The Supreme Court has made clear that governments may not discriminate against religious institutions that are otherwise eligible for public benefits and contracts.
The Supreme Court has made clear that governments may not discriminate against religious institutions that are otherwise eligible for public benefits and contracts.
I t has been in the news recently that Oklahoma regulators — specifically, the Oklahoma Statewide Virtual Charter School Board — have approved the charter application of the St. Isidore of Seville Catholic Virtual School. The school will provide a distinctively Catholic, academically rigorous program and will focus on the needs of underserved, rural, and special-needs students who will, like students attending other charter schools, receive public support. This development is part of a larger movement, which has accelerated significantly due to Covid-related school closures and increased parental engagement, in the direction of school choice.
Generally speaking, the reactions to this news have been what one might expect: Those who are attached to or invested in the near-monopoly of government-run schools and to the political power of public-employee unions are displeased; those who support educational pluralism and parental empowerment are supportive.
A noteworthy exception, though, was a New York Times opinion piece by David French, a political conservative and longtime supporter of religious freedom and educational choice, called “Oklahoma Breaches the Wall Separating Church and State.” French suggested that the Oklahoma Board’s decision is a troubling development that blurs lines that should be clear. The ruling has inappropriately “clothed a Christian institution with state authority,” he wrote. Although French supports the freedom and autonomy of religious schools, he contends that charter schools in Oklahoma are arms of the government — “state actors” in Constitution-speak — and that to “create state religious schools” violates the First Amendment’s establishment clause.
Put aside the headline writer’s tired invocation of a “wall.” This metaphor is misleading: It does not describe a relationship between government and religious institutions that has ever existed in American history and practices. The notion of a church–state wall appeared in a constituent-service letter from Thomas Jefferson and became, in the 1940s, standard in secularist commentary. But it obscures more than it illuminates and tells us nothing about Oklahoma’s expansion of educational options. French’s concern that the state has given its “authority” to the church is misplaced.
That said, French is right about many things. Our Constitution distinguishes, wisely, between religious and political authority. It does this not to marginalize religion, or to exclude faith from the public square, but to protect the integrity of religious institutions and the liberty of religious conscience. Our no-establishment rule means that secular courts do not resolve religious disputes or answer religious questions. Government officials do not select religious teachers, ministers, or doctrines. A person’s religious beliefs are not relevant to his political rights or status. Presidents don’t pick bishops.
However, our Constitution does permit reasonable and productive cooperation between governments and religious institutions. The public good of our communities is promoted in countless ways by faith-based hospitals, universities, schools, shelters, and soup kitchens, and this beneficial cooperation is entirely consistent with secular government. Religious institutions are free to be religious, even when they partner with governments.
I am confident that French agrees with the paragraph above. So why has he come out against Oklahoma’s decision to cooperate with a broader range of actors and to provide parents and families with a more diverse array of good educational opportunities?
It is essential to understand that Oklahoma’s approval of St. Isidore’s application does not violate the principle that secular and religious authorities are, and should be, distinct. French misses the fact that, in Oklahoma, charter schools do not function as state schools. The fundamental premise of St. Isidore’s application, and of the board’s approval, is that St. Isidore is not clothed with state authority merely because it receives state funds.
In Oklahoma, a wide array of charter schools — STEM schools, fine-arts schools, language-immersion schools, etc. — have been approved. Under the relevant rules, the board may grant charters — which are essentially government contracts — authorizing private actors, including for-profit ones, to operate schools. The mere fact that these schools have been invited to cooperate with the government in the provision of quality education, and that the government is paying for that education, does not make these schools government departments, arms, agencies, or subdivisions of the government, any more than a Baptist hospital becomes the government when it is reimbursed by Medicaid, or Lockheed Martin becomes the government when it fulfills a contract to build military aircraft.
As French mentions, a federal appeals court has ruled, in Peltier v. Charter Day School, that a charter school in North Carolina is a state actor and therefore bound by the 14th Amendment’s equal-protection clause. There are several federal court rulings going the other way, however, and — in any event — the question depends on the specifics of a particular state’s charter-school rules. The case cited by French, by the way, is currently on review in the Supreme Court, and it is far from clear that the case’s reasoning would be supported by French: The appeals court said that the “classical” charter school had violated the Constitution by requiring girls to wear skirts; and it has also ruled, in a follow-up case, that a private adoption agency can be a state actor.
The Supreme Court has made clear that governments may not discriminate against religious institutions that are otherwise eligible for public benefits and contracts. No state is required to fund religious schools, of course, but once a state decides to open up education funding to non-state schools, it may not discriminate against qualified schools simply for being religious. Contrary to French’s claim, the appropriate distinction between church and state is not transgressed by equal treatment and evenhandedness. And, of course, no child would be assigned to St. Isidore; the educational decision for St. Isidore belongs to parents, as educational decisions should.