In last week’s Washington Post, Laura Meckler and Michelle Boorstein explore what they call “a fading church-state line” in education:

“The expansion in voucher programs is part of a broader move in some states toward more government-sponsored religion inside public schools. New laws allow schools to hire chaplains for counseling…. In West Virginia, a new law allows teachers to discuss alternative theories to evolution. Seven states have passed measures mandating elective courses focused on the Bible… In Oklahoma, the state Supreme Court in April considered what would be an unprecedented step toward the mingling of church and state in education, weighing whether the state could directly fund what would be the nation’s first religious charter school.”

It has become acceptable for states to award tax funded tuition vouchers to private schools that teach religious doctrine. In recent decades, the U.S. Supreme Court has ignored the First Amendment Establishment Clause and declared that if states permit private schools in general to accept state funded tuition vouchers, the state’s exclusion of religious private schools would violate the free exercise of religion.

The shifting legal prioritization of the Free Exercise Clause over the Establishment Clause has not happened by accident.  Activists have worked with far-right legal firms to bring a succession of legal challenges, with each lawsuit designed to shift the Supreme Court’s interpretation a little farther away from protecting the separation of religion and government. In an earlier report this spring, Meckler laid out some of this history: “In recent years, religious activists have succeeded in tearing down what had been a clear delineation between public funding and religious education. In three (of the most recent) significant rulings, the U.S. Supreme Court found that religious institutions may not be excluded from taxpayer-funded programs that were available to others.  In a 2017 case, the high court ruled that a church-run preschool in Missouri was entitled to a state grant that funded playgrounds. In 2020, the court ruled that Montana… include religious schools in a program giving tax incentives for supporting private-school tuition scholarships. And last year, the court said that a Maine voucher program that sent rural students to private high schools had to be open to religious schools.”

Two attorneys at the American Civil Liberties Union Program on Religion and Belief, Heather Weaver and Daniel Mach describe the U.S. Supreme Court’s break with the past to sanction a radically new understanding of the U.S. Constitution: “For nearly 75 years, the court has recognized that both of the First Amendment’s religion clauses are vital to protecting religious freedom: The Establishment Clause protects against governmental endorsement and imposition of religion, and the Free Exercise Clause ensures the right to practice your faith without harming others. No more. The court has increasingly treated the Establishment Clause as a historical footnote, threatening both the independence of religion and the religious neutrality of the state.”

Weaver and Mach worry about the current Court’s elevation of the Free Exercise over the Establishment clause: “Avoiding compulsory taxpayer support for religion lies at the heart of the Constitution’s religious liberty protections. In fact, James Madison, the principal author of the First Amendment, explicitly warned against taxpayer funding of religion, including religious education because it would be the first step in allowing the government to force citizens to confirm to the preferred faith of those in power.”

The significance of the changing legal interpretation of the First Amendment has been amplified by the explosive growth of private school tuition vouchers across the states. Last week Meckler and Boorstein reported that voucher programs, “popular with conservatives. are rapidly growing in GOP-run states, with a total of 28 states plus D.C. operating some sort of voucher system. Eight states created or expanded voucher programs last year, and this year, Alabama, Georgia, and Missouri have approved or expanded voucher-type programs… Voucher programs… have grown particularly large in a half-dozen states. In each of these, participating families have overwhelmingly chosen religious schools… In Ohio, the GOP legislature last year significantly expanded its voucher program to make almost every student eligible for thousands of dollars to attend private school. As a result, more than 150,000 students are paying tuition with vouchers this year—up from about 61,000 in 2020. About 91 percent of this year’s voucher recipients attend religious schools…. In Wisconsin, 96 percent of about 55,000 vouchers given this school year went toward religious schools…. In Indiana, 98 percent of vouchers go to religious schools… In Florida… At least 82 percent of students attend religious schools…. And in Arizona, more than 75,000 students are benefiting from the Empowerment Scholarship Program, which pays for any educational expense… Most of that money went for tuition, 87 percent of it to religious schools.”

Meckler and Boorstein add: “The fact that so much of the money is going to religious schools reflects at least in part the dominance of religious institutions among the nation’s constellation of private schools.  Nationally, about 77 percent of students attending private school go to religious schools…. That has benefited families that would otherwise be paying tuition themselves and also bolstered the schools that receive money, instead of having to spend funds on financial aid.  At some Ohio schools, as many as eight in 10 students attend with the help of vouchers.”

In a recent opinion column for Education Week, the director of the National Education Policy Center and a professor of education policy at the University of Colorado-Boulder, Kevin Welner explores the legal case now challenging the nation’s first religious charter school.  The authorization of St. Isidore of Seville Catholic Virtual Charter School a year ago by the Oklahoma Virtual Charter School Board was challenged under Oklahoma’s state constitution by Gentner Drummond, Oklahoma’s attorney general. After oral arguments in April, the case is expected to be decided soon by the Oklahoma Supreme Court.

At issue of course is whether religious charter schools would not, in fact, be religious public schools, which the Establishment Clause would seem to prohibit. Welner joins many in worrying about the constitutionality of a religious charter school, sanctioned and funded by the state: “Since charters are privately operated yet are statutorily part of the public school system, courts are split on the issue of whether or when charter schools should be legally treated as public. The U.S. Supreme Court has yet to directly address this question. But the Oklahoma charter lawsuits may well serve as its vehicle for weighing in, which alarms those who have long argued that charters are public.”

Welner examines an additional primary concern about religious charter schools and St. Isidore in particular, whose operators, the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa have explicitly proposed to discriminate by excluding students who don’t comply with the school’s religious requirements: “St. Isidor, the Oklahoma charter school, also argues that the state cannot deny religious organizations the freedom to exercise their religious beliefs in the operation of those schools. As alleged in a second lawsuit currently challenging Oklahoma’s decision to grant this charter, the school stated its intent to discriminate in admissions, discipline, and employment based on religion, sexual orientation, or gender identity.”  That second case is moving forward now that a judge has denied several motions to dismiss.

Welner knows that even if the Oklahoma Supreme Court finds St. Isidore of Seville Catholic Virtual Charter School unconstitutional under Oklahoma’s constitution, the case is designed for an appeal to the U.S. Supreme Court to try to set a precedent to permit religious charter schools.  He worries:

“To put it bluntly, the current U.S. Supreme Court has shown an inclination to make highly political decisions, even if those decisions fly in the face of established facts and precedent… States, the highest court is likely to rule, must allow church-run charters to exist, to proselytize, to teach their religious beliefs as truth, and even to engage in faith-based discrimination against students.”