Backers of taxpayer-funded religious schools initiate proposals in Oklahoma and Kentucky
Organizers hope eventually to overcome a 4-4 ruling this year at the Supreme Court
By the narrowest of margins — a 4-4 tie that had the effect of upholding a state-level ruling — the U.S. Supreme Court earlier this year rejected an effort to create the nation’s first publicly funded religious charter school. Now, organizations in two states are hoping they can achieve a different outcome by getting a similar case before the top court, this time with what they hope would be the support of Justice Amy Coney Barrett, who recused herself in the earlier case.
The thought that the Supreme Court would allow a religious school to operate as a type of public, tax-supported school would have been unthinkable even five years ago. But a string of cases that loosened constitutional restrictions on religious influence in public schools has created the opportunity for advocates of schools to see court approval within reach. Most significantly, the 2022 Makin v. Carson decision said that if a state, in that case Maine, allows publicly funded school vouchers to be used for private schools operated by secular organizations, it is unconstitutionally discriminatory to not allow those vouchers to be used for schools operated by religious organizations.
Advocates for taxpayer funded religious schools hope to use Makin as a precedent for an expansion into school full funding of religious schools, which opponents argue violates the establishment clause of the First Amendment.
Although the United States has charter schools run by religious organizations, they offer totally secular educational programs. What makes the new proposals different is that the schools would offer religious education similar to what private religious schools do.
Advocates for the public religious schools have be begun laying the legal groundwork for their plans in Oklahoma and Kentucky. Here’s a quick look at what’s in the works:
Oklahoma: Jewish group expresses interest to charter school board
It was the case of Oklahoma Statewide Charter School Board v. Drummond that split the nation’s top court 4-4, allowing a ruling by the Oklahoma Supreme Court to stand. The state court had ruled unconstitutional the proposed St. Isidore of Seville Virtual Charter School. The proposed charter school would have been operated by two Catholic dioceses and would have offered a standard Catholic curriculum including religion classes and school-sponsored religious activities — all funded by taxpayers.
Now a Florida-based Jewish group, the National Ben Gamla Jewish Charter Foundation, has told the Oklahoma Statewide Charter School Board that it will apply for funding for a virtual charter school of about 40 high school students.
Already, the legal battle lines are being drawn. “We’re prepared to take it to the Supreme Court,” Eric Baxter, senior counsel at the Becket Fund for Religious Liberty, told the Washington Post. On the other side, Americans United for Separation of Church and State, announced on its website that it is asking the Oklahoma school board for its records relating to the Ben Gamla’s plans. Americans United also is suggesting that some of the same “religious extremists” who sought approval for the proposed St. Isidore school are behind the Jewish proposal.
Other news accounts indicate that Ben Gamla expects that the charter school board will reject the new proposal in keeping with the Oklahoma Supreme Court ruling. Ben Gamla would then challenge that decision to a federal court and ultimately, if it loses, to the U.S. Supreme Court.
Barrett did not state a reason for recusing herself from the St. Isidore case, although she probably did so because of professional connections she had with persons involved with the school and/or its legal representatives. Presumably, Barrett, who is Roman Catholic, doesn’t have connections that would keep her from making a decision in a case involving the proposed Jewish school. Of course, it is unknown how she would rule in such a case; although she usually sides with the court’s conservative majority, she also has shown an independent streak that sometimes has her voting with the court’s liberals.
Kentucky: Proposed school wants to offer ‘explicitly biblical’ education
A evangelical Christian group, The Wilberforce Academy of Knoxville, has filed a lawsuit in the U.S. District Court Eastern District of Tennessee Northern Division asking the court to order the Knox County Board of Education to consider its planned application for a charter school based on a “Biblical foundation.”
In its lawsuit, Wilberforce Academy said it cannot submit an application because under state law the application must include a promise to offer a secular education. If the lawsuit is successful, the county school board would be required to ignore that provision in state law.
Little is publicly known about the group beyond what is stated in the lawsuit, which describes its plans this way:
There would be a focus on “biblical literacy” beginning in kindergarten.
Wilberforce would emphasize “strong civic engagement and social responsibility.” Students would “receive lessons on Tennessee history and government, hold mock elections, and participate in a school-wide monthly town hall featuring celebrations, speakers, and community-building activities.”
The school aims to ultimately have 450 students from kindergarten through high school.
Students would not be required to affirm Christian doctrine.
Faculty members would be required to affirm the Apostles’ Creed and a belief in the inerrancy and infallibility of the Bible.
The proposed academy is named after William Wilberforce, a British evangelical Christian known best for his advocacy as a slavery abolitionist beginning in 1787. His work was an inspiration for the Christian hymn Amazing Grace.
The Knox County board has not had time to respond to the lawsuit, and it is unlikely that any court hearings will be held on the case until next year.