Since the 19th century, when the Catholic Church and other Christian denominations asked for a share of tax money to fund their own sectarian religious schools, it has been a matter of settled constitutional law that commingling public education and sectarian religion is impermissible. That is why what happened Monday in Oklahoma is so disturbing and significant. Over the objections of the state’s attorney general, Oklahoma’s Statewide Virtual Charter School Board voted to approve an application from the Catholic Archdiocese of Oklahoma for a publicly funded charter school.
Oklahoma’s Statewide Virtual Charter School Board voted to approve an application from the Catholic Archdiocese of Oklahoma for a publicly funded charter school.
The board put the archdiocese on the path to provide a Christian education paid for by the state. Though transparently unconstitutional, this arrangement may still be blessed by the radical conservative majority on the U.S. Supreme Court, which has issued a series a rulings in recent years that use a specious idea of religious freedom to promote the establishment of religion.
For example, after the majority opinion in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, Notre Dame Law School hosted a conference in Rome at which Supreme Court Justice Samuel Alito framed “religious liberty” as deference to those with certain religious viewpoints. The principle may sound equitable, but in practice it is a lightly disguised means of privileging conservative Christians.
Consider, too, that in December, former Oklahoma Attorney General John O’Connor said recent decisions of the U.S. Supreme Court had cleared the way for public funding for schools that promote religious doctrines and are under sectarian control.
It’s not just the U.S. Constitution that should have stopped the board from approving the application to create St. Isidore of Seville Virtual Charter School. Oklahoma law specifically prohibits charter schools from being sectarian. “The approval of any publicly funded religious school is contrary to Oklahoma law and not in the best interest of taxpayers,” Oklahoma Attorney General Gentner Drummond said after the board voted. “It’s extremely disappointing that board members violated their oath in order to fund religious schools with our tax dollars. In doing so, these members have exposed themselves and the state to potential legal action that could be costly.”
Rachel Laser, president and CEO of Americans United for Separation of Church and State, said in a statement: “It’s hard to think of a clearer violation of the religious freedom of Oklahoma taxpayers and public-school families than the state establishing the nation’s first religious public charter school. This is a sea change for American democracy.”
In testimony to the state's virtual charter school board in February, Ken Upton, an attorney for Americans United, cited “teaching religion, sponsoring prayer, discriminating based on religion, or otherwise promoting religion or coercing students to take part in religious activities” in saying, “St. Isidore makes clear in its application that it intends to do all these things.”
The archdiocese has on its side some powerful allies from the same conservative legal movement that helped secure a majority on the Supreme Court, including the Notre Dame Religious Liberty Clinic at Notre Dame Law School. Formed in 2020, the clinic has deep ties to the Federalist Society and the ultraconservative members of the Supreme Court. The clinic’s director, Stephanie Barclay, clerked for Justice Neil Gorsuch and litigated cases for the Becket Fund for Religious Liberty. An associate dean, Nicole Stelle Garnett, clerked for Justice Clarence Thomas and has written approvingly of the Supreme Court’s decision last year in Carson v. Makin, which expanded taxpayer funding for religious schools in Maine, and for which the clinic submitted an amicus brief.
Given the record of the Supreme Court’s right-wing majority, supporters of St. Isidore have good reason to believe that majority will say St. Isidore can use public money to support its sectarian program.
Given the record of the Supreme Court’s right-wing majority in cases involving so-called religious freedom, supporters of St. Isidore have good reason to believe that majority will say St. Isidore can use public money to support its sectarian program — clearing the way for a future in which large amounts of money flow from local, state and federal treasuries into religious networks with clear political agendas and significant influence over public education.
As bad as such a Supreme Court ruling would be, perhaps even worse would be a decision that says such schools could discriminate against anybody or any group that offends their religious sensibilities. But this is precisely what the groups behind the Oklahoma religious charter school are teeing up in Colorado. The Becket Fund for Religious Liberty is representing Faith Bible Chapel International in a case arguing for a “ministerial exception” to anti-discrimination laws at religious schools.
In that case, Greg Tucker, a white man who served for 14 years as a teacher and the director of student life at the private religious school, adopted a Black daughter, after which some students started to refer to his family using racial slurs. After he tried to establish a symposium for students to address racism, he was fired. Tucker maintains that the firing was blatantly retaliatory and discriminatory.
The school is claiming a “ministerial exception” to anti-discrimination law. Such exceptions are intended to allow religious employers to avoid liability when they fire “ministers” and clergy. Although Tucker was not a “minister,” but rather a teacher, with no responsibility for theological instruction or significant religious functions as part of his job, the school is trying to use “ministerial exception” as a trump card against his claim that it practiced racial discrimination. A divided 2-1 panel at the 10th U.S. Circuit Court of Appeals ruled against the church, which has appealed to the Supreme Court.
America’s Christian right is taking direct aim at secular public education, but let’s not forget that it is also after the money.
Given the tolerance for discrimination in the name of religion that the Supreme Court has demonstrated in cases such as Burwell v. Hobby Lobby Stores Inc., which let certain companies deny birth control coverage to their employees, and in Hosanna-Tabor v. EEOC, which says fired clergy cannot sue for discrimination, and given the court's eagerness to support the public funding of religious schools it has demonstrated in Carson v. Makin, it is reasonable to fear two things: that this court will decide not only that tax dollars can be used to fund religious schools but also that religious schools are exempt from laws that protect students and employees alike from broad categories of discrimination.
If the Faith Bible Chapel International and St. Isidore cases are heard before this Supreme Court, it seems likely that public education in the U.S. is about to change for the worse in the same way the Dobbs ruling changed women’s health care for the worse.
Make no mistake: America’s Christian right is taking direct aim at secular public education, but let’s not forget that it is also after the money. The U.S. spends over $700 billion on public K-12 schools every year. If conservative Christian leaders can lay claim to part of that sum, it could help sustain conservative churches, whose attendance rates are reportedly falling.
Religious right leaders have long claimed that they are the true victims of religious persecution in the U.S. They have not disguised their aim of using public resources, including government facilities and taxpayer money, to impose their values on other people, including other people’s children. Now that they have the Supreme Court they want, their goal may be within reach.