Writing for The Conversation, Charles J. Russo, the Joseph Panzer Chair in Education and Research Professor of Law at the University of Dayton, explains the background for the case of Oklahoma’s Catholic charter school, which the Supreme Court has agreed to hear.
In a trio of recent cases, the majority of justices held that states cannot deny institutions or individuals generally available aid based solely on their religions. The first, decided in 2017, dealt with a Lutheran church applying for grants to enhance playground protection in a preschool and child care facility in Missouri. The court reached similar conclusions about an educational tax-credit program in Montana, and providing tuition assistance to parents in districts lacking public secondary schools in Maine.
This time around, the justices will face two key questions. First, do the teachings of “a privately owned and run school constitute state action simply because it contracts with the state”? In other words, is a charter school a state actor?
Second, the justices will weigh how the First Amendment religion clauses apply to a faith-based charter school. According to the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The question is whether a state violates the free exercise clause by excluding schools from the charter program “solely because they are religious.” If so, is the exclusion justified by concerns about the government “establishing” religion?
The first issue – the “state actor” question – essentially asks whether a state-funded school teaching Catholicism would constitute the government promoting a religion, in violation of the First Amendment prohibition against doing so.
Drummond, Oklahoma’s attorney general, argues that St. Isidore “misuses the concept of religious liberty by employing it as a means to justify state-funded religion.” The state’s “charter schools bear all of the hallmarks of a public school,” such as being entirely state-funded, he wrote in a brief to the Supreme Court. Thus, as a government actor, St. Isidore may not promote religion or one religion over another.
This “state actor” argument may be difficult for St. Isidore’s proponents to rebut. Yet, supporters of St. Isidore have an ace in the hole: that trio of recent Supreme Court opinions expanding the boundaries of aid to faith-based schools and their students.