Funding for the faithful?

Over recent decades, the Supreme Court has been clear that the government can’t discriminate on the basis of religion. That nondiscrimination principle is at the heart of a major case argued at the Supreme Court yesterday. The court will have to decide if the state can decide to support only secular education or if this limitation is a form of religious discrimination. At the arguments on Wednesday, five justices seemed to recognize that cutting out religious schools from a state charter school program amounted to unlawful discrimination. They are right.

This case comes from Oklahoma and involves the first religious school in a state charter school program. Charter schools are state-funded schools that are not public schools—or at least, not normal public schools.

Charter schools can come in many forms. They are run by their own boards, which are not subject to state control. While charter schools are usually required to meet some core curricular guidelines, they are in most other regards exempt from the regulations. In this regard, charter schools look more like private schools than public schools, and they can emphasize distinctive educational philosophies or methods and particular subjects. There are charter schools that emphasize the hard sciences, engineering, and math; charter schools that emphasize liberal arts and literature. There are language immersion charter schools where all classes are taught in (for instance) French or Spanish. In Oklahoma, there is even a Comanche charter school, “where the Comanche (Numunu) Culture language is the instructional format.”

Recent studies have found that charter schools are doing well at training children. For instance, a study by researchers at Stanford University found that charter school students outperform public schools on math and reading achievement.

Yet in one respect charter schools look more like public schools than private schools: They are funded by the state. This combination of private-school-style diversity with public funding has made charter schools appealing to many parents, and there are now some 8,000 charter schools across America educating nearly four million children.

Under Oklahoma law, any “private college or university, private person, or private organization” can submit an application to form a charter school. And that’s what the Archdiocese of Oklahoma City and the Diocese of Tulsa did. They proposed forming a charter school, to be named for St. Isidore. It would be expressly religious in the Roman Catholic tradition. The state attorney general at the time advised the state board to approve the charter, but when newly-elected Attorney General Gentner Drummond arrived in office in 2023, he said it would be unconstitutional to create a religious charter school. The state charter school board nonetheless voted to approve St. Isidore. And then the litigation started.

The Oklahoma Supreme Court sided with the (revised) attorney general opinion that a religious charter school would be illegal. It was an understandable opinion. In several decisions in the mid-20th century, the Supreme Court held that prayer and Bible reading in public school classrooms amounted to an “establishment of religion” in violation of the First Amendment. If one views Oklahoma charter schools as a form of public school, then an expressly religious charter school like St. Isidore would run into these precedents.

But there’s a simpler path to resolving this case: Don’t view the charter school as a public school with all the baggage that comes with that designation. Instead, just consider it a question of government funding. And when examined that way, Attorney General Drummond’s position looks like discrimination against religion.

Again and again, the Supreme Court has said that governments cannot discriminate against religion when it awards generally available public benefits. In Trinity Lutheran, the state of Missouri had a grant program to support improvements to school playgrounds. The grants were open to private schools, but not religious private schools. The Supreme Court said that was unconstitutional. Similarly, when Montana created a program of state-funded scholarships that could be applied to private schools but excluded religious schools, the Supreme Court said that exclusion was unconstitutional too. Most recently, in Carson v. Makin, the state of Maine offered a tuition assistance program for certain private schools but (again) excluded religious schools. Once again, the Supreme Court said this discrimination against religious schools is unconstitutional.

This recent string of cases provides the Supreme Court with a roadmap for the Oklahoma case. Oklahoma makes charter school designations generally available. That amounts to a grant of public support. Discrimination on the basis of religion is unconstitutional in making government grants.

At the Supreme Court arguments on Wednesday, it appeared that a majority of the court recognized that discrimination against religion was the heart of the matter. “When you have a program that's open to all comers except religion,” Justice Kavanaugh observed, “that seems like rank discrimination against religion.” Judging from the questions they asked the lawyers, Justices Thomas, Alito, and Gorsuch seemed to agree. The chief justice pressed advocates on both sides, but in the end he seemed skeptical that the state could simply label the schools government institutions to escape the nondiscrimination rule that would otherwise apply.

Suppose the Supreme Court decides—as seems very possible—that the Constitution permits religious charter schools. It doesn’t mean that the state couldn’t prescribe more of the charter school curriculum if it wanted to. It also doesn’t mean that all religious schools will, or should, become charter schools. Charter schools may not be subject to the kind of government control applicable to public schools—but charter schools are subject to more government control than private schools. If it is possible for religious schools to opt into the charter school framework, they will have to realize that more government control will come with government money. How much is too much is a question that religious schools will have to weigh carefully.

Those questions about the future depend on the outcome of this case at the Supreme Court. The clearest legal path forward is to view this case through the funding paradigm and put a stop to yet another form of discrimination against religion.