In modern America, religious education is offered in private schools or in a homeschooling setting. Public education, by contrast, is secular, because the government is not in the business of sponsoring religious indoctrination.
But
in two cases the Supreme Court heard over roughly the last week, the justices appear
ready to throw out public education as we know it and usher in a new era where
tax dollars flow to religious schools and religion can dictate what is taught
in public classrooms. When the decisions come down, public education may change
forever.
“This
is taxpayer-funded, state-sponsored religious indoctrination. You’ve just got
to call it what it is.”
On
Tuesday, the justices heard arguments in Oklahoma Statewide Charter
School Board v. Drummond, a case over whether Oklahoma must
fund a religious charter school that carries out religious instruction and
hosts religious activities, including mass. Rather than consider this an
affront to the separation of church and state, four Republican-appointed
justices appeared outraged at the idea that a state would fund a charter school
focused on language immersion or the arts but not one focused on religious
instruction.
Without
ever acknowledging that the First Amendment’s establishment clause
(“Congress shall make no law respecting an establishment of religion”)
prohibits government-sponsored religion, several expressed palpable anger that
allowing only secular charter schools was a form of anti-religious
discrimination.
“All the religious school is saying is ‘Don’t exclude us on account of our religion,’” Justice Brett Kavanaugh said. “If you go and apply to be a charter school and you’re an environmental studies school, or you’re a science-based school, or you’re a Chinese immersion school, or you’re an English grammar-focused school, you can get in. And then you come in and you say, ‘Oh, we’re a religious school.’ It’s like, ‘Oh, no, can’t do that, that’s too much.’ That’s scary.” He continued: “You can’t treat religious people and religious institutions and religious speech as second-class in the United States… And when you have a program that’s open to all comers except religion… that seems like rank discrimination against religion.”
The
case comes out of
Oklahoma, where state law mandates public charter schools be secular. Nevertheless, the Catholic archdiocese of Oklahoma City and the diocese of
Tulsa sought to create the country’s first religious charter
school. Called St. Isidore of Seville Catholic Virtual School, it would be an
online school that would infuse Catholic teaching in its curriculum and require
students to attend religious programming.
The
Oklahoma Statewide Virtual School Board granted the charter, but Oklahoma’s
Republican attorney general, Gentner Drummond, asked the Oklahoma Supreme Court
to order the board to reverse course. “This is not [about] free exercise of
religion,” Drummond has said.
“This is taxpayer-funded, state-sponsored religious indoctrination. That’s what
this is. You’ve just got to call it what it is.”
The Oklahoma Supreme Court agreed that the charter was illegal because Oklahoma law requires public charter schools be secular. So, the board and St. Isidore appealed to the US Supreme Court. Justice Amy Coney Barrett recused herself because she is friends with a law professor who advised the school.
The result
at Wednesday’s oral argument was four GOP-appointees who appeared ready to
usher in a new era of religious public schools, and three Democratic-appointees
who opposed such a move. Chief Justice John Roberts was the only Republican
appointee who did not tip his hand, though his questions showed he was
skeptical of the argument against religious charter schools.
The
arguments technically centered on whether public charter schools
are indeed public schools or private entities. If they are public, as Oklahoma
law defines them, then the guarantee against the establishment of religion is a
stronger argument. But if the schools are actually private, as St. Isidore’s
insists—along with the charter board and the Trump administration—then it is
harder to argue that private religious entities should not be entitled to the
same charter contracts as any other organization.
Whether
they are public or private, however, the bottom line is that charter schools
are taxpayer funded, which means the argument is more broadly over public
funding of religious education and whether to integrate religious instruction
into state education offerings. “Once you… approve one religion, not another
religion, or this religion, there’s going to be strife.”
Justices
Kavanaugh and Samuel Alito were the most vociferous defenders of the Catholic
charter school, repeatedly suggesting that the only reason one might deny a
religious institution tax funding to run a school is anti-religious bigotry.
Alito went so far as to suggest that the Oklahoma constitution’s requirement to
provide a secular public education was based on anti-Catholic animus. “This
whole position that you’re defending seems to be motivated by hostility toward
particular religions,” Alito said to Gregory Garre, a former US solicitor
general representing Drummond.
Garre
pushed back. “I don’t think that the court could treat any prohibition on
funding that’s similar as simply motivated by bigotry,” Garre said. “If you
did, then I think, frankly, the establishment clause jurisprudence with respect
to public schools would come tumbling down.”
Listening
to arguments, it seems possible that’s what Alito and some of his colleagues
want. In recent years, the court’s GOP majority has increasingly removed the
bricks separating church and state, including in the realm of schools.
While
the Constitution’s establishment clause used to protect separation,
conservative justices seem to have decided that the free exercise clause
mandates the state can do nothing to maintain it—freedom of religion is
increasingly the freedom to bring religion into every corner of American life,
including public education.
Alito
also suggested that Drummond was motivated by bias against non-Christian
religions because of comments in which he suggested Oklahomans might approve of
Christian charters but not charters by religions that the majority views with
suspicion.
Garre
defended his client as simply stating the political reality of state-sponsored
religious instruction: “Once you open up government programs and bring people
in to becoming part of the government, and approve one religion, not another
religion, or this religion, there’s going to be strife that comes from that,”
he said. “It’s, frankly, one of the reasons why we have a religion clause in
the Constitution to begin with.”
Kavanuagh
pounced on Garre’s suggestion that the government picking and choosing which
religions got public charter schools could create “strife.” “It seems like
strife could also come when people who are religious feel like they’re being
excluded because they’re religious,” he told Garre. “I think you’re missing a
portion of the country when you say strife would not result from that kind of
outcome.”
As
Kavanuagh’s comment demonstrated, the Republican-appointed justices seemed to
feel that in America today, it is religious people who are the victims of
discrimination and whose needs are ignored.
The
Democratic appointees approached
the case very differently. They seemed to squarely see public charter schools
as public schools and that Oklahoma had the right to decide that its public
schools should be nonreligious. Justices Sonia Sotomayor and Ketanji Brown
Jackson analogized the situation to a local government that solicits contracts
to paint landscape murals on public buildings.
If
a religious painter proposed a mural full of religious symbols, Jackson
queried, would it be a violation of his religious rights for the government to
deny him a contract? “Would that person say, ‘You are rejecting me as a painter
because of my religion’… when, really, what the state is doing is saying ‘We
are offering a particular public benefit and the particular benefit is a
nonsectarian mural, a secular mural, and to the extent that you’re not wanting
that, we’re rejecting your proposal?’”
The
court is poised to deliver a one-two punch that profoundly changes public
education.
Justice
Elena Kagan stressed that in keeping with their faith, religious charter
schools might not just teach religious beliefs as fact but also seek to upend
state-mandated curriculums and nondiscrimination requirements. Today, St.
Isidore’s might promise to teach the content required by Oklahoma law. But why
couldn’t a Hasidic community in New York get the state to pay for a yeshiva
that teaches only religious texts in Yiddish, Hebrew, and Aramaic? The attorney
for St. Isidore’s couldn’t deny the possibility.
Kagan
later asked Garre to share what he predicts would happen if the Supreme Court
found that states must allow religious charter schools—essentially ushering in
an era of public religious schools.
“First,
every charter school law and the federal charter school program is
unconstitutional, because they all require that charter schools be public
schools and that they be nonsectarian. So, we’re dealing with the confusion and
uncertainty that’s created by that to begin with.” From there, Garre predicted
some states might end charter programs altogether, disrupting education, while
others would push forward and accommodate religious charters.
He
foresaw fights over whether federal law mandating education for disabled kids
would apply to charters deemed to be private. Every aspect of this
new education regime would go through the Supreme Court. He predicted
litigation over which students can attend, who can teach [“can you have a gay
teacher?”], and finally, over the curriculum itself. Questions over what can be
taught will be mediated not through the local democratic process but through
nine Supreme Court justices.
This
case alone will be a
bombshell if the court mandates that states begin funding religious schools
through their charter school programs. But this term, the Supreme Court is
poised to deliver a one-two punch. Last week, the court heard arguments
in Mahmoud
v. Taylor, in which it considered whether religious parents could opt
their kids out of lessons that did not conform with their beliefs.
Again,
the GOP-appointed majority appeared ready to side with the plaintiffs and
allow religious parents to pull kids from the classroom when material they
object to is taught—a policy that threatens to
create a backdoor through which religious parents have veto power over elements
of the curriculum and classroom discussion.
In
any school that cannot accommodate children leaving the classroom and being
provided alternate materials, the religious preferences of a minority seem
destined to dictate the curriculum for all. The likely result is the wide
elimination of LGBTQ content. Teachers may fear answering a question about a
gay politician, for example, or even displaying a picture of their same-sex
partner on their desk.
If
the justices decide in the next few months to allow religious opt-outs in
public schools and the creation of religious charter schools, it’s hard to see
how public education will not change profoundly. In many districts, together
the decisions would likely mean the only publicly funded school
options would be either explicitly religious or circumscribed by the religious
preferences of certain parents.
Donald
Trump, whose administration has argued for the religious interests in both
cases, has ordered the
shuttering of the Department of Education and threatened to
withhold funding to schools that engage in diversity, equity, and inclusion
programming. But the president’s ability to direct public school curriculums is
limited, because public education is primarily controlled at the state and
local level.
The
Supreme Court, on the other hand, can dramatically reshape public education,
reaching across geographic boundaries to make decisions for individual
districts and schools. When it comes to the religious right’s agenda of
returning religion to public classrooms, it’s not the administration that is to
be feared the most, but the Supreme Court.
-Pema
Levy, Mother Jones
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