Why the Supreme Court might allow publicly funded religious schools

The U.S. Supreme Court on Wednesday heard arguments in a potentially seismic case on education funding. Originally a state matter in Oklahoma about a proposed religious charter school, its outcome could impact state education funding nationwide.

If justices rule in favor of charter schools, Iowa could see another expansion in educational choice, even beyond recent reforms including our own charter school laws and the pièce de résistance of school choice: Education Savings Accounts.

Petitioners in Oklahoma Statewide Charter School Board v. Drummond are Oklahoma’s state board for charter schools and St. Isidore of Seville, a virtual Catholic charter school in Oklahoma City that was preparing to open for the current school year before the state charter school board was forced to rescind its contract.

Oklahoma’s 1999 charter school law requires that a charter school cannot be “affiliated with a non-public sectarian school or religious institution.” But in light of three recent Supreme Court rulings — all of which held that it violates the U.S. Constitution’s Free Exercise Clause for a state to prohibit religiously affiliated schools from participating in otherwise neutral publicly-funded programs — the Board had sought an opinion in 2022 from then-Oklahoma Attorney General John O’Connor as to whether it should continue to enforce the “nonsectarian” part of the law.

After reviewing the recent Supreme Court rulings, O’Connor advised that the nonsectarian requirements should not be enforced. St. Isidore was approved as a public charter school in June 2023.

But not five months after St. Isidore was approved, a new attorney general, Gentner Drummond, filed suit with the Oklahoma Supreme Court. Citing violations of the Oklahoma Constitution, the 1999 charter school law and the Establishment Clause of the U.S. Constitution, Drummond asked the court to instruct the charter school board to cancel its contract with St. Isidore.

The court sided with Drummond, finding that as a charter school, St. Isidore would be a “state actor” and “government entity” which “cannot ignore the mandates of the Establishment Clause” by acting as a Catholic school at the same time.

Believing that the exclusion of St. Isidore from the charter program based on its religious affiliation was in violation of the Free Exercise Clause, the charter school board and St. Isidore petitioned the U.S. Supreme Court for review, which the Court granted in January.

Now, the Supreme Court examines two questions very similar to the ones debated by the Oklahoma Supreme Court.

The first, stated verbatim, is “[w]hether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students.”

In short, does a religious school become an extension of the state just by contracting with the state to provide services?

Before the Supreme Court, that question is limited to religious schools. Jurists in the court of public opinion, however — that is, all of us — would do well to consider that in the grand scheme of government. What would it mean if we considered organizations such as Lutheran Services in Iowa an extension of state government because of its contracts with the state for services such as foster care and refugee resettlement?

The second question, again stated verbatim, is “[w]hether a state violates the Free Exercise Clause by excluding privately run religious schools from the state's charter-school program solely because the schools are religious, or whether a state can justify such an exclusion by invoking anti-establishment interests that go further than the Establishment Clause requires.”

In a clash between two constitutional clauses listed right at the top of the Bill of Rights, which should prevail? The Establishment Clause that says government can’t establish a state religion, or the Free Exercise Clause that says government can’t stop you from practicing your own?

Recent Supreme Court cases on public dollars for private schools suggest the latter. Three in particular:

After a Missouri church with a licensed preschool was denied a grant from the state DNR to resurface its playground on the grounds that the Missouri Constitution prohibits the expenditure of money “in aid of any church, section or denomination of religion,” the Supreme Court ruled in Trinity Lutheran Church, Inc. v. Comer that excluding otherwise qualified churches from public benefits solely because they are churches violates the Free Exercise Clause. Two of the Court’s liberal justices joined the majority.

In 2020, the court stated in Espinoza v. Montana Department of Revenue that once a state decides to subsidize private education in any way, “it cannot disqualify some private schools solely because they are religious.” Montana’s high court had gone as far as to dismantle a scholarship program for private school tuition funded by donations eligible for tax credits because the program was required to allow the scholarships to be used at religious schools.

And in Carson v Makin in 2022, the Court ruled in favor of several rural Maine parents who were otherwise entitled to tuition assistance at an accredited private school but denied because the schools of their choice had a religious affiliation. The Court found that “Maine’s ‘nonsectarian’ requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause.”

Granted, those cases all involved private schools. St. Isidore and the Oklahoma charter school board, on the other hand, are advocating for the nation’s first religious charter school — a privately owned and operated school nevertheless considered a public school in that it receives funding directly from the state.

The impending ruling is not necessarily a slam dunk. Justice Amy Coney Barrett’s recusal leaves the case to be decided by eight justices, with Chief Justice John Roberts the swing vote. Should Roberts side with the liberal bloc, a 4-4 deadlock would mean the Oklahoma Supreme Court’s ruling against St. Isidore would stand.

But if St. Isidore and the Oklahoma charter school board succeed? It could mean a nationwide precedent overturning every other state law limiting charter schools to non-religious organizations — including that in Iowa, where Iowa Code 256E.7 requires that charter schools “[o]perate as a nonsectarian, non-religious school.”

If the Supreme Court says that charter schools can’t be blocked by a state because of a religious affiliation, the newest option for school choice in Iowa would be buoyed by a 2024 law offering grants of up to $500,000 for the startup of new charter schools.

Would opponents of Education Savings Accounts object any less to students using their state per-pupil allotment at a religious charter school than they have so far to those dollars being used at a religious private school?

No way. I seem to recall that they didn’t support the 2021 charter school expansion even for strictly nonsectarian schools. The list of lobbyist declarations is telling.

If anything, we’d see the same arguments from when ESAs were first signed into law, such as, “Public funds for religious schools is unconstitutional!”

That’s not accurate, of course, but if the growing list of Supreme Court precedent hasn’t made that clear by now, I doubt anything else will.

One other golden argument is the claim that school choice proponents envisioning Christian mega-schools will regret pushing ESAs when tax dollars are used for Islamic-centered schools. Gosh, even the Satanic people could open up a school funded with taxpayer dollars!

It doesn’t resonate. Iowa already had a Muslim private school before ESAs became law in 2023. Another plans to open in Coralville. Like the first, it is fully accredited and will encourage students to use an ESA to manage their tuition. School choice advocates are A-OK.

As for Satanists opening up a public charter or private school? If they can find enough people who seek an education imbued with scary-looking goat man values, have at it. Of course, they have to recruit enough talented teachers and competent administrators who believe in that mission in order to fulfill the whole “quality education” aspect. (And students. They need students, too.)

That’s the great thing about school choice. When parents decide where the dollars are spent, the market it creates determines pretty quickly what works and what doesn’t — whether that’s a charter school, a public school district with open enrollment interest or a private school where parents can use an ESA. When parents and students choose where to go, good programs get better and bad programs get gone. It’s almost as if all along the intent behind these controversial education reforms was a good education.

Comments: 319-398-8266; althea.cole@thegazette.com