Under the first couple of months of the new administration, education has come in for significant and contested revamping.
The federal education department has suffered deep cuts, which are the subject of a lawsuit from Democratic state attorneys general. A bitterly disputed executive order has tasked Education Secretary Linda McMahon, wife of the wrestling impresario, with shuttering the department. She has called it a “final mission,” one that she claims will give parents greater control. McMahon’s effort comes as school vouchers and education savings accounts are making gains in states across the country. Researchers and advocates draw a connection to charter schools, emphasizing that charters offer an example of how choice options might shape up.
But while most of the country is absorbed in the relentless changes to education policy emanating from the executive branch, the judicial branch has education on its docket, too.
The U.S. Supreme Court agreed to take up St. Isidore of Seville v. Drummond, an Oklahoma case concerning a Catholic virtual school whose state public charter was overturned by Oklahoma’s high court. The school appealed to the U.S. Supreme Court, claiming the denial of its public charter is religious discrimination. The Supreme Court hears oral arguments on April 30. Justice Amy Coney Barrett, a Catholic, has recused herself from the case.
Legal experts say that the St. Isidore case represents a potentially radical shift for both the charter school movement and for the American understanding of the separation between religious instruction and publicly-funded schools. Indeed, Oklahoma’s own state constitution prevents the use of public funds for religious schools.
To find out more about the case and how it might impact students and schools, EdSurge interviewed William Koski, founder and director of Stanford Law School’s Youth and Education Law Project.
This transcript was edited for clarity.
EdSurge: For readers who don't follow the inner workings of the U.S. Supreme Court, can you give a short rundown of the case, and the significance of the high court agreeing to take it up?
William Koski: Yeah, it's a fairly complicated situation, actually.
As I understand it, the archdiocese in one of the cities in Oklahoma wanted to start an online charter school called St. Isidore, and it applied to the Oklahoma statewide charter school board for a charter and it was very explicit that the instruction that would be provided through the online charter school would be religious in nature.
They weren’t trying to hide that fact, and that's good. They were making it clear that they did want to provide religious instruction in addition to, obviously, academic instruction. And the Oklahoma statewide charter school board granted that charter, in what was an interesting move.
The attorney general of the state of Oklahoma — Attorney General [Genter] Drummond — sued the Oklahoma statewide charter school board, alleging that the granting of the charter was unconstitutional under the U.S. Constitution and the state constitution and various other statutes in Oklahoma. And they believed the federal constitution would not allow a religious institution to use public funds to do educational instruction and religious instruction as well. In other words, to use the nomenclature in most state constitutions: you can’t provide aid to religious institutions, and certainly [not] religious schools. The Oklahoma Supreme Court agreed with the attorney general's office and struck down the statewide charter school board's charter. At that point, the Oklahoma statewide charter school board appealed — I should say, asked the U.S. Supreme Court to grant cert; that is, to agree to review the decision of the Oklahoma Supreme Court.
There are a number of different questions here, but the central questions are whether or not it would be discrimination on the basis of religion, and therefore violation of the First Amendment's free exercise clause, to not provide public funds to the St. Isidore charter school. That's how the St. Isidore charter school would like the court to review the case.
The other way of looking at it, though, from the other side, is whether or not giving public funds to a religious organization to provide religious schooling violates the First Amendment establishment clause, [a section of the U.S. Constitution which effectively ensures the separation of church and state]. And so this is an issue where they're going to be deciding whether or not the establishment clause prevents that kind of support for a religious school, or whether or not it’s religious discrimination to disallow the religious school from receiving those public funds. Basically, the thinking of the charter school and the chartering agency — the charter school board — is that there have been three cases at the Supreme Court where they allege that the court struck down states’ attempts to exclude religious schools, parents and students from publicly available benefits based solely on religion. The three cases are Trinity Lutheran [in 2016], Espinosa [2019], and Carson [2021]. The [Oklahoma charter school board and St. Isidore] believe that this is the logical extension of those cases, and that this could be religious discrimination.
Now, on the other hand, of course, it's the first time a religious institution has sought public funds to open up what is clearly a religious school, rather than parents making choices about where they want to send their kids. We already know that you can take a state voucher, for instance, and use it at a religious school. But the intervening variable there is that the parents make the choices. This is different because it's a religious institution claiming that it has a right to receive public funds to open a religious school. It's a little bit more complicated than that, but that's kind of the nutshell of it.
There's the further complication that the Oklahoma constitution has an independent basis for not providing aid to religious institutions to open schools. And so the court would be saying not only that it would be in violation of the U.S. Constitution's First Amendment free-expression clause, but in addition, that the Oklahoma constitutional provision that prevents that would also not be a bar to giving public money to this religious school.
Are there further implications that are directly relevant to schools if the Supreme Court chooses to override Oklahoma's decision?
Absolutely. It has implications for schools throughout the country, because — to the extent that there are other religious organizations that would like to get state funding to open up a charter school — the fact that they're religious would not be a bar to that application if the court decides to overrule the Oklahoma Supreme Court.
What's known about the original motivations for approving the virtual school’s charter in the first place? What was the intention there?
I'm not quite that [far] in the weeds on the case.
It does strike me as a situation where all the parties — the archdiocese and St. Isidore and the Oklahoma statewide charter school board — knew that there was going to be litigation. It's impossible to believe that they didn't know that this case was going to get litigated, and in fact, they may have decided that this would be a test case to decide whether or not the Supreme Court would extend the trilogy of cases that determined it was wrong to exclude religious schools from public funds in the past.
A lot of religious schools are probably watching this very closely. So assuming that it is successful, are there a lot of non-Christian school networks in the wings that would likely jump on this decision to open up public dollars, too?
Again, I don't know that for sure, one way or another.
We do know that there are obviously other religiously affiliated schools that are not Christian schools. Obviously, in New York there's a good number of schools in the Orthodox Jewish community. Maybe they would want to open charter schools. Who knows? I don't know the answer to that. But you know, we do know that there are other religious schools out there.
Could you speak to how you evaluate the strengths of some of the different components of this argument? As I understand it, one of Drummond’s chief arguments is that receiving funding would essentially make the charter a “state actor.” I'm wondering how strong that argument seems to be, legally.
I mean, that's a question of whether or not the charter school becomes a state actor for purposes of the Establishment Clause, right? And I think that there's legs to that argument. But on the flip side of this, of course, is that the Supreme Court has these three decisions, and there does seem to be a trend in the direction of supporting religious schools in these kinds of cases.
So I [couldn’t] predict where the court's going to go with this. But there are certainly very, very strong arguments on both sides of the ledger here.
Since Justice Barrett recused herself, what happens in the event that it's a 4-4 decision? Is it as if the court had never taken the case?
Yes, the lower court decision stands and the tie sets no precedent for other circuits.
Some coverage has suggested that one of the hurdles for the proponents of the charter school is that even though it does somewhat fit into this trio of cases that you cited, those rely on what is called the “child benefits test.” I gather the difference is that it was the families or students who were the primary beneficiaries rather than the school or institution itself?
Yeah, that parents are making independent choices.
There's a long-standing precedent, the Cleveland voucher program. This [was] a couple of decades ago, where the court decided that publicly-funded vouchers could go to religious schools in Cleveland because the intervening, independent choices of parents were what was driving it. It wasn’t the state establishing these schools. Rather, [it was] parents just choosing to spend the voucher at those schools.
How might this alter our understanding of charter movements in general?
It's very interesting because if you look at where the parties are weighing in here, I think the traditional public charter school community is concerned about this, and for a number of different reasons — because they might be concerned that parochial schools will then become what we would call “conversion charters”— that they would attempt to convert themselves into charter schools and then receive public funds. Any public funds that would have gone to other potential charter schools would now be going to religious schools that would either establish themselves newly and independently, or would attempt to convert current parochial schools into charter schools.
Many states prevent those kinds of conversion charters. But there could be concern that the number of charters granted might become a zero-sum game in some places, and then fewer charters would be granted to non-religious schools, or just simply that public monies that might otherwise be available to traditional charter schools would not be available to them.
I believe that you can see it in those who filed amicus briefs on the cert petition. You know, the charter schools have been opposed to the granting of this charter.
That's really interesting. I came across a similar sentiment in Cara Fitzpatrick's article in The Atlantic, in which she talks about hesitation from within the charter school movement. Fitzpatrick perceives a shift in the way that the movement is presenting itself, with a number of competing alternatives that sit uncomfortably together. On one hand, you could understand these charter schools as essentially just a reform movement of public schools — so they're still public but they are an attempt to reform or change the public options. Another way to look at them is they are a covert form of school vouchers, essentially testing the waters. A third way is that they are a totally separate, competing system to public schools.
If you take the long view of charter schools, the supporters of charter schools have always been an uncomfortable group of bedfellows.
On the one hand, you have sort of Milton Friedman-esque, free-market choice proponents who saw the charter movement as a first step toward universal vouchers and the complete privatization of schools, essentially — just use public money to buy whatever education you wanted through a voucher system. Some people, I believe, probably viewed the charter school movement as a first step in that direction when they were first established in the early 1990s.
At the same time, there were many progressive-minded educators who thought that the way that we did traditional schooling was not effective for kids and it didn't provide equity for kids. And then, in fact, for low-income kids and kids of color [these educators perceived that charter schools could give them] the choice of a different kind of education. [These progressive-minded educators] imagined a Montessori education, or something like that, was a way to educate better.
And not only would it benefit the kids who go to these new charter schools, it might benefit the traditional public schools where they see something different that works.
A related argument from the moderate-to-conservative types was that, at a minimum, the charter schools would put pressure on the traditional public schools to improve, right?
So there's always been sort of an uncomfortable tension among this big tent of supporters for charter schools.
What’s the possible significance at the school and family level?
You know, at the individual level, it's tricky for me to answer that, but at the aggregate level, I think folks might be concerned about two things.
One is the traditional separation of church and state. People just feel that that's a principle that should not be abridged. And at least historically, providing money directly to a religious school would have been unheard of. Then again, as I said, the court has been slowly nibbling away at that through these three cases. So that jurisprudence might change. But there is a concern, I think, for a lot of people, that the state is kind of propping up and establishing religion by providing monies for direct religious instruction like that. I think there are a lot of individuals that are concerned about that principle.
[Then there’s] another sort of practical aspect for anybody who's in the public school world — especially teacher’s unions, traditional school boards, associations, administrator’s associations, or anything like that. [For these groups, the case is] just another potential way for public monies not to be spent on traditional public schools. There's some particular concern here, because this is an online charter school, which could theoretically offer its school to anybody in the state of Oklahoma.
I also wonder if this puts any pressure — assuming it's successful — on public schools to change or to be more sensitive about curriculum, with the knowledge that you might further accelerate enrollment losses if you're teaching a curriculum that some see as controversial.
I understand the argument that you're trying to make, but I can't speculate.
I think there are potentially a lot of people who might choose to go to a religious charter — particularly if it's online — if they had the opportunity to do so, irrespective of whether or not they're unhappy with the curriculum in their traditional public school.
But there may be some who particularly feel troubled by whatever curriculum is in the traditional public school, and view this as an option to get away from that.
That's theoretically possible, but I just don't know.
What could — or maybe should — we be watching as the court ponders this, that might give us a sense of how it's going? Is there anything that would leap out as a significant indicator?
Wait until the oral argument and see if there's any sort of indication, [if] any hands that are shown at that time.
Right now, I do think it's not insignificant that the court chose to take the case. They could have just let the Oklahoma Supreme Court's order stand, and some might see that as signaling that they might overturn it or not.
But who knows? They also might be deciding, “Nope, we're putting the brakes on this. We've done our three cases, but this one, this is a bridge too far.”
So that's why I can't really speculate on it. I'd wait for argument and see how that shapes up. That would be the next indicator.
Any other aspects of the case you want to draw attention to?
Not really, except to say this is a big deal.
I rarely say that. I wouldn't have said it, for instance, with a couple of the other cases that the court has decided; for instance, [about] whether or not the state should be providing monies to help a religious school put down a playground surface. That's far less controversial than saying that a state could provide monies to do direct religious instruction. That's a very, very different case. That's why this case is kind of a big deal.
