A new Supreme Court case would force the government to create religious public schools 

The Supreme Court announced on Friday that it will hear two cases that are likely to revolutionize the relationship between church and state, at least in the context of public schools.

The state supreme court ruled that it is unlawful for the state to fund a religious public school. In its decision, the state court said that the ruling stemmed both from longstanding federal constitutional principles protecting the separation of church and state and the Oklahoma Constitution, which forbids the use of “public money ... for the use, benefit, or support of any sect, church, denomination, or system of religion.”

It is likely, however, that the US Supreme Court’s Republican majority, which has ruled that states must fund religious education in some contexts, will extend those previous decisions to require Oklahoma to fund this religious school. That would likely mean that nearly every state will have to fund public religious schools similar to St. Isidore, a scenario that would fundamentally alter public education in the United States. While the Court has supported some government funding of private schools in the past, it has never endorsed a public religious school.

The Court said in Carson v. Makin (2022) that states “need not subsidize private education,” and that states may “provide a strictly secular education in its public schools.” But Carson also held that, when a state offers vouchers to help families pay for private education, “it cannot disqualify some private schools solely because they are religious.”

In the St. Isidore cases, both the school and Oklahoma’s charter school board essentially ask the Supreme Court to extend Carson to charter schools — which, unlike the private institutions at issue in Carson, are public schools that are subject to significant state control.

As Oklahoma’s Supreme Court explained in its opinion, charter schools in that state are “subject to the same academic standards and expectations as existing public schools.” They “must comply with the same rules that govern public schools on school-year length, bus transportation, student testing, student suspension, and financial reporting and auditing.”

They also must comply with other rules that apply to all public schools in Oklahoma, including the requirement that they must be “equally free and open to all students as traditional public schools.”

Currently, charter schools exist in 45 states plus the District of Columbia. An extension of Carson would force these states to decide whether to shut down all of their existing charter schools, or to keep them and start funding schools like St. Isidore — they would no longer be allowed to host charter schools if those schools were exclusively secular.

Realistically, states that already have a significant number of charter schools are unlikely to shut them down. Few elected officials will want to deal with the political backlash that will come if they close existing charter schools that already serve thousands of students.

That will leave these states with only one other choice: Allow religious public schools to open in their state.

For many decades, the idea that Oklahoma is allowed to fund a religious school — much less that it is required to do so — was considered anathema to the Constitution. As the Supreme Court said in Everson v. Board of Education (1947), “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”

Those days are now gone. Carson is quite clear that, at least in some circumstances, states are constitutionally required to fund religious education. The Court, in other words, has turned Everson completely on its head.

In the now-dead regime, when the Court closely policed the boundary between church and state, the Constitution’s command — known as the establishment clause — that there shall be no laws “respecting an establishment of religion” was understood to protect three values that often come up in the context of public schools.

The first was a pluralistic value system that sought to, in the words of Allegheny County v. ACLU (1989), “preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.” As Justice Sandra Day O’Connor wrote in an influential concurring opinion in 1984, when the government endorses one religious belief over another, it tells “nonadherents that they are outsiders, not full members of the political community” while simultaneously telling “adherents that they are insiders, favored members of the political community.”

But this concern that the government should not tell nonbelievers and members of minority faiths that they are outsiders in their own community is dead in the Roberts Court. In Kennedy v. Bremerton School District (2022), the Court’s Republican majority repudiated its past precedents warning about government endorsements of religion. It appears that the government is now free to actively promote one religious faith over another.

The second value system that used to animate the Court’s establishment clause cases is a ban on government actions that seek to coerce someone into religious activity. This rule against coercion still plays some role in the Roberts Court’s cases. In Bremerton, for example, the Republican justices agreed that the government “may not coerce anyone to attend church,” and that it may not “force citizens to engage in ‘a formal religious exercise.’”

It is unclear, however, whether the Court will still enforce this ban on coercion against the subtle forms of coercion that sometimes arise in public schools, or whether it will read this ban narrowly to prohibit only laws and policies that directly force children to participate in someone else’s faith.

In Lee v. Weisman (1992), for example, the Court split 5-4 on how to apply this anti-coercion principle to school-sponsored prayer. In Lee, a public school invited a rabbi to deliver a prayer at its graduation ceremony. Writing for the majority, Justice Anthony Kennedy concluded that such a ceremony subtly coerces students into participating in that prayer.

“The undeniable fact,” Kennedy explained, “is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction.” Such pressure, “though subtle and indirect, can be as real as any overt compulsion,” as it leaves a young nonadherent with “a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow.”

Four justices, however, joined a dissent by Justice Antonin Scalia, which mocked Kennedy’s concern about subtle religious coercion as “precious.” According to Scalia, the only kind of religious coercion forbidden by the Constitution is “coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” So, as long as a public school does not actively punish a student who refuses to participate in a prayer or other state-sponsored religious exercise, it is free to host that prayer.

It’s unclear where each of the current justices will fall on this divide between Kennedy and Scalia. But the Bremerton opinion, which cites favorably to Scalia’s Lee dissent and which suggests that James Madison only understood the Constitution “to prevent one or multiple sects from ‘establish[ing] a religion to which they would compel others to conform,’” suggests that the Court’s Republican majority prefers Scalia’s approach.

Finally, the Court’s religion cases have historically warned against discrimination among different religious faiths. As the Court said in Larson v. Valente (1982), “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”

In theory, the Roberts Court still honors the principle that the government may not discriminate among faiths. Indeed, Carson was rooted in the Republican justices’ belief that a state that pays tuition at secular private schools but not religious ones is engaged in “discrimination against religion.”

In practice, however, the Court’s Republicans have not always enforced this rule against religious discrimination rigorously, at least when politically disfavored faiths are involved. In Dunn v. Ray (2019), for example, the Republican justices ruled that Alabama may execute a Muslim inmate without his imam present, even though the state permitted Christian clergy to be present during a Christian inmate’s execution. The Court has since backed away from its decision in Ray, but that case and others suggest that the Republican justices may not be as zealous in protecting Muslims’ religious liberties as they are in protecting Christians.

Realistically, if the Republican justices are determined to end the Court’s concern with pluralism, and read the bans on religious coercion and discrimination narrowly, no one can stop them. The Republican Party doesn’t just control the Supreme Court, it controls all three branches of the federal government, at least for now.

Similarly, if the Republican justices are determined to greenlight religious public charter schools, no one will prevent them from doing so.

Yet, while the St. Isidore cases seem likely to end whatever vestiges remain of decisions like Everson and Allegheny County, a great deal will still hinge on whether the justices enforce the rules against coercion and discrimination rigorously.

Imagine, for example, a community that is overwhelmingly Lutheran. In a world where public religious schools like St. Isidore are allowed, it is likely that a Lutheran charter school will soon open in this community, and the Lutheran parents in this community may all choose to send their children to this new Lutheran school.

Now imagine that a family from some other faith — let’s say a Hindu family — moves into this community. Because the overwhelming majority of their neighbors attend the Lutheran school, that school is likely to be well-funded. Its size will also allow it to take advantage of economies of scale, which will mean that the Lutheran school will be able to offer enrichment programs and advanced placement classes that a smaller school might not be able to afford.

Meanwhile, while there may still be a secular public school in this community, if only a small handful of students attend this traditional public school, that school will most likely lack the resources of the Lutheran school, and will offer an inferior education.

The Hindu family, in other words, will not be coerced into sending their children to the Lutheran school in the sense that they will be tossed into jail if their kids go to the secular school. But families want their children to succeed. And the Hindu family is likely to decide that they have no choice but to send their kids to the religious public school which will offer their children a superior education.

Worse, what happens if the Lutheran school only admits students who share the school’s religious faith? Will the Supreme Court enforce the ban on religious discrimination? Or will it effectively rule that Hindu children in this neighborhood must attend a separate and unequal public school?

For that matter, what if a religious public school excludes some students because of traits unrelated to their faith? Could a religious public school forbid gay students from attending, for example? Or could it expel a boy if it learns that, after school hours and in the privacy of his own home, that boy kissed another boy?

The whole point of the pluralistic theory of the Constitution announced in cases like Allegheny County is to ensure that all Americans stand on equal terms with their government, regardless of their faith. That theory is now dead, and the Republican justices appear eager to replace it with a rule that will further atomize Americans based on their religion.

It remains to be seen whether, if instituted, a new, more segregated approach to public schooling can still ensure that everyone in a community has access to the same quality of education.