SCOTUS takes up case on LGBTQ+, inclusive books in schools
Demonstrators on both sides protested as the Supreme Court heard a school district’s case on parents’ rights and LGBTQ+ books.
WASHINGTON − The Supreme Court’s conservatives argued religious institutions can’t be treated as second-class and railed against discrimination. Concerns about opening the door to public funding for religious charter schools of all faiths “reeks of hostility,” one said.
Its liberal justices defended the country’s longstanding separation between church and state as the court debated on April 30 whether to allow the nation’s first religious charter school. One justice stated that a win for the religious charter could jeopardize the quality of a publicly funded education nationwide.
Attorneys for the Catholic Church, an Oklahoma charter school board and the Justice Department told the Supreme Court that allowing St. Isidore of Seville Catholic Virtual School was the natural next step following a series of recent decisions from the court.
But Gregory Garre, who defended the state supreme court’s ruling rejecting the Catholic charter, pointed to landmark rulings against teaching religion in public schools. Requiring Oklahoma to allow religious schools in its charter school program, he said, would be an “astounding reversal from this court’s time-honored precedents.”
The Catholic Church’s appeal is just one of three religious rights cases the Supreme Court is deciding in the coming weeks that could increase the role of religion in public life.
Here are key moments from the oral arguments.
Key question: Are charter schools public?
The court’s decision is expected to turn on whether charter schools, which are publicly funded but have private operators, are public schools under the law.
If they are, the justices could rule that religious charter schools violate the Constitution’s prohibition on the government backing a religion.
If they’re not public schools, the government could be discriminating when it prohibits the church from participating in the state’s charter school program. The justices could find that’s a violation of the U.S. Constitution’s promise that Americans can practice religion freely.
“We need a test, a legal test,” said Justice Neil Gorsuch.
Justice Sonia Sotomayor said charter schools are public because they’re funded by the taxpayers.
Justice Elena Kagan called them “state-run institutions.”
“They give the charter schools a great deal of curricular flexibility,” she said. “But with respect to a whole variety of things, the state is running these schools and insisting upon certain requirements.”
Michael McGinley, an attorney representing St. Isidore, disagreed. He said the only way the school would receive public funds would be if parents chose to send their children there.
James Campbell, the attorney for the charter school board, said Oklahoma is just “exercising contractual oversight.”
“The state is not running these schools,” Campbell said.
‘Rank discrimination’: Sharp ideological divide emerges
It didn’t take long for a sharp ideological divide to emerge between the court’s liberals and conservatives. (All three justices appointed by Democrats and five of the six Republican appointees participated. Justice Amy Coney Barrett, appointed by Donald Trump following Justice Ruth Bader Ginsburg’s death, recused herself from the case.)
Justice Brett Kavanaugh, another Trump appointee, suggested that Oklahoma was treating religious schools “as second class in the United States.”
“That seems like rank discrimination against religion, and that’s the concern that I think you need to deal with here,” Kavanaugh told Garre, the lawyer defending the Oklahoma policy.
Justice Samuel Alito, a George W. Bush appointee, went even further, accusing the Oklahoma attorney general’s office of being “motivated by hostility toward particular religions.” He quoted the attorney general as saying many Oklahomans likely support charter schools for Christian faiths, but that support would require the state to approve similar schools from all faiths.
“We have statement after statement by the attorney general that reeks of hostility toward Islam,” Alito said.
Garre disputed the claim.
“If your concern is the treatment of Islam or Muslims, then the concern should be the Muslim family whose only practical option is the religious charter school that happens to teach the Catholic faith as truth,” Garre said.
Meanwhile, all three liberal justices expressed skepticism toward the Catholic school’s position.
Sotomayor, an Obama appointee, suggested that those siding with St. Isidore were forgetting a provision in the Constitution that prohibits the government from establishing an official religion/
“The essence of the establishment clause was, ‘We’re not going to pay religious leaders to teach their religion,'” Sotomayor said.
Kagan, another Obama appointee, said a win for the Catholic school could mean having to provide taxpayer dollars for schools that aren’t providing a strong education in areas like math and reading.
“I don’t have to imagine very hard to come up with 100 hypotheticals like this because religious communities are really different in this country and are often extremely different from secular communities in terms of the education they think is important for their young people,” Kagan said.
Roberts, a key vote, keeps his cards close
With Barrett, a Trump appointee, recused from the case, Chief Justice John Roberts appears to be a pivotal vote. If he joins the three liberal justices, the court would split 4-4 in the case, which would mean the Oklahoma Supreme Court’s ruling against the Catholic school would stand.
Roberts said early in the arguments that previous rulings from him and his colleagues did not clearly indicate the Catholic school should win, even if those decisions expanded religious protections. He asked Campbell, a lawyer for the charter school board that approved the Catholic school, what past ruling would support the level of government mixing with a religious school that the Catholic school and board were now requesting.
But he later also told Garre, the attorney defending the policy, that his argument for why charter schools are public didn’t seem to square with the court’s past decisions.
Justices question whether religious schools could meet state curriculum requirements
Roberts asked how extensively the state could require charter schools to teach certain subjects, such as history.
U.S. Solicitor General John Sauer, who argued in defense of St. Isidore, said if there were a requirement to teach evolution and a school rejected it, the school couldn’t opt out. The state has a compelling interest that evolution be taught, he said, and courts could say whether that’s valid.
Kagan suggested mainstream religions could meet the state’s requirements. But more obscure ones might have trouble if the government curriculum violated religious schools’ beliefs, she said.
“There’s a line out the door” of people seeking charter funding, Kagan said. “We’re going to end up in a state of the world with kind of establishment religions and more different, more fundamentalist, more use-the-adjective-you-want religions that seem peculiar to many eyes, but that are deeply felt.”
Sauer said allowing religious charter schools would only increase options for where parents could send their children.
“If there is, in fact, a ‘line out the door,’ so to speak, that line out the door will increase the diversity of options for parents and students that have programs that are similar to Oklahoma,” Sauer said.
Could students be forced to attend religious schools?
Alito, who is aligned with his conservative colleagues, questioned how religious charter schools could become the only option for students in some areas, one of the criticisms that have been lodged against them.
In some jurisdictions, such as New Orleans, the only public schools are charter schools, according to Garre, who was defending the state supreme court’s position. Half the public schools are charter schools in other places, such as Denver or Washington, D.C., he said.
In Oklahoma, there are jurisdictions where children are assigned to charter schools by default, Garre said.
“You can get out of that, but you have to raise your hand and say, ‘No, I don’t want to go to the Catholic charter school,’” he said. “That raises the same problem as raising your hand in the public school and saying you don’t want to participate in prayer today.”
But Campbell, the attorney for the charter school board, argued that “the mere specter that that might result in the future is not a reason to categorically exclude religious groups on the front end.”
St. Isidore had a projected initial enrollment of 500 students from across the state. Virtual charter schools, which can have a broader reach because they’re not tied to a brick-and-mortar location, made up about 9% of the nation’s charter schools in the 2022-2023 school year.
Lawyers disagree about consequences of religious charter schools
Lawyers for the state and federal governments disagreed about the implications of the high court allowing religious charter schools.
Sauer, representing the federal government, said states that don’t want to allow religious private schools could restructure their programs.
But Garre, who represented Oklahoma, said every charter school law in more than 40 states would become unconstitutional because they all require charter schools to be public and nonsectarian.
Some states might change their laws to adapt and ramp up charter schools, but others would abandon charter schools to avoid teaching religion, he said.
“This is going to create uncertainty, confusion and disruption for potentially millions of school children and families across the country,” Garre said.
The court would also be putting itself in a position to judge future cases about whether charter schools could exclude gay teachers or teach creationism rather than evolution, Garre said.
“There is going to be a lot of line drawing,” Garre said.
