The U.S. Supreme Court's conservative majority seemed on Wednesday to be on the verge of taking a transformative step—a step that would for the first time allow overtly religious schools to be fully funded by the taxpayers.
Oklahoma, like 45 other states, has charter schools that allow for more flexibility and innovation in education. But under both the federal charter school law and similar state laws, charter schools are public schools that are funded by the state, closely supervised by the state, and most importantly for Wednesday's case, by law the schools must be non-sectarian.
Challenging that non-religious requirement Wednesday were two Catholic dioceses in Oklahoma that tried to establish a publicly funded Catholic school, St. Isidore of Seville, as a charter school. The Oklahoma Supreme Court ruled that would directly contradict the state and federal constitutional bans on state-sponsored religious indoctrination.
But at the Supreme Court on Wednesday, the questions posed by the conservative justices seemed to lean heavily in favor of allowing religious schools to become publicly funded charter schools.
Justice Brett Kavanaugh strongly telegraphed his views, at one point declaring: "All the religious school is saying is, 'Don't exclude us on account of our religion.' … And when you have a program that's open to all comers except religion, that seems like rank discrimination against religion."
Conservative Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas asked similar questions, also contending that to leave a religious school out of the charter school program amounts to discrimination against religious adherents and their constitutional right to the free exercise of religion.
Chief Justice John Roberts was a bit harder to read, at one point suggesting that the inclusion of an overtly religious school in the charter program "does strike me as a much more comprehensive involvement" than the school choice programs that the court has previously ruled on. At other times, though, Roberts seemed very skeptical of the arguments put forth by the state of Oklahoma.
At the end of the day, only the court's three liberals were openly skeptical of the notion that a Catholic school dedicated to teaching the word of Christ could be part of a public charter school program that is entirely funded by the government.
Justice Elena Kagan, addressing one of the lawyers representing the archdioceses, noted that the charter school system was enacted to increase curricular flexibility so that the state, for example, could create schools that focus more on the arts, or on math and science, or language proficiency.
She said that states, when they created their charter school systems, "did not want to start funding every religious school in the country. And now you're saying to that state, 'Yes, you have to go fund the Yeshiva. … yes, you have to go fund the [madrasas]; yes, you have to go fund" countless other religious groups because you have established a school system that includes religious charter schools.
If that's the case, she added, there will be "a line out the door" for religious schools to be incorporated into the public charter school program.
Kagan also pointed to the contract that St. Isidore negotiated with the state in order to be a charter school, a contract that, as she put it "you modified to incorporate various church autonomy principles." Lawyer Michael McGinley, representing St. Isidore, acknowledged that the school struck certain provisions in the standard charter school contract.
Kagan followed up, asking, "What if you had wanted to strike out other provisions…because the kind of religious education that you thought… were inconsistent with" the church's mission. McGinley acknowledged that was "part of the contracting process."
Justice Kentanji Brown Jackson noted that the 1994 federal law creating the charter school program specifically says that charter schools have to be non-sectarian. So, she asked, is the federal law unconstitutional? McGinley essentially said that it is.
Representing the Trump administration and the religious groups, Solicitor General John Sauer maintained that allowing religious charter schools to co-exist with non-religious schools does not violate the U.S. Constitution, because "the decision whether or not to go to the religious school … lies in the hands of the parents."
Lawyer Gregory Garre, representing Oklahoma, replied that the state provides vouchers and tax benefits to parents who want to send their children to private religious schools. But he maintained that since public schools were first adopted in the mid-1800s, the state and federal constitutions have not allowed private religious schools to be directly funded by the government.
Changing that long-held constitutional norm, he said, could have profound and hugely divergent consequences in different states across the nation. Some states, for instance, might find that "our traditions are not to allow the teaching of religion in our public schools."
He said that if the court rules for the Catholic church in this case, the effect would sow uncertainty, confusion and disruption for millions of school children and families across the country. Charter schools are, without exception, public schools, he said, noting that in New Orleans, for example, the city's only public schools are charter schools.
What, he asked, would teachers be able to teach if religious schools were added to public charter schools? How would the nation's disability rights laws apply for children? What would the curriculum be if a religious school barred the teaching of evolution? Can you have a gay teacher or not? The questions, he said, are infinite, and could tie up school districts in litigation for years.
Justice Amy Coney Barrett recused herself from participating in Wednesday's case, presumably because when she was a law professor she was involved with a clinic at Notre Dame that advised St. Isidore. Her recusal means the court could conceivably be deadlocked, though the odds of that looked remote on Wednesday.
By the end of the argument, about the only question that remained was where Chief Justice Roberts would end up. If he sides with the other conservatives, there very likely would be a five-justice majority for requiring charter school programs to include overtly religious schools. If he votes the other way, the tie vote would automatically uphold the lower court decision that barred religious schools from being public charter schools. And religious schools would have to look for another test case to bring to the court.
A decision is expected in the case is expected by early summer.
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