Crossing the Line

Today the Supreme Court deadlocked 4-4 to prevent Oklahoma from approving the nation’s first religious public charter school. NBC News reported that,

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“The decision by the evenly divided court means that a ruling by the Oklahoma Supreme Court that said the proposal to launch St. Isidore of Seville Catholic Virtual School violates both the federal Constitution and state law remains in place. St. Isidore would have operated online statewide with a remit to promote the Catholic faith.”

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“A key factor in the outcome was that conservative Justice Amy Coney Barrett, who would have been the deciding vote, did not participate in the case. She did not explain why, but it is likely because of her ties with Notre Dame Law School. The law school’s religious liberty clinic represents the school.”

Last month, The Atlantic offered this perspective on the Oklahoma case,

“Oklahoma is forcing the Supreme Court to choose: Either the justices can allow more religious control of public schools, or they can respect the wishes of the Founding Fathers. They can’t do both.”

“The Founding Fathers didn’t see eye to eye on all the details, but people in the founding era did agree that it would be the death of public schooling if schools came under the authority of any specific religious denomination, or even if a school appeared to favor one denomination over another. Many believed that public schools had a duty to encourage religion as a general idea and could even offer some generic religious instruction, but a line was drawn at direct control.”

“The reason was that public schooling was not just an educational offering but also a project of building a national identity and citizenry. No public school could ever be run by a church, because no public school should teach any religious idea that divided Americans. In the centuries since, that fundamental principle has remained intact. By the 1960s, the idea of any devotional practice in school had come to seem divisive, so the Supreme Court prohibited teacher-led prayers and school-sponsored religious devotions of any kind. The wholesale exclusions of religious practices were new, but the guiding principle was as old as the United States itself.”

“Oklahoma’s plan for a public school run by the Catholic Church would upend that principle. It would fly in the face of the Founding Fathers’ intentions and go against two centuries of American tradition. And it puts the six members of the Supreme Court’s conservative majority in a bind. In previous decisions, they have insisted that they will be guided by history, using that rationale to allow for more religion in public schools. In this case, however, if they want to follow their own rules, they must decide in the other direction.”

“In 2023, the Oklahoma government approved an application from the Catholic Church to create a virtual charter school. Like other charter schools, this one would be funded by taxpayers. But unlike other charter schools, this one would be explicitly religious, teaching students Catholic doctrine. Oklahoma’s state attorney general objected, pointing out the obvious. Such a school would be a flagrant violation of the state constitution, to say nothing of the U.S. Constitution…”

“Many on the religious are hopeful. This Court has given their movement some significant victories in recent years – each time justifying the decision by pointing to history. In 2020, in a case about a Maine school-payment program, Chief Justice John Roberts argued that all private schools, secular and religious alike, had to be included in the program in rural areas where public options were not available. He justified his decision by claiming that sending public funds to religious schools was the ‘early American tradition.’ In 2022, Justice Neil Gorsuch ruled that a football coach at a public school must be allowed to pray with his players at the 50-yard line of the football field. Why? Quoting two older opinions about religion and public schools, Gorsuch said that this had long been the rule: Decisions about religion in public schools must be guided by ‘history’ and faithfully reflect ‘the understanding of the Founding Fathers.’”

“But the case from Oklahoma makes claiming history as a justification harder for the conservative justices. In this case, the history is unambiguous: The Founding Fathers would never have approved of a public school that taught the religious doctrines of one specific kind of Christianity.”

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“…The people who created the first generations of American public schools were guided by a different principle: These schools – if they were going to be truly American – should teach a generic, religion-based morality, but they could not be run by any single church or inculcate any specific religious beliefs.”

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“The justices can now either score a short-term win for today’s religious conservatives, or respect centuries of history and precedent. Let’s hope they follow their own guidelines and strengthen one of the best traditional of America’s past.”

Well, The Atlantic got their wish – for now. But who thinks that the Court would have approved of Oklahoma’s Catholic charter school play had Amy Coney Barrett participated in the vote?

No, separation of church and state – at least when it comes to public education – is on a slippery slope. And maybe it has been for longer than any of us would like to admit. Who believes home schoolers, now funded by the taxpayer through newly approved education savings accounts, won’t be praying over meals and studying the Bible (or the Koran for that matter) while “in school”? Like one school board member once said to me: “Parents are looking for comfortable spots to send their kids to school.” And comfort comes in a lot of colors – racial, economic, religious, scientific, historical – and the list goes on and on.

But “comfort” has its downside. Gone are the opportunities to learn from kids and adults who look and think differently than you. Gone are the challenges inside the classroom that allowed learning to happen, not because there was agreement, but because there was argument. Gone are the gifts of diversity and difference. Instead, everything is the same. Everything is comfortable.

Friday News Roundup tomorrow. Til then. SVB