The U.S. Supreme Court hears arguments Wednesday in a case that could transform public education in the Unites States. For the first time, the justices are being asked to decide whether overtly religious schools may be publicly funded charter schools.
Like 45 other states, Oklahoma has enacted a charter school system to allow some schools more flexibility, autonomy and specialization.
Under both the state and federal laws, charter schools are defined as public schools. They are established by the state, funded by the state, closely supervised by the state and can be unilaterally closed by the state. And most importantly for Wednesday's case, charter schools by law must be non-sectarian.
Enter St. Isidore of Seville Catholic School and two Catholic dioceses that tried to establish a virtual charter school for Oklahoma City and Tulsa. The school had the backing of the state school superintendent, but the Oklahoma Supreme Court ruled that allowing religious schools to become charter schools would violate both the state and federal constitutions.
St. Isidore appealed to the U.S. Supreme Court, and on Wednesday the school's lawyer, James Campbell, will tell the justices that by excluding religious schools from the charter system, the state is discriminating against religious adherents.
"You can't create a public program and then just simply say that no religious organization can apply," he says.
Campbell maintains that by allowing religious organization into the charter program, the state would create what he calls "a true choice" program.
As he puts it, "The only way that a child attends an Oklahoma charter school is if the parents choose to send them there."
But the state counters that the First Amendment specifically bars any state establishment of religion, and there is no doubt that St. Isidore would be imbued with the Catholic faith. The school would, in its own words, serve as a "genuine instrument of the church" and "participate in the evangelizing missions of the church," including teaching the faith to students, requiring them to attend mass, and to "adhere to the belief" that "Christ is present in the holy Eucharist."
The Oklahoma Supreme Court said that would put the school directly at odds with a series of landmark Supreme Court decisions that bar religious prayer and instruction in public education.
Opposing St. Isidore is the Republican Attorney General of Oklahoma, Gentner Drummond, who argues: "Religious liberty is really the freedom to worship. It is not taxpayer-funded, state-sponsored religious indoctrination."
The drafters of the federal and state constitutions, he says, "wisely understood how best to protect religious freedom by preventing the state from sponsoring any religion at all."
St. Isidore and its lawyer have a different view.
"The Supreme Court has been clear that when you create these neutral programs and open it up for all to apply, that there isn't any sort of endorsement of religion because religious groups can apply [and] non-religious groups can apply," says Campbell. "The money is flowing as a result of the parent's private choice to choose a charter school."
"St. Isidore has tried to have it both ways," counters lawyer Gregory Garre, who will represent Oklahoma in the Supreme Court Wednesday.
He will tell the justices that St. Isidore wants to have all the funding benefits of a public school without the obligation not to discriminate in hiring, firing or requirements for students. The state has maintained that it will accept all comers, he observes, but "its own handbook is very clear that students must subscribe to the school's… requirements, and those include not only respecting the Catholic faith as truth but in some instances, actually attending Mass."
Drummond adds that if the Catholic Church, in the garb of charter schools, can get millions of dollars in public funding for their overtly religious mission, there will be many unintended consequences. If the Catholic church is free to indoctrinate charter students in Catholic doctrine, he says, "substitute satanic beliefs, Wiccan, Muslim, Sharia, Jewish — whatever you want to substitute."
In other words, it won't be just Christian groups that want public funding for their charter schools.
That said, there is one practical fly in the judicial ointment of this case. With the court closely divided on some religious questions, Justice Amy Coney Barrett, a staunch advocate of religious rights, has recused herself from the case, without explanation.
The likely reason is that she is close friends with Notre Dame law professor Nicole Garnett, who was an early legal advisor for St. Isidore; both Garnett and her husband remain faculty fellows at Notre Dame's Religious Liberty Clinic, which represents St. Isidore.
Justice Barrett's absence from the bench could lead to a tie vote on the court. That would automatically uphold the existing Oklahoma Supreme Court decision, and proponents of religious charter schools would have to start looking for another test case.
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