A Supreme Court case would take a wrecking ball to separation of church and state in schools

The Supreme Court’s Republican majority certainly seems eager to make taxpayers fund religious education. Over the past few decades, the Court has slowly expanded the ability of religious schools to access public money. Most recently, in Carson v. Makin (2022), the Court held that states that provide tuition vouchers that pay for private education must allow those vouchers to be spent on religious private schools. Thus far, however, the Court has tolerated the separation of church and state in public education. That separation could be eroded in a case the Court will hear oral arguments for on the last day of April, however. That case, Oklahoma Statewide Charter School Board v. Drummond concerns a proposed Catholic school — St. Isidore of Seville Catholic Virtual School — which seeks to become the first religious public charter school in the country, dealing a severe blow to separation of church and state in public schooling in the process. Traditional public schools are state-owned institutions that are operated by the state. Private schools are owned and operated by someone other than the government. Charter schools are a kind of hybrid institution that are created by states and have always been understood to be part of a state’s public school system, but that are often operated by third parties under strict state control. As Oklahoma argues in its brief, both a 1994 federal law and the laws of 46 states not only classify charter schools as public institutions, they also require them to be nonreligious. St. Isidore rejects this classification, and it challenges a state constitutional provision forbidding the state from spending public money “for the use, benefit, or support of any sect, church, denomination, or system of religion.” St. Isidore and key officials within Oklahoma ask the Court to bypass this constitutional prohibition by reclassifying the state’s charter schools as private entities. Because Carson already established that states must fund religious schools if they offer subsidies to private educational institutions, the Oklahoma case turns on whether charter schools count as public institutions, as the state’s law classifies them, or whether they are private entities that the state contracts with to educate some students. The former would maintain the prohibition against religious charter schools, and the latter stance would destroy it. A key precedent in this case is Lebron v. National Railroad Passenger Corporation (1995), in which the Supreme Court warned that “Government-created and -controlled” entities must be classified as part of the government, otherwise the Court’s notorious pro-segregation decision in Plessy v. Ferguson (1896) “can be resurrected by the simple device of having the State of Louisiana operate segregated trains through a state-owned Amtrak.” Given this precedent, if government-created and -controlled entities are public, then Oklahoma’s charter schools should count as public schools. Under Oklahoma law, the state’s charter school board “shall have the sole authority to sponsor statewide virtual charter schools in this state,” and the state exercises considerable control over charter schools. But precedent has about as much influence over this Supreme Court’s religion decisions as the works of Tchaikovsky have over Egyptian hip-hop. Just one month after Justice Amy Coney Barrett’s confirmation gave Republicans a supermajority on the Court, Barrett joined four of her Republican colleagues in overruling a decision governing worship services during the pandemic that was only a few months old. And that was the first of many decisions remaking the Court’s approach to religion. So it remains to be seen whether these justices will care what the Court said in Lebron, or even whether they will honor their recent declaration in Carson that public schools are permitted to remain “strictly secular.” The Supreme Court’s about-face on church/state separation in schools Not that long ago, the Constitution was understood to forbid states from funding religious institutions. As the Supreme Court said in Everson v. Board of Education (1947), “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” This strict rule against using taxes to fund religion hasn’t been the law for at least the last two decades, however. In Zelman v. Simmons Harris (2002), the Court considered whether a state may voluntarily choose to create a private school voucher program where the vouchers may be spent at religious institutions. In a 5-4 decision, most of the justices concluded that a state could choose to fund religious private schools if it wanted to, so long as parents ultimately got to decide whether to send their children to one of these schools. Zelman, however, merely established that the Constitution is neutral on the question of whether states should fund private religious schools. Under its regime, states retained the right to only fund public education, or to provide subsidies to secular private schools but not to religious institutions. Carson, meanwhile, was the culmination of three Supreme Court cases that abandoned Zelman’s neutrality toward religion in favor of mandatory funding for religious schools. Carson did not go so far as to hold that states must provide tuition vouchers to religious institutions. But it did establish that, once a state sets up a school voucher program, “it cannot disqualify some private schools solely because they are religious.” Still, even Carson emphasized that its rule is limited to states that fund private education. A state, Carson held, is still allowed to “provide a strictly secular education in its public schools.” Thus, the Oklahoma case now turns on whether charter schools count as public or private. If they are public, then Oklahoma and the nearly four dozen other states with charter schools may continue to operate them as they always have been operated — as strictly secular. If they are private, then Carson mandates that the state must fund religious charter schools. Under existing law, St. Isidore will be a public school if it is allowed to open Lebron suggests that an entity is public when it is both government-created and government-controlled. More recently, in Biden v. Nebraska (2023), the Court determined that a Missouri corporation that services billions of dollars worth of student loans is “an instrumentality of Missouri” because it “was created by the State to further a public purpose, is governed by state officials and state appointees, reports to the State, and may be dissolved by the State.” The question of whether the state created St. Isidore is somewhat fraught, and if the school does open it can fairly be said that it has two parents. In a brief supporting religious charter schools, the Trump administration points out that the corporate entity that will operate St. Isidore “originated as a private non-profit corporation, conceived of and incorporated by the Archdiocese of Oklahoma City and the Diocese of Tulsa.” But while it’s true that private parties brought this corporation into being without state involvement, beyond the fact that corporations are chartered under state law, this corporate entity is a hollow shell without the state. Oklahoma law provides that virtual charter schools like St. Isidore cannot exist without sponsorship from the Statewide Charter School Board. It forbids ordinary private schools from becoming charter schools. And it provides that St. Isidore will not be “considered established” until it receives state sponsorship. A school like St. Isidore, in other words, is not “created” until the state of Oklahoma says so. Once an Oklahoma charter school is created, moreover, the state exercises tremendous control over it. Under state law, the state charter school board provides “supervision, services, and oversight of the operations of statewide virtual charter schools.” Charter schools are subject to the same testing, health, safety, civil rights, insurance, and disability rules that govern ordinary public schools. They may be audited by the state, and are subject to “the same reporting requirements, financial audits, audit procedures, and audit requirements as a [public] school district.” Charter schools generally must provide an “academic program aligned with state standards.” And they are annually evaluated by the state charter school board under a detailed framework laid out in an Oklahoma statute. Indeed, some of the state laws governing what is taught at Oklahoma charter schools are quite granular. One statute, for example, provides that all charter schools “shall provide instruction in cursive handwriting for students in the third through fifth grades.” Finally, the state of Oklahoma may shut down charter schools entirely for poor student performance, bad fiscal management, or for “other good cause.” The state also ranks public and charter schools by performance and may shut down any charter school that ranks “among the bottom five percent (5%) of public schools in the state.” St. Isidore, in other words, cannot be created without the state. It fulfills the kind of “public purpose” imagined by Nebraska — providing a free public education to Oklahoma students — and it “is governed by state officials and state appointees, reports to the State, and may be dissolved by the State.” All of that suggests that St. Isidore, if it is allowed to exist, will be a public school. And, on top of all of that, Oklahoma’s charter school laws are part of a web of state and federal laws that have always understood charter schools to be public entities and that require them to be secular institutions. Nothing in the Constitution has changed since this web of laws was enacted. The only thing that’s changed is that the Supreme Court now has a Republican supermajority that frequently overrules precedents in order to require more state funding of religion. What are the stakes in this case? For fans of the First Amendment, the constitutional stakes in this case should be fairly obvious. That amendment forbids the government from establishing a religion, a provision that has historically been understood to forbid the government from entangling itself with religious institutions like a parochial school — although the Roberts Court, in its zeal to wipe away its predecessors’ work on religion, may have tossed this principle out as well in a 2022 decision. Since Zelman permitted states to fund religious private schools voluntarily, moreover, the Court has emphasized the importance of parental choice. It’s one thing for the state to subsidize religious education that families choose for themselves. It’s another thing altogether, at least under a First Amendment that guarantees everyone the right to freely practice their own faith, for the state to mandate that children attend a religious school that does not align with their family’s convictions. But if religious public schools — or even, as St. Isidore requests, religious schools funded and controlled by the state, which are newly classified as “private” — can exist, they risk crowding out traditional schools that offer a secular education. And should that happen, parents could find themselves with few options other than their local religious charter school, essentially eliminating choice and forcing families to send their children to schools that promote religions they do not identify with. Imagine a neighborhood where nearly all of the families share a particular faith — let’s say a neighborhood of Orthodox Jews. If the government opens an Orthodox Jewish school in this neighborhood, most of the local parents are likely to opt into that school, starving the area’s traditional public school of funding and resources. (Public schools, including charter schools, typically receive funding based on how many students they enroll.) Now imagine that a family that belongs to a Reform Jewish synagogue moves into that neighborhood. That family is likely to feel pressured to send its children to the Orthodox school because it will offer a better education than the under-resourced secular school. The other question raised by St. Isidore’s request is: What happens if religious charter schools were to deny constitutional rights to students? According to a student/parent handbook published online, another private school operated by the Archdiocese of Oklahoma City expels students if they or their parents disagree “with Catholic faith and morals.” The school also bans “advocating for, or expressing same-sex attractions.” Private religious schools may demand that their students comply with the tenets of a particular faith, so long as the school complies with anti-discrimination laws and similar legal restrictions. But public schools are bound by the Constitution — the Supreme Court has said that public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” for example. If charter schools are reclassified as private, that means that all of their students could lose access to their constitutional rights. The Court’s Republicans have been eager to usher in a bold new social experiment, where the idea of separating church and state fades away, and taxpayers are forced to pay for the religious practices of their neighbors. It remains to be seen whether this experiment is compatible with the principle that every American is entitled to a free public education that does not interfere with their own religious beliefs. Oklahoma may provide the answer.

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A Supreme Court case would take a wrecking ball to separation of church and state in schools