $10 billion, with no income constraints on who can use vouchers.
Because the bill would be passed using a special budget process, it can become law with only 51 votes in the Senate. Republicans hold 53 seats.
While voucher advocates once focused on providing more options to low-income students, students with disabilities and other disadvantaged groups, they are now pushing vouchers for most everyone. The movement is backed by powerful conservative donors, like the billionaire Jeff Yass, who have funded the political campaigns of Republican voucher supporters. They have overcome resistance from some conservatives who — like many liberals — long worried that vouchers would harm public schools, by decreasing enrollment and funding levels.
Becky Pringle, president of the National Education Association, the nation’s largest teachers’ union, said the bill would “siphon crucial funding from public schools — serving 90 percent of students — and redirect it to private institutions with no accountability.”
Riding a wave of pandemic dissatisfaction with public education, 10 states now operate private-school choice programs that are available to all or nearly all students, up from just two states in the 2022-23 school year. Five more states — Alabama, Idaho, Louisiana, Tennessee and Wyoming — are set to begin similar programs next school year, according to FutureEd, an education think tank at Georgetown University that has tracked legislation.
In many cases, early reports show that expansive voucher programs often subsidize fairly affluent families whose children were already enrolled in private school.
The Supreme Court allowed school vouchers to be used for religious education in 2002. The court said that vouchers do not violate the establishment clause of the First Amendment, which prohibits the government from establishing religion, because parents act as intermediaries and can choose from an array of school options, both secular and religious.
The case in Oklahoma sought to take government funding of religious education a step further, with direct public funding of a religious charter school.
Across the country, charter schools are public, nonsectarian and funded with taxpayer dollars, similar to traditional district schools. But they are run independently, often by nonprofits, and are meant to offer alternatives to families, who can attend regardless of ZIP code.
In Oklahoma, an online Catholic school proposed by the Archdiocese of Oklahoma City and the Diocese of Tulsa sought to open as a charter. It would have been fully funded by taxpayer dollars, but its curriculum would have incorporated Catholic doctrine.
Supporters of the school, St. Isidore of Seville Catholic Virtual School, challenged charter schools’ status as public schools, arguing that they are in practice more like private schools in contract with the government, not public entities.
The Supreme Court rejected that plan without explanation, in a 4-to-4 vote that was possible because Justice Amy Coney Barrett recused herself.
The tied vote sets no national precedent, leaving open the possibility that the court, which has expanded the role of religion in other cases, could take up the issue again later with its full conservative majority.
The Oklahoma case was championed by supporters of religious freedom, who argue that barring religious groups from operating charter schools, when other groups are free to do so, is religious discrimination.
Some school choice advocates celebrated the court’s ruling and the House bill as the best of both worlds, noting that it avoids the complicated legal battle and upending of the education landscape that could have resulted from redefining charter schools as private.
“It’s really a win for the school choice movement on both counts,” said Michael J. Petrilli, president of the Thomas B. Fordham Institute, a center-right think tank, who supports school choice and was among those who worried that allowing religious charters would have posed problems for charter schools in blue states.
“It preserves charters as a strong option in the public school system,” he said. “But it opens the door to private school choice everywhere.”
A federal voucher program could be a boon to Catholic schools in particular, which make up the largest share of private school enrollment, at 35 percent.
“We’ve been supporting it all along,” said Sister Dale McDonald, vice president of public policy for the National Catholic Educational Association, which represents Catholic school educators.
The federal bill was in many ways “more significant” than the Oklahoma case would have been, she said, because if it passes, families across the nation will be able to use it to help pay for tuition at existing schools.
Even in Oklahoma, the spread of vouchers means that St. Isidore may still be able to use public money to support its goal of offering online Catholic education to students in rural parts of the state.
Around the same time St. Isidore was initially approved as a charter, Oklahoma passed legislation giving parents up to $7,500 per child for private school tuition.
After the Supreme Court ruling on Thursday, the board for St. Isidore said in a statement that it was “exploring other options” for offering virtual Catholic education statewide.
Sarah Mervosh covers education for The Times, focusing on K-12 schools.
Dana Goldstein covers education and families for The Times.
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