Jan Resseger: Will Far-Right Money and Influence Decide Whether States Can Have Explicitly Religious Charter Schools?
Jan Resseger looks at the issues bubbling up around the Oklahoma Catholic public charter school. Reposted with permission.
Last summer, in Carson v. Makin, an important First Amendment case about the entanglement of religion and government funding for schools, U.S. Supreme Court Chief Justice John Roberts wrote for the 6-3 conservative majority that if Maine awards publicly funded vouchers to private schools in remote towns so small they lack a public high school, the state cannot discriminate against private religious schools that explicitly promote religion. Far right advocates had, through a two decades-long strategic series of U.S. Supreme Court test cases, redefined the connection of religion and schooling by reducing concern about the separation of church and state in public schools (an Establishment Clause definition) and refocusing on protecting religious free exercise in the form of guaranteeing religious private schools the right to the same vouchers available to other private schools (a Free Exercise Clause definition).
Now in 2024, the issue has shifted from the constitutionality of vouchers for religions schools to the constitutionality of religious charter schools.
There are two issues for government here: (1) protecting children from a charter school’s imposition of religious practice, something which should be the family’s choice, and (2) ensuring that government is not sponsoring charter schools that can select students according to the school’s religious affiliation or discriminate against students whose LGBTQ status (or other characteristic) may violate church strictures. The General Counsel for the Baptist Joint Committee for Religious Liberty, Holly Hollman commented on these same concerns as they arose in summer’s Carson v. Makin decision on vouchers: “The Court’s decision to require Maine to fund religious instruction threatens our nation’s commitment to religious freedom and the understanding of church-state separation that protects it. A majority of justices on the Supreme Court keep ignoring the distinctive role of religion in law and society, which is best served by separating the institutions of religion and government.”
Although the decision in Carson v. Makin makes it possible for students at explicitly religious private schools to qualify for taxpayer-funded vouchers, this U.S. Supreme Court decision does not apply to charter schools, which are privately operated but established by state law and funded by the 45 states that have charter schools.
A big question in 2024 is whether the legal principles in Carson v. Makin can apply to charter schools. The specific test case arose last summer when the the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa applied to the Oklahoma Statewide Virtual Charter School Board to open the St. Isidore of Seville Catholic Virtual School.
Nine Oklahoma residents and the Oklahoma Parent Legislative Action Committee—represented by a team of attorneys from the Education Law Center, Americans United for Separation of Church and State, the American Civil Liberties Union and the Freedom from Religion Foundation—filed a lawsuit to block Oklahoma from launching a religious charter school. The plaintiffs’ attorneys explain: “The plaintiffs are faith leaders, public school parents, and public education advocates who object to their tax dollars funding a public charter school that will discriminate against students and families based on their religion and LGBTQ+ status, fail to adequately serve students with disabilities, and indoctrinate students into one religion—all in violation of Oklahoma law and our country’s promises of the separation of church and state and public schools that are open to all.”
Even before anyone proposed opening an explicitly Roman Catholic statewide virtual charter school in Oklahoma, legal scholars had worried about what it would mean if any state proposed funding religious charter schools. Constitutional scholar Derek Black summarized the implications in a paper published in December, 2022 in the University of California Irvine Law Review: “A marriage of religion and state power in the form of public charter schools would practically, ideologically, and constitutionally transform public education as we know it. As a practical matter, religious schools will flood states with requests to convert into charter schools and thereby shift the cost of religious instruction onto taxpayers. Given the number of interested religious organizations, the impact on state public education budgets could be catastrophic. As an ideological matter, the existence of religious charter schools would eliminate the distinct mission and values that have long defined public schools. And as a constitutional matter, the federal and state constitutional rights that students currently enjoy in public schools would vanish.”
It would be naive, of course, to imagine that the emergence of a strategy to redefine the Constitutional separation of church and state and a scheme to permit public funding of religious charter schools just sprang up spontaneously. Quoting from the St. Isidore of Seville Catholic Virtual School website, Rachel Laser, president of Americans United for Separation of Church and State shows that the new school’s sponsors did not even feel obliged to understate the new school’s explicit religious mission: “(S)tudents must ‘appreciate and desire a robust Catholic education,’ and students and families must have a ‘willingness to adhere with respect to the beliefs, expectations, policies and procedures of the school.’ St. Isidore also said that it will operate ‘in harmony with faith and morals, including sexual morality, as taught and understood by the Magesterium of the Catholic Church based upon Holy Scripture and sacred tradition.’”
The idea for a charter school like St. Isidore of Seville Catholic Virtual School did not originate with religious activists in Oklahoma City and Tulsa. Last Friday, POLITICO‘s Heidi Przybyla identified the advocates who have been working for years to undermine church-state separation by permitting openly religious charter schools. Przybyla identifies Leonard Leo, co-chair of the Federalist Society, as “the financial architect” of a long and complex legal strategy: “Behind the effort to change the law are Christian conservative groups and legal teams who, over the past decade, have been beneficiaries of the billion-dollar network of nonprofits largely built by Leo… Leo’s network organized multi-million-dollar campaigns to support the confirmation of most of the court’s six conservative justices. Leo himself served as adviser to President Donald Trump on judicial nominations, including those of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.”
Leonard Leo ensured the mass of the dark money that has funded the Alliance Defending Freedom, the legal team representing the Oklahoma Statewide Virtual Charter School Board: “It is significantly funded by donor-advised funds that allow their patrons to keep their identities secret but which receive large amounts of money from Leo-aligned groups. They include Donors Trust, often called the ‘dark money ATM’ of the conservative movement. In recent years, Donors Trust has been the largest single beneficiary of Leo’s primary dark money group, the Judicial Education Project… Since 2020, when Leo received a $1.6 billion windfall from Chicago electronics magnate Barre Seid, among the largest contributions to a political advocacy group in history, other groups funded by Leo’s network have become substantial contributors to (the Alliance Defending Freedom) ADF.”
Leo also has close ties to the Notre Dame Religious Liberty Initiative, “a legal clinic created by the law school at the University of Notre Dame,” that is also representing St. Isidore. A Notre Dame, law professor, Nicole Stelle Garnett, helped the sponsors of St. Isidore develop its application and continues to work with the school’s sponsors. She recently joined the board of the Federalist Society. “The Notre Dame clinic’s director is another alumni of Leo’s network, Stephanie Barclay, an attorney who spent multiple years at another Christian legal nonprofit where Leo sits on the board: the Becket Fund for Religious Liberty.”
Several of the attorneys working to get St. Isidore’s up and running served as clerks for or have ties to Justices Neil Gorsuch, Sam Alito, Clarence Thomas or Amy Coney Barrett. Przybyla reports that, according to Brett Farley, executive director of the Catholic Conference of Oklahoma, “As St. Isidore and its allies readied for legal battle… Notre Dame brought in a corporate team at the law firm Dechert LLP, including Michael McGinley, who worked on selecting judicial nominees at the Trump White House at the time Leo was advising the president. McGinley clerked for Gorsuch when he was a 10th Circuit appeals judge and for Alito at the Supreme Court. He accompanied Gorsuch to his confirmation hearings. He is not employed by Notre Dame…. He is working ‘pro bono’ for St. Isidore…. Within Notre Dame, the effort’s biggest champion has been (Nicole Stelle) Garnett, (Amy Coney) Barrett’s friend of 20 years, former law school colleague and former neighbor. The two met in 1998 when Garnett was a clerk for Justice Clarence Thomas and Barrett for Justice Antonin Scalia.”
Przybyla quotes Robert Franklin, an Oklahoma Catholic and a member of the Oklahoma Statewide Virtual Charter School Board explaining why he voted against the approval of St. Isidore of Seville Catholic Virtual School: “‘It’s not about the 500 kids. The game is to get this to the Supreme Court… If the court approves this, it changes everything’ about public education in America… ‘It’s been extremely unsettling,’ said Franklin, noting that the state already has six virtual schools to serve children of all faiths and that some of the school’s biggest backers, including Oklahoma Gov Kevin Stitt, had previously bashed virtual learning as ineffective.”