The U.S. Supreme Court has taken several swings at the invisible wall separating church and state in public education. Two education cases being heard this month have the potential to either remove a few more bricks, or perhaps pull it down.
The legal maneuvers underpinning the lawsuits give the courts an opportunity to profoundly change America’s public schooling system. And, in a twist, opponents of one case include people who favor both religious schooling and public charter schools.
Last week, the nation’s high court heard oral arguments in a Maryland-based case, Mahmoud v. Taylor, where Muslim, Catholic, and Ukrainian Orthodox parents wanted to opt their children out of instruction featuring books with LGBTQ+ characters or themes. On Wednesday, the justices will hear oral arguments for a pair of consolidated cases – Oklahoma Statewide Charter School Board v. Drummond and St. Isidore of Seville Catholic Virtual School v. Drummond – that seek to establish the nation’s first religious charter school.
Why We Wrote This
As president, Thomas Jefferson coined the phrase “the wall of separation between church and state” regarding the First Amendment. Conservatives have long objected that it’s not part of the Constitution. A case before the Supreme Court could remove its remaining influence from public education.
The outcome of the cases, which raise questions pertaining to religious liberty and separation of church and state, could have far-reaching consequences. In one case, a majority of justices appear poised to give parents more leeway to opt out of curriculum they deem objectionable to their sincerely held religious beliefs.
“What I’ll be looking for is, how broad is the rule that they create? How expansive will these mandatory opt-outs be?” says Caroline Mala Corbin, a professor at the University of Miami School of Law. She is concerned that if it’s written too broadly, parents might pull children from classes with transgender classmates, or try to opt out of evolution in biology class. That would violate a different Supreme Court ruling.
“Are they going to limit them in some kind of way?” she asks.
The St. Isidore case, however, carries the most weight. It could direct taxpayer funding directly to faith-based schools, deviating sharply from voucher programs. Those give public money to parents, who can then apply it toward private tuition or other education settings.
On top of that, the case also poses a question that charter school supporters say could plunge the sector into an identity crisis. One issue before the justices is whether charter schools are, indeed, public schools. Their answer could upend how charters operate in the 46 states and Washington, D.C., where they exist.
The potentially landmark case comes at a critical juncture for the U.S. education system, which has been pulled into the crosshairs of partisan divides while also dealing with broad declines in students’ reading and math skills. President Donald Trump has already ordered the wind down of the federal Education Department.
Robert Kim, executive director of the Education Law Center, says it’s important to view the cases through the lens of broader “assaults on public education.” At stake, he says, is a robust system of free and public education open to all students, regardless of their background and other characteristics.
“This is what is all jeopardized when you have a country that wants to increasingly privatize education and sort of reverse the compact that we would have a system of free and open and secular schools,” he says.
Establishment clause vs. free exercise clause
To seasoned court watchers, these cases follow a trajectory that goes back years.
The Supreme Court under Chief Justice John Roberts has pushed back on the idea that a strict wall needs to separate church from state, particularly when it comes to public education. These two cases ask the court to continue pushing in that direction.
The First Amendment states that Congress “shall make no law respecting an establishment of religion,” while also not “prohibiting the free exercise” of religion. The two clauses are foundational to the American ideal of religious pluralism, but they are also often described as being in tension with one another.
This tension became more acute as a formal school system developed in the 19th century. Early public school systems excluded religious minorities – in many cases Catholics – which led to the growth of parochial schools. But in the decades after World War II, the Supreme Court issued a series of decisions holding that, with some exceptions, a First Amendment “wall” separated religious schools and the state.
The government could provide transportation for Catholic school students, for example. But a public school system could not authorize a daily prayer even if voluntary and nondenominational. In 1971, the court held that states could provide funds to parochial, private schools so long as the money has a secular purpose, neither promotes nor inhibits religion, and doesn’t foster “excessive government entanglement with religion.” That became known as “the Lemon test.”
In sum, that line of high court rulings upheld the view that allowing taxpayer money to flow freely to religious schools would represent an unconstitutional “establishment of religion.”
The Roberts high court has ruled – in several different contexts – that excluding religious schools from benefits accessible to public schools is discriminatory. The court has also held, in Kennedy v. Bremerton School District, that a public school district couldn’t prevent a football coach from praying on the field after games.
In other words, “what used to be unconstitutional is now constitutionally required,” says Vincent Phillip Muñoz, a professor of law and political science at the University of Notre Dame.
While previous courts ruled that the establishment clause required separating religion from public schools, the current court has ruled that doing so violates the free exercise clause.
Conservative justices “have been criticizing the court’s religious separation jurisprudence for the last 40 years,” adds Professor Muñoz. “All that’s different now is those justices have more than four votes.”
Two of those votes are Justices Neil Gorsuch and Brett Kavanaugh, both appointed during President Donald Trump’s first term. In 2020, they helped strike down a state school-voucher program that excluded religious schools. They struck down a similar program in a different case two years later. Six days after that second case, they nullified a religious separation doctrine they especially disliked. The three-pronged “Lemon test” the Supreme Court had created in 1971, they declared, was now “abandoned.”
Justice Amy Coney Barrett, also appointed by Mr. Trump, has recused herself from the St. Isidore case. If the justices end up in a 4-4 split decision, the Oklahoma Supreme Court’s ruling would stand.
Lindsey Wasson/The Seattle Times/AP/File
“Whose religious rights?”
Many are watching for how the two cases will define religious rights. “Part of the question might be, whose religious rights?” says Professor Corbin.
The Roberts court has been sympathetic to claims for exemptions based on religious liberty, she adds, but questions whether the same standard would apply to religious liberty claims based on non-Christian faiths.
“If we declare that charter schools are open to public funding, can you also have non-Christian charter schools? The answer is absolutely. And that was actually, I think, one reason the Oklahoma attorney general opposed it,” she says.
Gentner Drummond emphasized that point in a recent opinion piece published by The Oklahoman.
“As a committed Christian, the last thing I want is for my tax dollars to fund the indoctrination of arguably extreme or fringe religions that most Oklahomans and I would find objectionable or even offensive,” the state’s attorney general wrote. “That scenario is an inevitability, not hyperbole.”
St. Isidore’s opponents cite myriad concerns, such as starving traditional public schools of funding while pouring taxpayer dollars into schools that could discriminate against students and staff based on religious beliefs.
“We cannot have a segment of public schools that would not be subject to the same civil rights laws as other public schools,” says Mr. Kim of the Education Law Center.
Unintended consequences for charters?
And the expanding charter sector has existential worries if a ruling changes or muddies whether a charter school is considered a public school. St. Isidore and the Oklahoma Statewide Charter School Board are asking the Supreme Court to determine if a charter school is a “state actor” simply because it contracts with the state to provide a free education to interested students. In their petition to the high court, the plaintiffs argue the “‘public school’ label here cannot bear the constitutional load the court below places on it.”
The National Alliance for Public Charter Schools has waged a campaign to uphold their designation as public schools. The societal perception has been that charters are a more autonomous form of public school that receives taxpayer funding and follows certain accountability measures. But they operate independently in the name of innovation and experimentation.
Charter supporters say suddenly changing their definition could create chaos, given state constitutional bans on public funding for private schools.
“To allow a religious charter school, the Court would be redefining charter schools as private, thereby putting charter school funding at significant risk and dramatically reducing access to school choice for millions of families across the country,” Starlee Coleman, president of the National Alliance for Public Charter Schools, said in a statement Monday. “The implications of this case reach far beyond any individual school, and we urge the Supreme Court to follow the law and preserve charter schools as a public school option.”
The Alliance Defending Freedom, which is arguing on behalf of St. Isidore, disagrees – contending that religious charter schools will expand education options.
“Oklahoma parents and children are better off with more educational choices, not fewer,” ADF’s chief legal counsel, Jim Campbell, said in a statement in January. “There’s great irony in state officials who claim to be in favor of religious liberty discriminating against St. Isidore because of its Catholic beliefs.”
For his part, Mr. Drummond, a Republican who sent his own children to a private Christian high school, calls the threat the case poses to religious liberty “grave.”
“Religious liberty means every citizen is free to worship as he or she believes,” he wrote in The Oklahoman. “Religious liberty does not mean the government should fund religious teachings.”
Decisions in both cases are expected in June.
