The Supreme Court case that has evangelicals divided: Tax-funded religious charter schools
In a recent Christian Post column, Dr. Richard Land wrote about an upcoming Supreme Court case concerning the fate of a Catholic charter school in Oklahoma known as St. Isidore of Seville Catholic Virtual School. Alliance Defending Freedom, the organization I work for, represents the Oklahoma agency that approved the school’s participation in the state’s charter school program. Dr. Land “pray[s] the court rules against St. Isidore.” But his take on the case is deeply misguided.
The Supreme Court has been clear in three cases over the last eight years that when a state creates a generally available public program and invites private groups to participate, it violates the Free Exercise Clause of the First Amendment to exclude religious organizations. Such religious discrimination is “odious” to our Constitution, the court has said.
That principle should dictate the result of the case. Oklahoma broadly invites private organizations to apply to operate charter schools. For it to exclude religious groups would violate the First Amendment. That’s why our client approved St. Isidore’s application.
In adopting a different view, Dr. Land repeatedly claims that charter schools in Oklahoma are “public.” But that assumes the wrong answer to a key issue in the case — whether an Oklahoma charter school like St. Isidore is a “public actor.” It is not. St. Isidore is a private, religious, nonprofit organization founded by two Catholic dioceses. It is operated by a privately selected board that sets the school’s curriculum, establishes its policies, and makes its operational decisions. It enters into a contract with the state and receives per-pupil state funding. But the government neither creates nor controls St. Isidore’s day-to-day operations.
To be sure, Oklahoma law labels a charter school “a public school established by contract.” But the state defines a “public school” merely as a “free school supported by public taxation.” So, all the “public” label means is that it’s a school funded by tax dollars. But the Supreme Court has been clear that a contract between the government and a privately operated school — even when the government provides 99% of the school’s funding — does not transform that private organization into a government actor.
That government funding doesn’t convert private religious groups into government actors is good for religious freedom. Christian organizations routinely serve their neighbors through critical charitable work, such as foster care, adoption placements, homeless shelters, and refugee ministries. And they often must contract with — or get a license from — the government to do so. If the Supreme Court rules against St. Isidore, it risks transforming Christian groups into state actors when providing these critical services. And that risks excluding them from work they have been doing since long before the government got involved.
You don’t have to take my word for it. Prominent Christian organizations like the National Association of Evangelicals and the General Council of the Assemblies of God are supporting St. Isidore. As the NAE told the court, “religious organizations that provide critical social services do not become state actors simply by receiving government funds,” and a ruling against St. Isidore “would undermine the continued provision of vital services” by religious groups.
If Dr. Land is correct, none of these organizations could maintain their religious character when they provide social services. And even if some faith-based groups could continue that work, they would be exposed to constitutional claims brought against them. As the General Council of the Assemblies of God explained to the court, “religious entities that are deemed state actors would be threatened with new, destructive liabilities.”
Dr. Land does not object to state programs that provide public funds through vouchers or tax credits to private religious schools because parents’ choices decide whether “the money” will go to “a religious … school.” Yet the same is true here. St. Isidore seeks state funding that is based on student enrollment. If no parent chooses St. Isidore, its state aid would be zero.
Dr. Land is also concerned that taxpayers “would be forced to subsidize that which they believe violates their faith affirmations.” But that’s already happening, as Dr. Land acknowledges with a passing reference to “LGBTQ+ dogma.” The Christian whose beliefs are at odds with gender ideology — the view that a person’s sex can be chosen and changed — is already funding public schools teaching that. Similarly, the nonbeliever who objects to religious education is funding vouchers sent to private religious schools.
If anything, a ruling for St. Isidore will alleviate concerns about taxpayers funding education they consider objectionable. Again, St. Isidore’s receipt of state funds hinges on parents sending their kids there. When parents make that decision, they redirect their tax dollars to education they support instead of education that violates their conscience. That’s a win-win.
Dr. Land speculates that a ruling for St. Isidore will be “catastrophic” because parents would choose a religious charter school and the demand for “traditional public schools” will drastically decline. That’s implausible. There are plenty of parents who have no interest in religious schools. Consider also that while charter schools have been operating for over 30 years, government-run schools still dominate the market.
In any event, Dr. Land highlights the current deficiencies in traditional public schools, so it’s unclear why he wants to preserve their dominance. He laments that these schools spend more time “indoctrinating” than educating and recognizes that “[b]asic skills scores for our nation’s children are scandalously low.” More high-quality charter schools help with these problems. Not only do kids in charter schools generally perform better, but charter schools also generate competition that prompts traditional public schools to improve. A rising tide lifts all ships.
Dr. Land also worries about the “impact on private schools” because “cash-strapped” parents could choose no-cost religious charter schools. But why should low-income families — who themselves pay taxes that fund traditional public schools and privately run charter schools — have no realistic option to educate their children according to their faith? Underprivileged families should enjoy the same educational opportunities as their wealthier friends.
The suggestion that religious charter schools will swallow religious private schools is unfounded. One key fact is that charter schools must admit all students while religious private schools can limit admission to parents, families, and children who share the school’s faith. Many families will prefer the latter — a close-knit religious community — so a robust market for private religious schools will remain.
Dr. Land’s final concern is that it violates the federal Establishment Clause — which forbids laws “respecting an establishment of religion”— to allow money to flow to religious institutions. This is not true. The Supreme Court recently said that “the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs,” including school-funding programs. Also, the Establishment Clause is interpreted in light of our historical traditions and understandings. From the nation’s founding until the late 1800s, every level of American government funded religious schools and education. That tradition firmly supports allowing St. Isidore in the charter-school program.
In short, Dr. Land unfortunately has it exactly backward. A ruling against St. Isidore will hurt religious freedom, shield traditional public schools from competition pressuring them to improve, and leave low-income families without the educational choices they need and deserve. People of faith should be cheering for St. Isidore’s victory.
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Jim Campbell is chief legal counsel for Alliance Defending Freedom (@ADFLegal) and counsel of record before the U.S. Supreme Court for the Oklahoma Statewide Charter School Board.
