We posted last year about Oklahoma’s scheme to allow for taxpayer-funded religious charter schools. The test case is St. Isidore, which describes itself as an instrument of the Catholic Church committed to the Church’s evangelizing mission. It was created as a joint venture of the Archdiocese of Oklahoma City and Diocese of Tulsa. On June 25th, in Drummond v. Oklahoma Statewide Virtual Charter School Board, by a vote of 7-1, with one Justice recused, Oklahoma’s Supreme Court found that the Board’s plan to allow for a publicly-funded Catholic charter school violates Oklahoma’s constitution. Six Justices also found that the contract violated the federal Constitution’s Establishment Clause.
As Amy Howe (left) reports on Howe on the Court, The U.S. Supreme Court granted cert. in the case last week. Justice Amy Coney Barrett recused herself from the case, but even without her, the Court’s conservative majority had the votes to take the case, which may signal that the Roberts Court’s efforts to overhaul the jurisprudence of the Religion Clauses is about to kick into overdrive. According to Ms. Howe, St. Isidore contends that the state supreme court’s ruling “unconstitutionally punished the free exercise of religion by disqualifying the religious from government aid.” The two consolidated cases, brought by the school and the charter school board will be argued in April.
Gaurav Mukherjee (right) provides analysis on the LPE Blog. He sees this case as part of a broader trend that he calls “private disestablishment.” His post is a deep dive into the history of charter schools and their role as structural disrupters of public education. He warns that “private disestablishment seeks to leverage the hybrid nature of charter schools to secure public funding for religious institutions while avoiding the constitutional obligations typically imposed on public entities.” Professor Mukherjee notes that an economic imperative might be motivating religious institutions to seek public support. The number of Catholic schools has dropped form 13,000 in the 1960s to 5000 today. Public money could help sustain religious education well into the 21st century.
Be careful what you wish for. My understanding is that the Framers were keenly aware not only that government must guard against favoring particular religious beliefs but also that religious institutions must be protected against government interference. Once religious institutions become dependent on state funds, states can use that leverage in ways unforeseen.
