Supreme Court’s Stance on Religious Charter Schools Raises Concerns

Following last month’s oral arguments, there’s growing apprehension that the Supreme Court may disrupt public education by acknowledging constitutional rights for publicly funded religious charter schools.

Interestingly, one justice pointed out that there are historical precedents where funding was declined by religious institutions. He remarked that these free funding requests may not endure. So, it raises a question—why hasn’t there been a–I mean, any significant legal challenge in American history about this matter? Especially since religious schools, much like those in Oklahoma, are now seeking modern taxpayer support?

During the discussions, which mainly showcased the concerns of those supporting public education and church-state separations, the justices posed some thought-provoking questions. If Gorsuch adheres to his originalist views, his line of questioning might just lead to a middle ground where neither side fully achieves their desires.

Let’s dive into the core question. With the landmark case of Dobbs v. Jackson Women’s Health Organization three years back, the Supreme Court ruled on interpreting constitutional rights as they relate to state respect under the 14th Amendment. It’s a pivotal issue, reflecting on how states are regulated at the time the 14th Amendment was adopted.

So, in the context of Dobbs, the courts indicated that historically, no one claimed that the laws restricting early abortion in the mid-19th century violated fundamental rights. For conservative justices, it seems like what’s implicit is that the right to abortion isn’t something rooted deeply in American traditions.

Now, in the current case—Oklahoma’s Charter School Board vs. Drummond—supporters of religious schools are utilizing similar logical frameworks to assert their claims. According to them, under the 14th Amendment, the state is obligated to provide funding for religious charter schools. If the court seeks intellectual consistency, it ought to consider how states managed requests for religious school funding prior to the 14th Amendment’s enactment.

The historical context is clear; in the 19th century, state authorities frequently denied funding applications from publicly supported religious schools. Moreover, similar to what was found in Dobbs, there weren’t claims of constitutional violations made during that period.

What’s particularly interesting is the lack of a robust historical argument supporting free access to taxpayer-funded religious schools. During oral discussions, it was noted that the US Constitution has a “free exercise clause” which could have been a fertile ground for lawsuits. Yet, as Gorsuch pointed out, “There was no challenge.” It seems this indicates that claims for publicly funded religious schools aren’t firmly anchored in our historical traditions.

You might expect that the lawyers representing the religious charter schools were ready to counter this historical dilemma, but their responses were a bit surprising. One advocate, James Campbell, got somewhat tangled up in the concepts, mistakenly equating the freedom movement clause with the establishment clause. He suggested that religious schools never pursued state constitutional freedom movement lawsuits concerning public funding, though he did admit the state wasn’t bound by the First Amendment historically.

For Campbell, it seems there wasn’t an alternative perspective. Judge Samuel Alito argued that state provisions for free movement signal the most accurate scope of what’s covered in the free movement provisions. According to Alito’s reasoning, the absence of a federal freedom movement today stems from the lack of state support for religious school funding back in the 1800s. If Gorsuch chooses to follow this reasoning based on verbal arguments, few would disagree with him.

Gorsuch’s inquiries are intriguing. They imply that proponents of religious charter schools might need to temper their initial optimism, while simultaneously opening doors to unexpected compromises in court.

The Supreme Court seems poised to potentially decide that states can voluntarily fund religious charter schools without breaching the establishment clause. This aligns with America’s early history, where some states indeed supported religious education. Today, states naturally provide funding to private schools through voucher programs, so allowing the same for charter schools might not significantly alter the current landscape.

However, if the courts genuinely wish to maintain historical fairness, they should also permit states like New York and California the freedom to choose not to fund religious charter schools.

Such a ruling could leave the matter of charter school funding to be determined by elected representatives in each state. There’s another layer to this—like the theme noted in the Dobbs decision—it presents a compelling argument for conservatives asserting that originalism can yield surprising outcomes that cross ideological lines.

Yet, there’s an opposing view. If conservative justices support a broad liberal interpretation for funding religious charter schools, they might face considerable backlash from those in favor of maintaining church-state separation in public education. It might complicate their originalist stance, rendering it a contentious issue within the contemporary conservative court.