AN OKLAHOMA CASE WILL DEFINE THE FUTURE OF PUBLICLY FUNDED RELIGIOUS SCHOOLS—UNPACKING LAST WEEK’S SUPREME COURT ARGUMENT
INTRODUCTION
Last week the Supreme Court heard arguments in a case wherein the Oklahoma Charter School Board and St. Isidore of Seville Catholic Virtual School challenged a ruling by the Oklahoma Supreme Court. The school had entered into a contract with the Charter School Board that provided public funds. The Oklahoma Attorney General had challenged that contract, indicating that it would violate that state’s Constitution and create a state establishment of religion in further violation of Oklahoma law guaranteeing non-sectarian education. The Oklahoma Supreme Court agreed and struck down the contract holding in part:
“…that St. Isidore’s contract with the Board violated the Oklahoma Constitution’s prohibition on using public money for the benefit or support of any religious institution. citing OKLA. CONST. art. II, § 5. The framers of Oklahoma’s constitution recognized the necessity of a complete separation of church and state and sought to prevent the ills that would befall a state if they failed to provide for this complete separation.”
The court then further held in part:
“that, because St. Isidore is a governmental entity and a state actor, its contract violated the Establishment Clause. It had planned to incorporate Catholic teachings into every aspect of the school and to require students to spend time in religious instruction and activities while receiving direct support from the State, all in violation of the Establishment Clause. Excluding St. Isidore from a publicly available program open only to nonreligious entities does not implicate the Free Exercise Clause. Even if St. Isidore could assert free exercise rights, the State’s obligation to comply with the Establishment Clause is a compelling governmental interest that satisfies strict scrutiny.”
The foregoing summaries of the Oklahoma courts’ holdings are from the Charter School Board’s brief in support of a writ of certiorari that was granted by the Supreme Court, and last week’s arguments focused, therefore, on two key issues:
- Is the religious school a state actor simply because it contracts with the state to offer a free educational option for students and is itself privately organized and run?
- Is the Free Exercise Clause of the First Amendment violated by requiring the school to abandon religious instruction to receive a public benefit when other similarly situated entities may receive public funds in the execution of providing publicly available services?
COMPELLING ARGUMENTS WERE MADE THAT THE CATHOLIC SCHOOL IS NOT A STATE ACTOR AND THAT THE ESTABLISHMENT CLAUSE IS NOT IMPLICATED
In this case, for the ages, an unprecedented number of amicus, or “friend of the court,” briefs were filed by entities and persons on both sides of the issue. Importantly, and in stark contrast to what might be expected from the Biden Administration, the Acting Solicitor General of the United States, Sarah Harris, weighed in on the side of the Charter School Board and the Catholic School by firmly stating in its brief and at oral argument that the school is not a state actor or the result of state action and was privately operated and formed. Simply because any state enshrines in its Constitution provisions regarding public education does not mean that those functions cannot be provided by private entities even with public funding. Education has not been traditionally and exclusively a public function, and when a state provides a framework for partnership with a private entity engaged in education in a school that children are not compelled to attend, there is no establishment of religion, and the goals of such institutions are not the state’s goals. If such activities are not “state” functions, then there is no action of the government in the establishment of religion. Those in opposition to the Oklahoma Supreme Court’s holding warned that such a strained and overbroad definition of state action would sweep in a wide array of private and charitable institutions as arms of the state with enormous implications for freedom, especially religious freedom. Since any government must remain religiously neutral, declaring the actions of a private religious school or any other program of a religious group to be “state action” would cause such schools or programs to abandon religious objectives in the provision of services beneficial to the public simply to receive any public benefit. To deny religious identity to survive would cause many to simply end their existence rather than deny their religious identity. The reality is that faith-based groups provide significant community services and are in jeopardy of leaving public service if they were declared “state actors” by virtue of public partnership and therefore had to secularize. This brings us to the compelling Free Exercise issue.
THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT PROTECTS A CITIZEN’S RIGHT TO PRACTICE THEIR RELIGION
The first section of the First Amendment to the United States Constitution reads:
“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…”
Thomas Jefferson’s drafting of the Virginia Statute for Religious Freedom saw passage in 1786 and sealed the disestablishment of the Church of England in Virginia and the formal recognition of religious plurality as the policy of Virginia. It also formed the basis of the First Amendment as constructed during the Constitutional Convention and was forged in a rebuke of the religious autocracy and sectarian strife that had plagued Europe. Such a violent and intolerant history spawned the arrival of religious refugees into the colonies from the earliest settlements to the post-Revolutionary period. Jefferson saw wisdom in promoting religious plurality for a variety of reasons as an essential component of any Republic. Constitutional scholars have seen that the Establishment Clause and the Free Exercise Clause are in potential conflict as “free exercise” has been limited under circumstances of the violation of public morals or a “compelling governmental interest.” The Oklahoma case is just such an example, as the Oklahoma court held that the St. Isidore religious school is a state actor and, as such, could not receive public funds. However, it also sought a public benefit as a religiously affiliated entity and therefore could be seen to have its free exercise rights violated by such a denial, especially when it is a predominately privately controlled and formed entity. This argument was made in the brief of the Oklahoma Charter School Board:
“The decision below poses a grave threat to fundamental freedoms. First, it requires St. Isidore to disavow its religious character before it can operate a charter school, thus imposing a penalty on the free exercise of religion. This harms religious schools and religious parents who wish to send their children to schools that align with their values. Those with progressive values may send their children to progressive charter schools on the state’s dime. Those who subscribe to the principles of Montessori education may send their children to Montessori charter schools for free. But religious parents may not avail themselves of this same benefit because the would-be charter school they desire is religious. The Free Exercise Clause firmly rebukes such anti-religious discrimination.”
It is absolute law that has been made clear by the Supreme Court that the Free Exercise Clause forbids the government from requiring religious entities to choose between their religious beliefs and receiving a government benefit. Once a state decides to fund private activity, and many states, including Oklahoma, do this in the case of such entities like foster care agencies, homeless shelters, child care, and yes, many corporations from oil companies to even Amazon, Ford, and Walmart, to name just a few. However, religious-based organizations need not apply. Many of these entities are subject to state regulation and are even chartered under state corporation law; however, they are not state actors. Neither should an essentially private entity such as St. Isidore be so classified. Interestingly, Justice Kavanaugh focused on this by questioning the Oklahoma Attorney General and pointing out that any other school with a secular label would qualify for the public funding, but the religious schools need not apply. He and other Justices saw this as a major problem—namely, that to receive the benefits that the Charter School Board offered the school would cause it to have to abandon its religiously focused objectives. The arguments supporting the view that this was pure discrimination had the support of some of the Justices and this was apparent throughout the fascinating arguments.
CONCLUSION
If Chief Justice Roberts is convinced that the school is essentially private and is not a state actor just because it executes a function—education—which is given special treatment in the Oklahoma Constitution and is subject to several state laws, we will likely see a 5-4 decision overturning the Oklahoma ruling and once and for all paving the way for religious charter schools to receive public funds. This will allow them to educate unconstrained by overregulation, interference, and coercion and to focus on the quality education that is so needed by our children. A country that is the richest in the world, with the highest level of innovation and the creation of intellectual property that has elevated mankind, has shamefully one of the lowest educational ratings among developed countries, and we spend the most on each student for little return. This will change once parents have the option of private education turbocharged with public funds. This cannot happen soon enough. Let’s hope it does.
Mike Imprevento
May 5th, 2025
