Jan Resseger considers the question that will hang in the air till later this year– is the Supreme Court ready to tear down the wall between church and state? Reposted with permission.
Last week, the U.S. Supreme Court heard oral arguments in Oklahoma Statewide Charter School Board v. Drummond, a case testing whether religious charter schools are constitutional under the First Amendment, which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Background on Oklahoma Statewide Charter School Board v. Drummond
The case hinges on the question of whether charter schools are public schools, which under the First Amendment’s Establishment Clause, may not promote or establish any particular religion, or whether they are private schools, which under a recent series of U.S. Supreme Court decisions that prioritize the Free Exercise Clause, can be religious and accept publicly funded tuition vouchers. In a recent NY Times analysis, Adam Liptak quotes University of Virginia law professor, Douglas Laycock, framing the question: “Is a charter school a public school with private management, or is it a private school with public funding?”
The case the Supreme Court justices heard yesterday was an appeal of the Oklahoma Supreme Court’s finding last June that the nation’s first proposed religious charter school is unconstitutional. The lawsuit was originally filed by Gentner Drummond, the Attorney General of Oklahoma, versus the Oklahoma Virtual Charter School Board, which had approved the religious charter school in 2023. The school was to be operated by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa. Education Week‘s Mark Walsh describes the school’s application for approval by the state’s Virtual Charter School Board: “(T)he application says the school’s purposes, activities, programs, and affairs will operate ‘in harmony with faith and morals, including sexual morality, as taught and understood by the Magisterium of the Catholic Church based on Holy Scripture and Sacred Tradition.’” After Drummond filed the lawsuit, the Oklahoma Supreme Court declared the establishment of St. Isidore of Seville Catholic Virtual Charter School unconstitutional under the provisions of the Oklahoma Constitution and the U.S. Constitution’s Establishment Clause.
This case did not arrive at the U.S. Supreme Court by accident. In a series of cases, far-right law firms have recruited plaintiffs in lawsuits designed to undermine the Establishment Clause protection of the separation of church and state and expand the meaning of the First Amendment’s Free Exercise Clause. The Alliance Defending Freedom brought a lawsuit, Trinity Lutheran Church of Columbia, Inc. v. Comer, in which the U.S. Supreme Court, in 2017, decided, under the Free Exercise Clause, that the state of Missouri could provide funding for a shredded rubber tire foundation for a playground at a religious institution, Columbia, Missouri’s Trinity Lutheran Church. Soon after that, the Institute for Justice, representing the plaintiffs, litigated Espinoza v. Montana, a school tuition voucher case, in which, in 2020, the U.S. Supreme Court decided that if the state awards vouchers to private schools, it cannot discriminate against a religious private school based on its religious status. The Institute for Justice subsequently represented the plaintiffs in Carson v. Makin, a case which, in Maine in 2022, the U.S. Supreme Court found that if the state awards vouchers to private schools, it cannot discriminate against a religious private school based on its religious practice.
The Washington Post‘s Justin Jouvenal and Laura Meckler quote Justin Driver, a professor of law at Yale University commenting on how quickly, under the John Roberts Supreme Court, a campaign of intentional litigation brought by advocates has redefined the meaning of the First Amendment—to lift up the protection of free exercise of religion and undermine protection of the separation of religion and government: “The goal posts in this constitutional area have moved incredibly far, incredibly fast… Even a decade ago, the notion that states would be required to recognize religious charter schools was not at all a mainstream view…. There is a certain sense of whiplash here.”
In the current federal appeal, the NY Times‘ Linda Greenhouse points out that once again, the Alliance Defending Freedom is involved—representing the Oklahoma Charter School Board, which approved St. Isidore of Seville’s application to open. The school itself, St. Isidore of Seville Catholic Virtual Charter School, is being represented by Notre Dame Law School’s Religious Liberty Clinic.
The Supreme Court heard oral arguments in the Drummond case yesterday. What will the decision mean? In her recent NY Times report, Greenhouse addresses that question: “(The) case… merits more attention than the little it has received, given its destabilizing potential for public education. The central question is whether a state that allows charter schools as alternatives to traditional public schools, as nearly all states do, must agree to fund those that are explicitly religious. To emphasize: The court is not being asked to decide whether a state may, if it chooses, include a taxpayer-funded parochial school among its charter school offerings. That question alone would challenge the long-held understanding of the separation of church and state in the context of public education. This case goes further. It concerns what would be the first fully taxpayer-supported religious school in modern American history. The internet-based “virtual” Catholic school that the Archdiocese of Oklahoma City and the Diocese of Tulsa seek to operate, St. Isidore of Seville Catholic Virtual School, would promote the “evangelizing mission of the Church.” The question is whether the Constitution requires Oklahoma to permit the school to open its virtual doors as a public charter school.
Greenhouse concludes: “If the justices deem it sufficiently private to evade the Constitution’s reach, they will have invited further fragmentation of public education, one of the few experiences that most Americans share. At this fraught moment for the court and the country, it may not be too much to suggest that the future of an increasingly fragile civil society is at stake as well.”
There were a number of amicus briefs filed as the U.S. Supreme Court prepared to hear this case. Advocates for religious liberty, including the Baptist Joint Committee for Religious Liberty, Central Conference or American Rabbis, Evangelical Lutheran Church in America, General Synod of the United Church of Christ, Interfaith Alliance, Presiding Bishop of the Episcopal Church, Muslim Public Affairs Council, National Council of Jewish Women, Union for Reform Judaism and several additional amici wrote: “Though they represent different faith traditions, amici all believe that government sponsorship of religion endangers, rather than enhances, religious liberty. In amici’s view, religion flourishes best when it is supported voluntarily and privately—not sponsored by the state with public funds. Amici thus have a strong interest in preserving the constitutional principle that religious and civil institutions must remain distinct. That structural boundary—rooted in the Founding and reaffirmed across generations—safeguards both the integrity of religious communities and the legitimacy of the state.”
The Education Law Center, for a coalition of amici including the Oklahoma Parent Legislative Advocacy Coalition, Americans United for Separation of Church and State, the American Civil Liberties Union, and the Freedom from Religion Foundation stated: “The law is clear. Charter schools are public schools and must be secular and open to all students. The Oklahoma Supreme Court correctly found that the state’s approval of a religious public charter school was unlawful and unconstitutional. We urge the U.S. Supreme Court to affirm that ruling and safeguard public education, church-state separation, and religious freedom for all.
What Did We Learn from the Justices Yesterday During Oral Arguments?
In their report earlier this week, the Washington Post‘s Jouvenal and Meckler prepared readers for the case of Oklahoma Statewide Charter School Board v. Drummond to be decided by only eight justices. Justice Amy Coney Barrett recused herself from this case due to her friendship with staff at the Notre Dame Law School’s Religious Liberty Clinic: “Barrett’s recusal means only eight justices will vote on the legality of St. Isidore’s.” What will her recusal mean? “The three liberals are widely expected to see the school as unconstitutional. A 4-4 tie would keep the State Supreme Court’s rejection of the school in place.”
As oral arguments concluded just after noon yesterday, experienced court watchers noted that Chief Justice John Roberts did not explicitly tip his hand in favor of St. Isidore’s approval, as did Justices Brett Kavanaugh, Neil Gorsuch, Sam Alito and Clarence Thomas, but neither did he appear strongly opposed to the school’s opening. Ketanji Brown Jackson, Elena Kagan, and Sonya Sotomayor strongly opposed the opening of a religious charter school paid for and regulated by the state.
The NY Times’ Adam Liptak analyzes what he heard in the oral arguments: “The Supreme Court appeared open on Wednesday to allowing Oklahoma to use government money to run the nation’s first religious charter school, which would teach a curriculum infused by Catholic doctrine… The justices appeared to be divided along the usual ideological lines, with the court’s Republican appointees largely sympathetic to the school and its Democratic ones quite wary. But Justice Amy Coney Barrett was recused, raising the possibility of a tie vote if a single Republican appointee joined the three Democratic ones. That would leave a state court decision rejecting the school intact. Chief Justice John G. Roberts Jr., who asked questions supportive of both sides, seemed to be the most likely member of such a potential alliance. In earlier cases from Maine and Montana, the court ruled that states that decide to create programs to help parents pay for private schools must allow them to choose religious ones. Those decisions, Chief Justice Roberts said, ‘involved fairly discrete state involvement’ while Oklahoma’s supervision of the new school ‘does strike me as much more comprehensive involvement.’ Later in the argument, though, he suggested that another of the court’s decisions required allowing the school.”
The Washington Post‘s Justin Jouvenal, Ann Marimow, and Laura Meckler are skeptical that Roberts would align with the three liberal justices: “A divided Supreme Court on Wednesday appeared open to allowing the creation of the nation’s first public religious charter school in Oklahoma…. The change could have vast—and unpredictable—implications for the nation’s parochial and traditional public schools alike, and would probably spark efforts to create similar schools in other states… During oral arguments Wednesday over the legality of St. Isidore, sharp ideological differences emerged among the justices While all three liberal justices expressed deep skepticism about a religious charter school, there was no clear indication that any conservative members of the court would join with them in voting against the school… Chief Justice John G. Roberts Jr., who is almost always in the majority in the most significant cases, asked probing questions of both sides.”
Scotusblog‘s Amy Lutz concludes: “The Supreme Court on Wednesday was divided over a Catholic virtual charter school’s bid to become the country’s first religious charter school. With Justice Amy Coney Barrett recused from the case, the outcome appeared to hinge on the vote of Chief Justice John Roberts, who asked probing questions of both sides but did not make his position clear… The school and the board appeared to have four votes—Justice Clarence Thomas along with Alito, Gorsuch, and Kavanaugh. Whether the chief justice will join them to overturn the Oklahoma Supreme Court’s decision seems possible, but remains to be seen.”
I listened myself to the oral arguments for over two hours yesterday morning. I heard Justices Katanji Brown Jackson, Elana Kagan, and Sonya Sotomaior raise serious concerns that a religious public charter school would violate the separation of church and state, and I heard Oklahoma Attorney General Gentner Drummond’s attorney define the key issue in the case as whether charter schools are public or private. From the conservative justices, however, I heard a lot of discussion fade into in the weeds comparing charter schools to other types government service contracting but no clear willingness on the part of the conservative justices to answer the central question directly: Are charter schools public schools, and if so, doesn’t the Establishment Clause block the creation of a religious public school?
If the justices decide in favor of permitting St. Isidore of Seville Catholic Virtual Charter School to open, the U.S. Supreme Court will have determined either that charter schools are in fact not public schools or that the First Amendment no longer prohibits religious public schools.