But detractors say such schools are a fundamental violation of the separation of #ChurchAndState, could sap dollars from traditional #PublicSchools & could lead to [actual] #discrimination against #religious #minorities, #nonbelievers & #LGBTQ+ #students.
#law #SCOTUS #Constitution #judiciary #NAR #NewApostolicReformation #education #indoctrination #FederalistSociety #FarRight #PartisanCourt #ActivistCourt #USpol
As recently as a decade ago, legal experts thought the prospect of direct #public #funding for #religious public charter #schools was a long shot. But after a series of rulings by #SCOTUS & a careful legal & political campaign by #Catholic ofcls, #conservative attorneys & #Republican ofcls, the idea is on the cusp of becoming a reality.
Attorney D. John Sauer made his debut as #Trump’s solicitor general in court Wednesday.
#law #ChurchAndState #NewApostolicReformation #FederalistSociety
The case has the backing of an influential #religious liberty clinic at the University of #NotreDame’s #Law School in Indiana.
Law professor Nicole Garnett pressed the idea that denying govt funding for parochial charter schools would amount to anti-religious discrimination. She based her position on recent #SCOTUS decisions that have expanded the role of #religion in #public life.
#law #Constitution #ChurchAndState #NewApostolicReformation #education #FederalistSociety #ActivistCourt #USpol
Garnett, a former law clerk to Justice #ClarenceThomas & close friend of Justice #AmyConeyBarrett, has worked on school choice issues since the 1990s. In a 2020 paper, she argued that #SCOTUS had opened the door to remaking American #education by ruling in a Montana case that states may not exclude #religious #schools when offering subsidies or funding for PRIVATE education [totally different scenario]. #law #Constitution #ChurchAndState #NewApostolicReformation #FederalistSociety #ActivistCourt
The general counsel for the Archdiocese of #OklahomaCity knew Garnett & her work at #NotreDame, & in 2021 asked for her help.
The #law school itself has become a pipeline for #SCOTUS clerks, w/ #conservative justices increasingly hiring Notre Dame grads & faculty to work in their chambers. The school has regularly paid for justices to lecture & teach.
#law #Constitution #ChurchAndState #NewApostolicReformation #education #indoctrination #FederalistSociety #ActivistCourt #USpol
#AmyConeyBarrett, who previously taught at #NotreDame, honorably #recused herself from the case, presumably because of her relationship w/ Garnett & the #law school.
Legal experts have said that one of Chief Justice #JohnRoberts’ most significant legacies is how #SCOTUS’ #conservative majority has steadily pushed #religion into #public life.
#Constitution #ChurchAndState #NAR #NewApostolicReformation #education #indoctrination #FederalistSociety #FarRight #PartisanCourt #ActivistCourt #USpol
Many of #SCOTUS’ major rulings in this arena over the past decade involve #schools. In 2017, the court found that Missouri could not exclude a #religious preschool from a playground resurfacing program. In a 2020 Montana case, the court required states that aid #PrivateSchools to include some faith-based ones in that funding. In 2022, the court required Maine to let parents use vouchers for religious schools. The same year, it let a high school football coach #pray on a school field. #law
The trend is also evident in other areas, notably a 2023 ruling that found that #FreeSpeech protections shield some #businesses from having to provide services to #SameSex couples (the case involving a would-be Colorado wedding website designer).
Justin Driver, a Yale #law prof, said #SCOTUS’ recent #jurisprudence has recalibrated the #Constitution’s traditional balance between #religion & #secularism as laid out in the #FirstAmendment.
The #FreeExercise clause prohibits the
govt from interfering wi/the right of individuals to practice #religion, while the establishment clause prevents the govt from establishing an official religion or favoring faith over nonbelief.
“This #Oklahoma case is the potential culmination of the Roberts court effort to cast the free-exercise clause in the starring role in our constitutional order, & offer the establishment clause only a cameo,”Driver said.
The watchdog group Accountable.us & Rep Hank Johson (D-GA) issued a letter calling for #ClarenceThomas’s #recusal from the #Oklahoma case because of his ties to Nicole Garnett, the #NotreDame #law prof, who helped shepherd it.
But unlike #AmyConeyBarrett, Thomas did not #recuse.
Garnett was a clerk for Thomas in the late 1990s & has maintained a close relationship w/ him, which Accountable & Johnson say call into question his objectivity in the case.
Garnett has called #ClarenceThomas a “mentor, teacher, friend — & hero,” according to the letter. The group also says Garnett has hosted Thomas & his wife, Virginia “Ginny” Thomas, at her home. Garnett’s husband co-taught seminars with Thomas at #NotreDame law school.
#Religious leaders, politicians & #PublicPolicy experts predict an explosion of new, #government-funded #religious #schools if #SCOTUS sides w/ #Catholic church ofcls in #Oklahoma in the case. Becoming a charter school would mean a steady stream of #funding & no need to charge #tuition.
#law #Constitution #ChurchAndState #judiciary #NAR #NewApostolicReformation #education #indoctrination #FederalistSociety #FarRight #PartisanCourt #ActivistCourt #USpol
That said, many #religious educators have questions. Among them: Would #schools be able to give preference in #admissions to #students from the schools’ stated religious affiliation? Would they be allowed to continue hiring & firing employees based on #religion? Would #government #academic requirements take up so much of the school day that there’s not enough left for religious instruction?
#law #Constitution #ChurchAndState #NewApostolicReformation #education #FederalistSociety #ActivistCourt
There are also #secular implications of becoming a #CharterSchool. Charter #schools have more flexibility than traditional #PublicSchools, but there are rules about #teacher #qualifications, #curriculum #standards, #discipline processes, #employment terms, facility conditions & serving #students with #disabilities. Students are typically required to take standardized tests.
#law #SCOTUS #Constitution #ActivistCourt #ChurchAndState #NewApostolicReformation #education #FederalistSociety
“If your option is to either cease to exist or be a #religious #CharterSchool, you’d probably take a shot,” said Greg Richmond, superintendent of #schools for the Archdiocese of Chicago & a former president of the National Association of Charter School Authorizers.
Schools that are financially sound would probably opt out, he said. “They would look at this & say, ‘We’re doing fine. We don’t want all those #regulations.’”
#law #SCOTUS #ChurchAndState #NewApostolicReformation #education
During oral arguments, Justices #ClarenceThomas & #KetanjiBrownJackson both asked if the proposed #Catholic #CharterSchool is a #public or #private entity.
In response, the school board’s atty, James Campbell, said there’s no impermissible involvement of the #government in #religion because the school is established by 2 private Catholic orgs. And there’s no govt control of the #school because it would be operated by a privately selected board.
#law #SCOTUS #ChurchAndState #education
However, #Oklahoma’s AG disagreed & said #CharterSchools are #public entities that must be #secular [agreed].
Chief Justice #JohnRoberts pointed out that the court’s earlier #religious-rights decisions involved discrete #tax or #tuition credits & said this proposal “does strike me as much more comprehensive involvement” by the #government in #religion.
#law #SCOTUS #Constitution #ChurchAndState #NewApostolicReformation #education #indoctrination #FederalistSociety #FarRight #ActivistCourt #USpol
Under questioning from Justice #ElenaKagan, the attorney for the #Oklahoma #CharterSchool board emphasized that St. Isidore’s is not seeking to exclude students based on their #religion. But what if another school wanted to do that? she asked.
Atty James Campbell replied that this would require a different analysis.
“The state’s interest in that case would be very different—the interest in ensuring that #schools open to all,” he said.
#law #SCOTUS #Constitution #ChurchAndState #education
It’s an important point because while #private #Catholic #schools are generally open to #students of all faiths, other religions interested in creating #CharterSchools do consider the #religious backgrounds & practices of applicants.
Justice #Sotomayor sounded highly skeptical of the proposed school, telling its atty that if the #government is “paying religious teachers to teach their religion,” that would seem to violate the #FirstAmendment’s prohibition on govt establishment of religion.
#law
Justice #SamuelAlito grilled atty James Campbell on a claim brought by opponents of St. Isidore: that a ruling for the #Catholic #school could force #students into #religious institutions, because the school would be their “only free public option.”
Campbell said #Oklahoma #law forbids an entire #SchoolDistrict from converting to #CharterSchools. If such a situation arose, families could file a separate challenge.
#law #SCOTUS #Constitution #ChurchAndState #NewApostolicReformation #education
Justice Brett #Kavanaugh seemed to try to help the #school’s atty by getting him to respond to concerns raised by Justice #Sotomayor. “You’re not saying the state can favor one #religion over another?” Kavanaugh asked.
In response, atty James Campbell assured #SCOTUS that no #student in #Oklahoma is forced to attend a #CharterSchool. “There are plenty of other options,” he said.
#law #Constitution #ChurchAndState #NewApostolicReformation #education #FederalistSociety #ActivistCourt
Justice #ElenaKagan signaled skepticism of the proposed #Catholic #school, suggesting #CharterSchools are much like traditional #PublicSchools: They accept all applicants, they’re free, the state has a say in the #curriculum, the schools have to comply w/state #standards, & they can be closed by the state.
“When I look at #Oklahoma & its charter school program, these #schools look like regular public schools. These charter schools are, in every respect, equivalent to regular public schools”
#law
James Campbell, atty for the state charter board, replied that #Oklahoma state is simply signing a contract with a private entity with various contractual requirements.
“The state is not running these #schools,” he said. “There are dozens of other requirements that #CharterSchools are not subject to.”
#law #SCOTUS #Constitution #ChurchAndState #NewApostolicReformation #education #FederalistSociety #ActivistCourt
A skeptical Justice #KetanjiBrownJackson asked whether #religious groups should be entitled to start #CharterSchools even though #Oklahoma charter #law seeks to establish only #secular #schools.
“As I see it, [St. Isidore] is not being denied a benefit that everyone else gets,” Jackson said. “It’s being denied a benefit that no one else gets, which is the ability to establish a religious #PublicSchool.”
👏👏
#law #SCOTUS #Constitution #ChurchAndState #NewApostolicReformation #education
Justice #ClarenceThomas asked atty Michael McGinley, representing the proposed St. Isidore #Catholic #school, what it would take for a school like this to be considered a state actor—& thus presumably unable to teach #religion.
“It requires government creation & control,” McGinley argued. He cited cases involving entities where government control was not complete & said that wasn’t enough for them to be considered a state actor.
#law #SCOTUS #ChurchAndState #NewApostolicReformation #education
Justice #Sotomayor called out #Trump’s Solicitor General D. John Sauer for the federal govt’s change in position on the role of #CharterSchools. In response, Sauer said, “What changed is there’s a new administration.”
A change in admins didn’t used to mean a change the govt’s #legal position.
Sauer said his argument in favor of the #Catholic charter school does not imply that #religious charter schools would be permitted to reject students based on their religions.
Justice #ElenaKagan said she saw huge incentives for #religious groups of various faiths to start #CharterSchools if #SCOTUS ruled it was permissible. “There’s a line out the door,” she said, “if you can do this consistent with your religious beliefs.”
That would also disfavor #religions that don’t conform to other state requirements on #curriculum, she said.
#law #Constitution #ChurchAndState #NewApostolicReformation #education #FederalistSociety #ActivistCourt
The attorney representing #Oklahoma’s top #law enforcement officer told #SCOTUS that backing the #Catholic #CharterSchool would upend the traditional definition of #PublicSchools.
“It would result in the astounding rule that states not only may, but must fund & create public #religious #schools,” said attorney Gregory Garre, calling such a notion “an astounding reversal from this court’s time-honored precedents.”
#law #Constitution #ChurchAndState #NewApostolicReformation #education
Garre, representing #Oklahoma AG Gentner Drummond (R), told the justices that #CharterSchools have all the hallmarks of #PublicSchools in that they are free, open to all, funded by #taxpayers & #nonsectarian. The OK #Constitution, he said, prohibits teaching #religion as #truth in public schools.
He warned that a ruling in favor of the #Catholic school would “render unconstitutional the federal charter school program” that he said has been a success story in public #education.
Justice #ClarenceThomas pressed atty Gregory Garre on #Oklahoma’s position on the pivotal question at hand: that St. Isidore is a #PublicSchool, not a #private institution participating in a public program. Garre referenced the OK Supreme Court’s ruling that agreed.
“This court has a lot of authority, but I don’t think it has the authority to second guess [that],” Garre said.
#law #SCOTUS #Constitution #ChurchAndState #NewApostolicReformation #education #FederalistSociety #ActivistCourt
Justice Neil #Gorsuch suggested that a decision in favor of St. Isidore may not be as sweeping as some think because states could bring #CharterSchools more directly under govt control to avoid allowing #religious entities into the program. However, most states rely heavily on #private entities for their charter programs.
Under questioning from Gorsuch, Solicitor General D. John Sauer said states could avoid funding religious charter schools if they wanted to.
#law #SCOTUS #education
“Certainly one way to do it is create them directly by statute & have them controlled by directors who are themselves public officials,” he said. In some states “they’re part of the government.”
“So a holding here may apply in some states & may not apply in others,” #Gorsuch said.
“Exactly right,” Sauer replied. [wrong]
But in most states, most or all of their #CharterSchools are run by #private entities, acc/to Carol Burris, exec dir of the Network for #Public #Education.
Burris said that Alaska, Virginia, Kansas & Maryland #CharterSchools are controlled by #SchoolDistricts, & in Massachusetts, the state considers the #school & the governing nonprofit that runs it to be govt entities.
She said other states have a mix of #public & #private actors, but in most states, charter schools are generally privately run.
Burris said her group will push states to require that, if #SCOTUS mandates that #religious orgs be let into the programs.
Conservative Justices ask how a #religious #CharterSchool differs from a food bank.
At least 3 conservative #SCOTUS members—Chief Justice #JohnRoberts, Justice Brett #Kavanaugh & Justice Neil #Gorsuch —suggested to the lawyer for #Oklahoma’s AG that his position was inconsistent with a key past ruling.
In that case, known as Fulton v. City of Philadelphia, the court said Philadelphia had violated the #Constitution by not extending a foster-care services contract to #Catholic Social Services.
The conservative justices asked why a #religious #CharterSchool was different from a religiously run food bank or adoption agency that receives state government money through contract agreements.
Justice Brett #Kavanaugh signaled his support for St. Isidore’s application, saying that excluding religious #schools from the charter school program “seems like rank discrimination.”
#law #SCOTUS #Constitution #ChurchAndState #NewApostolicReformation #education #FederalistSociety #ActivistCourt
Justice #SamuelAlito asked #Oklahoma atty Gregory Garre if #CharterSchools could be more flexible in their #curriculum & give families more alternatives to choose from in #public #education. Garre said all #PublicSchools, including charters, have to conform to the state’s curriculum requirements.
#law #SCOTUS #Constitution #ChurchAndState #NewApostolicReformation #education #FederalistSociety #ActivistCourt
