Supreme Court ruling could turn religious schools into an arm of the government
Foes of proposed charter school see it as damaging to both church and state
The legal argument against the creation of a Catholic-run charter school in Oklahoma is as straightforward as can be: As a legal brief1 submitted to the U.S. Supreme Court this month asserts, an Oklahoma state school board and Catholic Church-sponsored organization “seek to establish a religious governmental entity. There is no clearer Establishment Clause violation than this.”
Whether the nation’s highest court agrees remains to be seen, but it’s hard to argue with the logic of the school’s opponents: In a country where it is well established that a public-school teacher can’t constitutionally lead students in a mandatory prayer, it makes no sense that the government could create an entire public school run by a church and using a religious curriculum.
The case is Oklahoma Statewide Charter School Board v. Drummond, which challenges the 2023 decision of the Oklahoma Statewide Charter School to fund the proposed St. Isidore of Seville Virtual Charter School. The virtual school would be operated by a nonprofit controlled by the Archdiocese of Oklahoma City and the Diocese of Tulsa and funded in the same way that the state’s other charter schools, all of them fully secular, are. The plan has been put on hold by the Oklahoma Supreme Court, and it is that court’s decision that has been appealed to the U.S. Supreme Court.
State AG argues that charter schools are government entities
The focus of the argument presented by school opponent Oklahoma Attorney General Gentner Drummond in his written arguments to the high court is that a charter school is a government entity, or at least an entity acting on behalf of the government. It is a government entity, he argues, because, among other things, it is created by the government, it can be dissolved by the government, it is ultimately controlled by the government, it is funded by the government, and so on.
Of course, backers of the school have their own arguments, but they seem convoluted in comparison, claiming that a charter school doesn’t represent the state in a sufficient legal sense. We won’t find out until June, most likely, what the high court will find persuasive. Suffice it to say for now that the court probably would not have agreed to hear the case if there weren’t at least a few justices who are open to overturning the Oklahoma Supreme Court’s 6-2 finding that the proposed school’s operation would violate the federal constitution.2
The American Civil Liberties Union and other advocates of church-state separation have correctly argued that there is something intrinsically wrong with expecting taxpayers to fund schools operated by a religions different than their own. In his written argument, Drummond takes that position one step further, arguing not only that the public funding of a religious school causes a sort of harm to taxpayers of other religions, but that it also would pose severe challenges to the religion receiving the funding.
By law, charter schools are open to all students who are eligible for a public education; even a religious charter school would be unable to deny admission to a students based on religious belief. But Drummond wonders whether a religious school could really be true to its mission by following such a policy:
As discussed, a central feature of charter schools is that they are subject to the same nondiscrimination requirements as all public schools. St. Isidore, Inc. states ... that its school is open to all. But the student handbook adds a caveat: “Admission assumes the student and family willingness to adhere with respect to the beliefs, expectations, policies, and procedures of the school as presented in the handbook.” ... That includes the belief “that Christ is present in the Holy Eucharist,” “required” attendance at mass, and a commitment to “[s]upport the [religious] mission of the School.” ... Students may be disciplined, including with suspension, for failing to comply with the handbook. So would St. Isidore really be open to all?
Even if St. Isidore, Inc. is willing to represent that the St. Isidore school will take all-comers, the next case will be a religious charter school that tests this limit. Indeed, religious entities have previously challenged such “all-comers” requirements as corroding their “identity, cohesion, and message.”3
Aside from the technical questions over whether a charter school is a state actor, a more important question is: Is it a good idea for a government to be sponsoring a religious school? Not all religious leaders think it is.
Religious foes predict harm to religious freedom
Most notably, among the religious groups that have asked the Supreme Court to reject the Oklahoma plan is the Baptist Joint Committee for Religious Liberty, which represents the traditional Baptist view of church-state separation. It has partnered with several other major religious entities — including mainline Protestant groups,+ the Central Conference of American Rabbis and the Union for Reform Judaism in its amici curiae or friends-of-the-court legal brief to the court.4 In their words, they all believe, despite deep theological differences, that “government sponsorship of religion endangers, rather than enhances, religious liberty” and that “religion flourishes best when it is supported voluntarily and privately — not sponsored by the state with public funds.”
As this religious coalition makes clear, approval of the Oklahoma plan would inevitably lead to restrictions that the sponsoring religion would not have to face if it provided its own funding:
As a public entity, St. Isidore would be bound by anti-discrimination laws and the constitutional protections that apply to government employers. But as a religious institution, it would simultaneously claim the right to make employment decisions based on religious criteria — to hire only Catholic teachers, for instance, or to dismiss employees who do not adhere to Catholic teachings. No court could resolve this contradiction without either depriving the school of its claim to religious autonomy, or exempting a public entity from constitutional constraints that bind all government actors. Indeed, this Court has recognized that even limited governmental oversight of religious school operations “presents a significant risk” of impermissible entanglement with religious questions. ...
The law would be hard-pressed to sustain such a contradiction, simultaneously requiring that a public school be subject to anti-discrimination rules while permitting it to fire “ministerial” teachers on otherwise prohibited bases. The Constitution offers up a simpler solution — one that avoids an unworkable government entanglement in what should be religious decisions: Public schools may not teach religion, and government may not directly fund religious schools.
The high court will hear oral arguments on April 30 with a decision probably coming in June. Although the case has been overshadowed in public discourse by the controversies of the Donald Trump administration, a decision for the Catholic school would likely have greater repercussions on public education than would proposals to abolish the Department of Education. It would almost certainly spur the creation of numerous state-funded religious schools, potentially curtailing the American tradition of a public education that is free of sectarian control.
The brief quoted here was one submitted by attorneys representing the American Civil Liberties Union and others working on behalf of the Oklahomans who filed suit to prevent the charter school’s formation.
The Oklahoma court also ruled 7-1 that the school would violate the Oklahoma Constitution.
Ellipses are used in this except to to remove legal citations to other documents. The content of the legal brief’s argument is not otherwise changed.
Two of the largest churches that have traditionally been involved in church-state legal fights — the Seventh-day Adventist Church and The Church of Jesus Christ of Latter-day Saints — do not appear to have taken a position in this case. The Adventists operate the country’s largest network of Protestant primary and secondary schools, while the Latter-day Saints offer released-time instruction to to tens of thousands of students in areas with a high LDS population in Utah and Idaho. The two churches have not sought government funding for their education programs.