Oklahoma’s high court ruled last year that a Catholic charter school — the first of its kind in the nation — violates state and federal law. Initially, Roberts appeared to agree that the stakes seemed greater than those in earlier cases about religious schools taken up by the court.

“This does strike me as a much more comprehensive involvement,” Roberts said. 

But later in the arguments, Roberts indicated that there may be less daylight between those earlier cases and the matter of the Oklahoma school. In one, a religious school wanted to participate in a state program that provided . Another focused on whether a Christian school could serve students who received .

Roberts asked Gregory Garre, a former U.S. solicitor general considered to be one of his if the test in this case was whether the St. Isidore of Seville Catholic Virtual School was “a creation and creature of the state.” Garre argued the case for Oklahoma Attorney General Gentner Drummond, a Republican who sued the school and the charter board.

“All of those” parties in the previous cases were state actors, Roberts said, “and we held that under the First Amendment, you couldn’t exclude people because of their religious belief.”

With Justice Amy Coney Barrett’s recusal, the four remaining conservative — and — justices were sympathetic to the school’s petition. Justice Brett Kavanaugh questioned how the state could prevent St. Isidore from opening a charter without running afoul of constitutional protections against religious exclusion. 

“All the religious school is saying is ‘Don’t exclude us on account of our religion,’ ” he told Garrre. “When you have a program that’s open to all comers except religion …that seems like rank discrimination.”

The debate over religious charter schools has captivated — and divided — school choice and religious advocates nationwide since early 2023, when Catholic church leaders in Oklahoma City and Tulsa first asked the state to grant a charter to St. Isidore. The case has rocked the charter sector at a time when many Christian conservatives, emboldened by President Donald Trump’s election, have pushed to infuse more biblical teaching into public classrooms. 

‘One particular faith’

The scene outside the court, where supporters and opponents alike gathered on the plaza, demonstrated the high stakes surrounding the case.

“Faith flourishes best when it is supported voluntarily,” said Rev. Paul Brandeis Raushenbush, president and CEO of Interfaith Alliance and the great grandson of Justice Louis D. Brandeis. “Will our government endorse one particular faith with taxpayer dollars? We believe the answer must be no.”

Nearby, a black-robed choir from a Virginia Christian school sang hymns and EdChoice, an advocacy organization, organized a rally in support of St. Isidore.

Nicole Stelle Garnett, the Notre Dame law professor who the legal argument that inspired the school’s application, took photos with her students and prayed with them before entering the court. Walking through the door, she said, brought back memories of her year as a clerk for Justice Clarence Thomas. 

That’s when she became friends with Barrett — the reason, many believe, the justice recused herself. The two taught at Notre Dame, were neighbors in South Bend, Indiana, and their children grew up together. Following the arguments, she said she was still processing the debate. But she later issued a statement saying that the court made “abundantly clear that Oklahoma cannot discriminate against religious organizations in a program that supports privately operated schools.”

As Roberts noted, the court’s previous cases on public funds for religious education focused on whether states must include faith-based schools in voucher-like programs. But in the Oklahoma case, leaders chose to directly fund a school that teaches Catholicism — a leap, many argue, that would violate the First Amendment’s Establishment Clause and clearly entangle government with religion. 

“These are state-run institutions,” said Justice Elena Kagan, one of court’s three liberals. “They give the charter schools a good deal of curricular flexibility, because that’s thought to be a good educational thing. But with respect to a whole variety of things, the state is running these schools and insisting upon certain requirements.”

Oklahoma attorney general , backed by , made the same argument last year to the state supreme court, parting ways with most of his conservative state’s political leaders, who support the school’s application. They include Gov. Kevin Stitt, who attended the oral arguments, and state Superintendent Ryan Walters.

Justice Ketanji Brown Jackson drew a line between the Oklahoma school and the previous cases in which religious groups sought inclusion in a state program, such as one that provided access to playground surfacing materials. In this case, she said, the religious school seeks to be exempted from state charter law, which requires schools to be non-sectarian.

“As I see it, it’s not being denied a benefit that everyone else gets,” she said. “It’s being denied a benefit that no one else gets, which is the ability to create a religious public school.”

‘Boomerang effect’

Some of the opposition to religious charters comes from unexpected quarters. The libertarian Cato Institute’s Neal McCluskey, for example, is a staunch supporter of private school choice. But he  that allowing explicit religious teaching in charter schools would “dangerously entangle the state with religion.”

If Roberts sides with Drummond, the 4-4 decision would allow state supreme court decision to stand. But if the court returns a 5-3 ruling, states that want to avoid religious charter schools could require most board members to be public officials, McCluskey said.

As Justice Neil Gorsuch suggested, proponents of religious charter schools may end up with more state control than they want. 

“Have you thought about that boomerang effect for charter schools?” he asked.

A ruling in favor of St. Isidore would “cause uncertainty, confusion and disruption for potentially millions of schoolchildren and families across the country,” Garre told the court. 

But the extent of that impact could vary by state. 

In Virginia, for example, school districts authorize and have tighter control over charter schools, which makes them more like state actors, said Carol Corbet Burris, executive director of the Network for Public Education and a frequent critic of charter schools. 

In Ohio, by contrast, nonprofits are among the organizations that can , and for-profit companies are involved in running over half of them. 

“For years, charters have benefited from being in a nebulous space between public and private,” Burris said. She notes that charter schools, for example, received paycheck protection program loans during the pandemic, but public schools didn’t. “They claim public when it is in their interest, private when it is not. There is a reason that this is the case that the charter world dreaded.” 

But Starlee Coleman, president and CEO of the National Alliance for Public Charter Schools, is less concerned about such “ivory tower” questions. She’s worried about whether the nation’s nearly 8,000 charter schools will be able to pay their bills. St. Isidore of Seville Catholic Virtual School, backed by the , argues that it’s essentially a private organization. If the court agrees, it could disrupt funding to charter schools across the country. 

“Every single state constitution in this country requires per-pupil funding to be spent only on public schools,” Coleman said. The argument that charter schools are private, she said, could “turn off the money that they want.”

In recent months, the Alliance has been bracing for a decision that could throw the charter sector into what Coleman called “operational uncertainty.” If the court declares that charters are not “state actors,” she said, federal and state funding for the schools, which serve nearly 4 million students, could be in jeopardy. Red states looking to expand school choice may be eager to sort out the legislative challenges and potential lawsuits that follow. But blue states, where leaders already want to , might be more reluctant. 

“I live in Texas. We’ll figure it out,” she said. But if states like New York, California and Massachusetts stop funding students at charter schools, Coleman asked, “Where do those kids go?”

In Colorado, state funding covers 98% of costs for the roughly 1,000 students who attend Loveland Classical Schools, said Executive Director Ian Stout. Without that funding, the two sites would likely have to close. If he had to charge tuition, most families, Stout said, couldn’t afford it. 

The of another scenario: If the court rules charters are private, school districts could just absorb existing charter schools to keep them public, or at least add more government oversight. But that would mean the loss of flexibility that has defined the sector since charter schools began in 1991.

“As public charter schools, we knowingly embrace that grand bargain —  public funds and local autonomy for accountability,” Stout said. Giving that up, he said, “would be counterproductive to the original intent of school choice.”

It’s already challenging to run charters in a progressive states like California, where the politically powerful blames charters for enrollment loss in district schools, said Rich Harrison, CEO of Lighthouse Community Public Schools. The network of four schools serves low-income minority students in East Oakland. If St. Isidore wins, he wonders if the public view of charters overall would suffer. 

“Operators like us, who are trying to do really important work in urban blue states, are going to be faced with much more scrutiny,” Harrison said. “We’re going to be lumped into this agenda on the right, which isn’t helpful at all for the communities we serve.”

‘Against their wishes’

Derek Black, a constitutional law professor at the University of South Carolina, agrees the financial fallout from a decision in favor of St. Isidore could be great. But instead of states abandoning charter schools, he’s concerned the court could force “states to fund [religious] schools against their wishes.”

He argues that because charters are “state actors,” one with an explicitly religious mission would violate the First Amendment’s Establishment Clause. 

Even if the decision falls in their favor, St. Isidore’s leaders have already decided . A late-June ruling, they said, wouldn’t give them enough time to enroll families in the online program, hire staff and make other preparations for the 2025-26 school year.

But other advocates for religious charters are getting ready to act if the court opens the door to private charter schools.

“I would love to be able to apply for 100 Jewish religious charters,” said Peter Deutsch, a former Congressman from Florida and founder of the Ben Gamla network of Hebrew language charter schools. 

He dismisses concerns from the Alliance that a ruling in favor of St. Isidore would cause states to turn their back on charter schools, calling them “an integral part of the American educational experience.”

While a Democrat, he agrees with conservatives that charter schools can practice religion. Such a ruling, he said, would “be transformative.” The vast majority of non-Orthodox Jewish students currently . 

“This has the potential to literally change the Jewish community in America in a significant meaningful way — more so than anything in my lifetime,” he said.

St. Isidore promised to accept students of any religion even though it plans to fully teach the Catholic faith. But Deutsch said Orthodox Jews might have a problem with accepting those who don’t follow their religion. 

“There is definitely a question of an Orthodox school allowing non-Jews to be in their school,” he said. “I don’t know how they’re going to deal with it.” 

Leaders of the Catholic church support St. Isidore’s argument. In to the court, the U.S. Conference of Catholic Bishops argued that educating students is “not a traditional, exclusive public function” and that in early American history, private, religious schools worked with the government to provide schooling. 

The brief also touted recent results on the National Assessment of Educational Progress showing that Catholic schools perform higher in math and reading than public schools. The “data shows why Oklahoma would want to contract with a school like St. Isidore for charter-school services,” the brief said.

But some Catholic school leaders have strong reservations about how a ruling in favor of St. Isidore would impact religious schools.

Greg Richmond, superintendent of the Archdiocese of Chicago Catholic Schools, said religious school leaders that want to open a charter should brace themselves for giving up some control in exchange for public funds. As the founder of the National Association of Charter School Authorizers, he’s intimately familiar with how the system works. 

“It’s not going to be just an infusion of cash,” he said. 

In a February post for the blog, he described scenarios that could create dilemmas for religious leaders. Could Catholic charters punish students for not attending mass? Could they fire a teacher who announces in class that he’s an atheist? He answered “no,” explaining that such outcomes would create “a lite version” of existing parochial schools.

“I actually don’t think anyone really knows how it would play out in this country,” he said. “I’m sure the courts would get pulled in again and again to mitigate some of the conflicts.” 

Disability rights advocates also warn that students could lose special education services if  charter schools are ruled to be private. St. Isidore’s says it might not accept students with disabilities whose services would “significantly alter the regular classroom process,” and that services or accommodations for students can’t be “in opposition to church teaching.”

Under the , school districts provide “equitable services,” like speech therapy, to students in private schools. Parents who choose private schools can also request a district to pay for an evaluation. But there’s no guarantee that the private school will accommodate students’ needs. 

“There’s no individualization,” said Jennifer Coco, interim executive director of the Center for Learner Equity, a nonprofit that advocates for students with disabilities in charter schools. “Whenever something that was public becomes private with regards to children, rights under IDEA, by and large, do not follow.” 

However the Court rules, the first state to grapple with its effects will be Oklahoma, where the legal battle began. Even before the justices agreed to hear the case, Barry Schmelzenbach, director of the Oklahoma Public Charter School Association, began talking with lawmakers about legislative fixes that might be necessary. He wants to prevent a situation in which “a system providing education for 50-some thousand students across the state all of a sudden can’t make payroll” because it’s been cut off from public funds.

But Schmelzenbach finds reassurance in the state’s strong history of support for school choice.

“Neither side of the debate wants to see existing charter schools harmed,” he said. “If our funding goes, then there’s also no funding for new charter schools — sectarian or not.”

In 2020, when Amy Coney Barrett came before the Senate for confirmation to the U.S. Supreme Court, one of her closest friends told a story about their year together working as law clerks in the nation’s capital.

“That last day when you leave the court, you think, ‘Wow, that’s about the coolest thing that’s ever going to happen to me,’” said Nicole Stelle Garnett. She assisted Justice Clarence Thomas during the 1998 term, the same year Barrett worked under Justice Antonin Scalia. “Now, to see my friend testifying before the Senate Judiciary Committee, to walk back up the steps 21 years later is really, really something.”

Fast forward another five years. Garnett, now a law professor at  the University of Notre Dame, is about to have her own Supreme Court moment. 

On April 30, the court will consider a legal question that has defined her career: Can explicitly religious organizations operate charter schools? At the center of the dispute is St. Isidore of Seville Catholic Virtual School, an online school in Oklahoma that planned to serve about 200 students this year before the state supreme court ruled the decision to approve it violated the constitutional provision separating church and state. 

“This could be an earthquake for American public education,” said Samuel Abrams, who directs the International Partnership for the Study of Educational Privatization at the University of Colorado, Boulder. As the country experiences a rise in Christian nationalism, a favorable ruling could invite the encroachment of religion not only into education but other areas of civic life that have traditionally been non-sectarian. “If the Supreme Court rules in favor of overturning that decision, the church-state cleavage will disappear. That’s a dramatic development for the First Amendment.”

In a sign of the case’s gravity, the Trump administration filed a in support of St. Isidore last week, arguing that “a state may not put schools, parents or students to the choice of forgoing religious exercise or forgoing government funds.”

But Barrett, who handed President Donald Trump a conservative 6-3 supermajority when she was confirmed to the court, won’t be on the bench to hear it. She recused herself, leaving no explanation for sitting out what could be the most significant legal decision to affect schools in decades. 

Observers believe the reason is her friendship with Garnett, who was an early to the school. While she’s not officially on the case and hasn’t joined any legal briefs in support of it, Nicole and her husband Richard Garnett, also a Notre Dame law professor, are both with the university’s Religious Liberty Clinic, which represents St. Isidore. 

In a deep irony, the longtime friendship between the two women, forged in Catholic faith and a conservative approach to jurisprudence, now threatens to tip the scales away from a cause Garnett has spent her career defending,

The recusal increases the chances that the vote could end in a 4-4 tie, which would leave the Oklahoma court’s decision intact. That outcome would prohibit St. Isidore from receiving public funds and likely send proponents of religious charters looking for a new test case. 

Justices typically do not offer reasons for recusing themselves. A spokesperson for the Supreme Court said Barrett had no comment on the matter.

“I feel bad for Nicole,” said Josh Blackman, an associate professor at the South Texas College of Law in Houston. “This is her life’s work, and it might go to a 4-4 decision.” 

Blackman, a proponent of religious charter schools, has known the Garnetts for years. “Amy knows what Nicole did for this case,” he said. “The case is so significant because it’s an application of both [the Garnetts’] Catholic faith and their views on constitutional law.”

‘A heady experience’

The friendship between Garnett and Barrett developed long before the legal clash over St. Isidore. When Trump nominated Barrett to replace Justice Ruth Bader Ginsberg, how the two first met at a coffee shop the spring before they became high court clerks in the late 1990s. 

“I walked away thinking I had just met a remarkable woman,” she wrote in a for USA Today.

There weren’t too many high-profile cases that year, Garnett said. But one stands out — a complaint that a Chicago ordinance against gang loitering violated members’ due process rights. The , but Barrett and Garnett performed research for dissenters Scalia and Thomas. the local law allowed police officers to do their jobs and it a “small price to pay” to keep the streets safe.

“It’s a heady experience and really hard work,” Garnett told ĂÛÌÒÓ°ÊÓ. “But we all liked each other. We socialized together.”

When Trump nominated Barrett in 2017 to serve on the U.S. Court of Appeals for the Seventh Circuit, all 34 clerks from the Supreme Court class of ‘99 — Democrats, Republicans and independents — wrote to the Senate judiciary committee. 

But none knew Barrett like Garnett. Their personal and professional lives have been intertwined for more than two decades.

When Garnett was pregnant with her first child during their year as clerks, Barrett and the other young attorneys threw her a in the court’s dining room for justices’ spouses. Barrett is godmother to the Garnetts’ third child. After their clerkship, Richard Garnett helped to the boutique Washington law firm where he worked. (He later recruited Justice Ketanji Brown Jackson, one of the court’s three liberals, to the .) 

Before Barrett cast her vote for the majority in the that struck down Roe v. Wade, the New Yorker published that described the newest justice as a “product of a Christian legal movement” shifting the court further to the right. The article irked Garnett’s daughter, Maggie, who said it dismissed “a mentor and maternal figure in my life” as a “cold, impenetrable” mouthpiece for conservatives. In a , she wrote that the article portrayed Barrett as “an almost robotic product of her male mentors 
 rather than as an accomplished and talented jurist in her own right.”  

At Notre Dame, Garnett and Barrett overlapped as faculty members for roughly 17 years. Aside from her focus on religious liberty and education, Garnett also teaches property law. Barrett’s courses focused on constitutional law and the federal courts. 

“She became a lifelong friend,” Garnett said. “She lived around the corner from us and we raised our kids together.”

And when Trump introduced the mother of seven to the nation, Garnett was seated in the Rose Garden along with senators, White House officials and other dignitaries.

Given their intersecting interests, it’s very likely that school vouchers came up in conversation. Until 2017, Barrett served as a trustee at Trinity School at Greenlawn, a classical Christian academy in South Bend, Indiana, that participates in the state’s .

Garnett, meanwhile, was honing legal arguments in favor of expanding such programs. Before joining the faculty at Notre Dame, she worked as a staff attorney for the Institute for Justice, a right-leaning law firm that has led efforts to open school choice programs to religious schools. In one case, the Wisconsin Supreme Court upheld the expansion of to include faith-based schools. 

While at the institute, Garnett also worked on , which challenged Maine’s exclusion of religious schools from a private school choice program. The state won that case, but lost when a subsequent case about the program, , came before the Supreme Court. In Carson, Barrett joined the other five conservative justices in ruling that it was unconstitutional to keep those schools out. 

Garnett, who didn’t work on Carson, said she cried when the family at its center won. 

But even with this victory, Garnett viewed aspects of school choice as unfriendly to religious freedom. She found it troubling that to keep their doors open, many Catholic schools in Indiana to charters, which required them to remove all evidence of their faith.

“Religion has been stripped from the schools’ curricula and religious iconography from their walls,” she wrote in . “There is little doubt that the declining enrollments in Catholic schools are at least partially attributable to the rise of charter schools.”

Her convictions on the role of religion in public life are both personal and professional. She sent her children to Catholic schools in South Bend and views to serve low-income children as vital to urban communities. She captured her years of scholarship on religious liberty in she wrote after Carson: “The Constitution demands government neutrality toward religious believers and institutions. Full stop.”

That view is belied by state laws that prohibit public funds from directly supporting religious schools and that define charters as public schools open to all students. Some critics predict that religious groups running charters would not have to uphold the civil rights protections of LGBTQ students, for example.

Garnett warned that attempts to create religious charters would face litigation for years. But in Oklahoma, Republicans and Catholic church leaders were ready for a fight.

At a time when schools remained shuttered due to COVID, Catholic school leaders in Oklahoma City and Tulsa wanted to expand virtual options and “reach more kids in a big rural state,” she said. A widely-circulated she wrote for the right-wing Manhattan Institute offered a legal path to get there. 

“I think that we found each other,” she told ĂÛÌÒÓ°ÊÓ. “I didn’t go looking for a client here. It’s very organic how the whole thing unfolded.”

‘Hot ticket’ 

If other recent school choice cases are any indication, there’s still a good chance the court will overturn the Oklahoma Supreme Court’s opinion. Such a precedent-setting development would have a huge impact on the nation’s educational landscape, said Michael Petrilli, president of the conservative Thomas B. Fordham Institute.

The court could say that “a charter school authorizer can’t turn down an otherwise qualified applicant just because it is religious, or proposes a religious school,” he said. “That would apply immediately to all states with charter laws on the books.”

Garnett dismissed the idea that a victory for St. Isidore will open the floodgates to thousands of religious schools becoming charters. Applicants would still have to meet state criteria for approval, she said.

The ruling “may shed light on other state’s arrangements, but it definitely will not require all states to allow religious charter schools,” she said. “That’s not on the table — and it’s not how the court works.”

But others are not so certain. 

“The implications for education and society could be profound,” said Preston Green, a University of Connecticut education professor.  “It would mean that the government cannot exclude religious groups from any public benefits program.”

With oral arguments approaching, Notre Dame law students who have worked with Garnett over the past two years have already asked if she can get them a seat in the courtroom for such “a hot ticket,” she said. 

She won’t talk about why her friend recused herself from the case, but acknowledged the stakes. 

“My hope is that it won’t go to a 4-4,”  Garnett said “My hope is that they wouldn’t have granted [a hearing] if they thought it might. But I know you don’t make assumptions about anything.”

Republican politicians who accuse public school teachers of indoctrinating students with a “woke agenda” are pushing to bring religious chaplains into the same schools to provide counseling to students.

“I think Jesus is a lot better than a psychologist,” Rep. David Marshall, R-Snowflake, said during a March 11 meeting of the Arizona House of Representatives’ Education Committee.

Marshall said that he’s been a chaplain who provides counseling for 26 years.

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, sponsored by Flagstaff Republican Sen. Wendy Rogers, was modeled after similar legislation passed in recent years in Texas and Florida.

The proposal would give school districts the option of allowing volunteer religious chaplains to provide counseling and programs to public school students. Districts that decide to allow chaplains would be required to provide to parents a list of the volunteer chaplains at each school and their religious affiliation, and parents would be required to give permission for their child to receive support from a chaplain.

Despite ample concerns that the proposal violates the and that it would open up schools to legal liability for any bad mental health advice a chaplain might provide, the bill has already passed through the Senate on a party-line vote. The House Education Committee also approved it along party lines.

Rogers told the Education Committee that the existence of any requirement for the separation of church and state in U.S. law “was a myth,” adding that she sees no harm in bringing religion into public schools.

Rogers, a far-right extremist, has , and in 2022 , calling the attendees “patriots” and advocating for the murder of her political enemies.

She has also said she is “honored” to be and regularly trafficks in antisemitic tropes. And Rogers has , appeared on and aligned herself with .

Democrats on the committee raised the alarm that Rogers’ bill would violate the Establishment Clause by allowing chaplains with religious affiliations to counsel students, while not providing the same kinds of services to students who don’t follow a religion or who follow a less-common religion with no chaplains available to the school.

An amendment to the bill, proposed by committee Chairman Matt Gress, a Phoenix Republican, requires that the chaplains be authorized to conduct religious activities by a religious group that believes in a supernatural being. The amendment would also allow a volunteer chaplain to be denied from the list if the school’s principal believes their counsel would be contrary to the school’s teachings.

Both of these changes would allow districts to exclude chaplains from The Satanic Temple of Arizona, a group that and has chapters across the country that challenge the intertwining of Christianity and government.

Oliver Spires, a minister with The Satanic Temple of Arizona, voiced his opposition to Rogers’ bill during a Feb. 5 Senate Education Committee meeting.

The legislation, Spires said, would disproportionately impact students from minority religions who see Christian chaplains providing support to their peers while no chaplains representing their religion are available.

“If a district listed a Satanist on their chaplain list, would they have your support?” he asked the committee members.

Gress’s amendment would preclude that.

Gaelle Esposito, a lobbyist for the American Civil Liberties Union of Arizona, told committee members on Tuesday that school counselors are required to undergo specialized training to prepare them to help students — requirements that religious chaplains wouldn’t have to meet, even though they’d be providing similar services.

“They will simply not be equipped to support students dealing with serious matters like anxiety, depression, eating disorders, self harm or suicidal ideation,” Esposito said. “Religious training is not a substitute for academic and professional training in counseling, health care or mental health
 Even with the best intentions, chaplains may provide inappropriate responses or interventions that could harm students.”

But as Democrats on the House Education Committee argued that Arizona should provide more funding for trained counselors and social workers to help students with mental health issues, the Republicans on the panel said that students are actually struggling with mental health issues because they don’t have enough religion in their lives.

“I’ve heard that there is a mental health crisis afflicting kids,” Gress, a former school board member, said. “Now, I don’t necessarily think in many of these cases that something is medically wrong with these kids. I think, perhaps, there is a spiritual deficit that needs to be addressed.”

Rep. Justin Olson, R-Mesa, said he’s been frustrated by the federal courts’ interpretation of the First Amendment to require the separation of church and state, claiming it has made the government hostile to religion instead of protecting it.

“I heard comments here today that this is going to harm kids — harm kids by being exposed to religion? That is absolutely the opposite of what is happening here today in our society,” Olson said. “We have become a secular society, and that is damaging our society. We need to have opportunities for people to look to a higher power, and what better way than what is described here in this bill?”

Democratic Rep. Nancy Gutierrez, of Tucson, called SB1269 “outrageous” and “incredibly inappropriate.”

And Rep. Stephanie Simacek, of Phoenix, pointed out that the courts have repeatedly ruled against allowing religious leaders to be invited to share their faith with public school students. She described Rogers’ bill as indoctrination that gives preferential treatment to students who have religious beliefs over those who don’t

“No one is saying that you may not go and celebrate your God, however you see fit,” Simacek, a former teacher and school board member, said. “But this is not the place, in public education, where our students go to learn math, reading and writing and history.”

Florida’s school chaplain law, which went into effect last July and is similar to Rogers’ proposal, has from First Amendment advocacy groups, as well as some church groups who said that allowing untrained chaplains to provide mental health support to students would have unintended negative consequences.

The option to bring chaplains into schools in Florida has not been particularly popular, with several large school districts deciding not to implement a program allowing them.

Proposed legislation similar to SB 1269 has been introduced in red states across the country this year, including in , , , and .

The bill will next be considered by the full House of Representatives. If it passes the chamber, it will return to the Senate for a final vote before heading to Gov. Katie Hobbs.

is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Arizona Mirror maintains editorial independence. Contact Editor Jim Small for questions: info@azmirror.com.

NEW ORLEANS – Three judges on the U.S. 5th Circuit Court of Appeals considered arguments Thursday over a state law that requires displays of the Ten Commandments in every Louisiana public school classroom.

A group of nine parents, each on behalf of their children, sued to block the law shortly after the Louisiana Legislature and Gov. Jeff Landry approved it last spring. A lower court ruled in November the requirement violates the First Amendment’s prohibition against establishing a state-approved religion.

Louisiana Attorney General Liz Murrill appealed that ruling, which the 5th Circuit decided only applied to the five school districts that are among the defendants in the case. For every other district, at the start of this month.

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The American Civil Liberties Union and Americans United for Separation of Church and State are also representing the plaintiffs in the case. The law firm Simpson, Thacher and Bartlett is providing its services to the parents at no cost.

In addition to the five school districts, Louisiana Education Superintendent Cade Brumley and members of the state Board of Elementary and Secondary Education are defendants.

Judge Catharina Haynes led the hearing conducted via Zoom because of the winter weather. She  questioned why the law was approved when Solicitor General Benjamin Agiuñaga presented his arguments.

“I’m respectful of the Ten Commandments, and I think everybody is,” said Haynes, federal court appointee of former President George W. Bush. “But that doesn’t mean it has to be put in every classroom in a state under the First Amendment.”

Aguiñaga said the law’s language notes the historical significance of the commandments in the foundation of the U.S. legal system merits their display in classrooms.

In addition to defending the law, Aguiñaga argued the plaintiffs filed their lawsuit too hastily because the displays had not yet been posted and no children had been harmed. The judges must rule first on whether the parents had the right to sue before considering the merits of their case.

Aguiñaga cited a 2007 ruling from the 5th Circuit in the case Staley v. Harris County, which involved a memorial display outside a Texas courthouse that included a Bible. Appellate judges first upheld a lower court ruling that deemed the monument unconstitutional, but the 5th Circuit later reversed its decision. The ruling declared that because the monument was being refurbished, it wasn’t clear yet what it would look like or whether it violated the First Amendment.

Jonathan Youngwood, an attorney for the plaintiffs, countered that legal theory in First Amendment cases does not require plaintiffs to be harmed before they seek relief.

He also stressed the religious intent of the law’s author, Rep. Dodie Horton, R-Haughton, who he quoted as saying: “It is so important that our children learn what God says is right and what he says is wrong.”

Youngwood also noted “religious references” to God and the Sabbath day in the first four commandments, which he said violate the Establishment Clause of the First Amendment.

“Of course the Ten Commandments are worthy of great respect and are profoundly meaningful to many, many people, and they have a place in our society,” Youngwood said. “They don’t have a place in this form in public schools.”

Judge Irma Carrillo Ramirez, an appointee of President Joe Biden, asked Aguiñaga if he could cite any prior court decisions that allowed displays of the Ten Commandments in a school setting. He could not but instead referenced a ruling that allowed students who are Jehovah’s Witnesses to abstain from the Pledge of Allegiance.

“The fact that they are allowed under the First Amendment to opt out of participating in the pledge doesn’t mean that they can also request that the flag be taken down or that the pledge not be said,” Aguiñaga said.

Judge Haynes voiced some skepticism of Aguiñaga’s reference to the Staley case, noting that few people are compelled to go to a courthouse while children are required to go to school.

Judge James Dennis, who former President Bill Clinton appointed to the federal bench, also heard arguments Thursday.

Haynes said the appellate judges would do their best to render a decision in the near future.

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And while a few charter and school choice leaders are quietly supporting the proposed St. Isidore of Seville Catholic Virtual School, seeing it as a watershed moment for religious freedom, others are saying, in so many words: Be careful not to drown.

While public funding would bring unprecedented growth and financial stability to such programs, it could also create a fraught path to the religious freedom they’re seeking, as the burden of complying with court orders and myriad regulations, which even autonomous charters face, could be overwhelming. 

The school and others like it will almost certainly be tied up in litigation for months or years, said Greg Richmond, of the Archdiocese of Chicago Catholic Schools. And that’ll be bad, since it will take precious autonomy away from what should be independent schools’ sole decision-making power.

Richmond said he looked the other day at the website and counted more than 150 regulations, including meeting agenda formats, residency requirements, Open Records Acts rules and more. 

“It’s odd to try to fit a religious school into that regulated charter framework,” he said. “The accountability that comes with charter schools, I think, would be a shock to many Catholic schools in terms of the quantity of measures — academically, financially, operationally.”

That said, what happens when a Catholic charter school teacher, for instance, takes to Facebook to advocate for abortion rights? Are the teacher’s free speech rights protected, as in a public school? Or can the charter school dismiss her because she’s advocating against the teachings of the church?

For their part, charter proponents fear that while the new school may be a good political fit in deep-red Oklahoma, the legal precedent it sets could both damage and perhaps even decimate the larger charter sector in coming years. “It will give opponents of charter schools yet another reason to claim charter schools are not public schools,” said Richmond, who formerly led the National Association of Charter School Authorizers. “So that does represent a threat to charter schools.”

Aside from betraying charter schools’ implicit vow to welcome and educate all students, they say it could further erode charters’ , especially in blue states. They’ve vowed to fight what could soon be one of their own.

In the most recent development, Oklahoma’s virtual charter school board last month turned down an application from the Archdiocese of Oklahoma City to open the new virtual school, a move that proponents say was largely pro forma. 

But Nina Rees, president and chief executive officer of the , said the board’s hesitation likely stemmed from “the strong probability of breaking state law if the school is approved. Should a charter school be authorized that falls outside the scope of the law, it will certainly be challenged in court, and we will be on the side of those seeking to uphold the law and affirm the public, non-sectarian nature of charter schools.”

Public or private actors?

While the Oklahoma case plays out, both sides say the coming weeks could also set in motion one of the most consequential federal court decisions ever about the future of charter schools: The U.S. Supreme Court will soon decide whether to take up a that could wreak havoc with the bedrock idea that charter schools are public schools, as they’ve maintained since the first one opened more than 30 years ago.

The case, , pits three female students against their “traditional values” school, which has required that they wear skirts. In doing so, they say, the school violated their civil rights — its founder has called female students “fragile vessels” and believes the dress code will preserve chivalry, ensuring that girls are treated “courteously and more gently than boys.”

In court filings, the school argued that even though it enjoys public funding, it is a private entity and not a “state actor,” like district schools. So the Constitution’s 14th Amendment doesn’t apply to it, the school maintained. The 4th U.S. Circuit Court of Appeals in Richmond last year rejected that argument, setting up a possible hearing in Washington, D.C., before a high court that has already struck down states’ so-called Blaine amendments, allowing public funds to flow to religious schools in small communities without sufficient school capacity.

“It’s not a new conversation,” said Rees. “What’s new about it is that we have a more conservative Supreme Court.”

For Rees, who served as a top official in George W. Bush’s Education Department, the truth of the matter seems clear: “As public schools, we can’t teach religion.”

They also must open their doors to anyone, both students and staff, she said. That could potentially bump up against schools that, as private operations, can openly reject candidates that don’t uphold their beliefs.

Rees and others say the path forward for funding these schools would more appropriately — and legally — be found in another recent development taking place in statehouses nationwide: taxpayer-funded education savings accounts, or ESAs, vouchers and tax credits, which in a few states offer as much money to families for private schooling as charter schools get per pupil.

“In some respects, if you wanted to promote religious education,” Rees said, “the ESA route will get you to that end goal faster, without rules and regulations that come if you open a religious charter school.”

In January, the charter school network Great Hearts, which operates classical education schools in four states and online, said it was doing just that: It announced it was opening a pair of Christian academies in the Phoenix area. But the schools, the network said, would be , funded by the state’s ESA program. 

Jay Heiler, Great Hearts’ CEO, said Arizona’s Empowerment Scholarship Accounts are worth about $7,000 per student, not quite enough to fund a successful private school, but enough “when supplemented with some philanthropic effort, which we’re out there pushing to try to make ends meet, partner-to-partner, with churches that have some existing classroom infrastructure.”

But Brett Farley, executive director of the , which represents the church on public policy issues, said that in most states, ESAs don’t typically provide anything near full per-pupil funding, leaving students a dearth of options, especially in rural areas.

While Rees’ group has vowed to oppose schools like St. Isidore and efforts to reframe charters as private actors, others aren’t so sure. 

Heiler said Great Hearts, which has operated charter schools for more than 20 years, “will continue to follow that pathway,” keeping its religious schools private. But it also in the North Carolina case, arguing that the Supreme Court should decide that charter schools “are not presumptive state actors.” Failure to do so, it said, “will wreak havoc” on education systems more broadly and innovative charters specifically. 

Held up in court ‘for a long time’

Farley said the Oklahoma virtual charter board’s rejection last month was largely routine, giving the archdiocese 30 days to revise aspects of the plan that include how they’ll provide rural broadband statewide and special education services to disabled students. He said the board also wanted to know more about how the archdiocese will address the question of whether a religious public school violates state statute.

“We’re confident we’ll be able to answer all three of those questions sufficiently, and then we’ll move on to a vote,” he said. He anticipated that approval would take place in June. 

But in interviews, he whether the new virtual school would admit LGBTQ students or hire such staff members, saying it would follow state regulations while maintaining its right to operate according to religious beliefs. Asked if gay, lesbian or transgender educators are invited to apply for employment at the school, Farley declined to comment. Like other public schools, charters are prohibited from discriminating based on religious belief, gender identity or similar factors.

He has said he believes that charter schools are non-state actors — Oklahoma’s charter framework, he said, is “very loose.”

M. Karega Rausch, president and CEO of the charter authorizers’ group, said even Oklahoma law is clear: It’s unlawful for a public school, including a charter school, to provide a sectarian education.

Whatever happens with the Oklahoma board, Rausch said, the case will be tied up in litigation “for a long time.”

If the Oklahoma board ultimately rejects the St. Isidore application, the archdiocese can appeal the decision to the state board of education.

Gov. Kevin Stitt has for the effort, but new Attorney General Gentner Drummond has slightly complicated the process: In February, he withdrew an opinion from his predecessor that said the state board would be on solid legal ground if it approved a religious charter school. 

His said state law is “currently unsettled” as to whether charter schools are so-called “state actors” or private school operators. Like many in the sector, he’s awaiting the decision in the North Carolina case.

‘Proceed with caution’

Kathleen Porter-Magee, superintendent of , a network of 11 independent Catholic elementary schools in New York City and Cleveland, said high-performing private schools like hers would love the extra per-pupil allotment that comes with being a charter school: It costs her about $11,500 per student to keep the doors open, yet her students bring in just $800 apiece from New York state in the form of reimbursements for such as required assessments, immunizations and attendance reports. 

Were Partnership’s New York schools to become charters, they’d stand to bring in more than $16,000 per pupil, which the city’s charter schools typically receive, and about half of what they’d get if they were district schools. “We wouldn’t know what to do with that much money,” she said. “It would be just absolutely game-changing for us.”

But it would also complicate matters. “How much freedom do those religious organizations have to live out their faith every day if they are technically running public charter schools?” she asked.

Like many in the school choice world, she’s closely watching what happens in Oklahoma. She’s “deeply conflicted” about the case: Denying public funding to non-profits because of their religious status “feels wrong,” she said, so she supports the archdiocese’s application for charter status.

“From a constitutional standpoint, I think it is the right decision. I think it makes sense. But I just think it’s like, ‘Proceed with caution.’ ”

The Court’s ascendant conservative majority, which has proven increasingly friendly to petitions concerning religious freedom over the last few years, in Kennedy v. Bremerton, one of the last to be determined in the 2022 term. The case stretched back to 2015, when conflict first arose between the coach, Joseph Kennedy, and the leadership of the Washington State public high school where he worked. 

After an escalating disagreement over Kennedy’s practice of post-game prayer — and whether observers would assume it constituted a government endorsement of religion — he was placed on administrative leave and given a poor professional evaluation. He subsequently left the job.

In a lengthy opinion, Justice Neil Gorsuch argued that the school’s actions violated Kennedy’s First Amendment rights, likening his postgame ritual to the protected actions taken by classroom teachers when donning a Muslim headscarf or praying silently before lunch in a cafeteria.

“Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment,” Gorsuch wrote. “The Constitution neither mandates nor tolerates that kind of discrimination.”

While addressing a relatively narrow corridor of First Amendment jurisprudence — the case doesn’t deal directly with officially mandated prayer in educational settings, or even academically related functions — Kennedy will likely change the way school districts and other public authorities approach public acts of faith. Specifically, the ruling signals a willingness to reconsider the balance between the Constitution’s Establishment Clause (barring the establishment of a state religion) and the Free Exercise Clause (prohibiting the government from interfering in religious practice). 

In a move that during oral arguments in April, the majority effectively sidelined the so-called Lemon test, a three-part rubric for determining whether a particular government action subverts the Establishment Clause. Derived from the 1971 Lemon v. Kurtzman case, the rule held that those acts must serve some secular purpose; that they neither promote nor encumber religion; and that they not foster “excessive entanglement” between government and religion.

Dismissing the test, Gorsuch said that the Supreme Court had long since abandoned its “abstract and ahistorical approach to the Establishment Clause.” 

Joshua Dunn, a political scientist at the University of Colorado Colorado Springs, said that in the wake of the ruling, public schools “will have a more difficult time claiming that the speech of employees is part of their official duties and thus subject to government control.”

“The most important result of today’s opinion is that it completely lays to rest the Lemon test,” Dunn wrote in an email. “The vast majority of cases where [this test was] applied involved public education. Instead, the court said that judicial application of the Establishment Clause should be guided [by] the clause’s historical understanding and application. Schools and school districts will certainly have more flexibility in accommodating religious expression after today.”

Writing for the Court’s liberal minority, Justice Sonia Sotomayor characterized the plaintiff’s actions as anything but quiet and personal, citing multiple photos of football players joining their coach in prayer. To call Kennedy a private actor, even as he held a public role and prayed in an open venue, was to “misconstrue the facts,” she argued.

“The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field,” wrote Sotomayor. “Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history.” 

The decision is only the latest in which conservative members of the Court cautioned local governments to more stringently avoid what they characterized as discrimination against religion. Last week, the same 6-3 majority struck down a Maine statute barring parochial schools from accepting public funding. That ruling, and several others preceding it, have led some legal experts to wonder if further blurring of the public and religious spheres is still to come. 

The full spectrum of religious activity across the nation’s 130,000 public schools, whether led by students or staff, is difficult to know for certain. In conducted by the Pew Research Center, roughly four-in-ten American teenagers said they regularly witnessed prayers held before sporting events. About six-in-ten respondents said they saw prayers occur before lunch.

Rachel Laser, president of the group Americans United for Separation of Church and State, which represented the Bremerton school board in the case, said the ruling represented “the greatest loss of religious freedom in our country in generations.”

“Today, the court continued its assault on church-state separation, by falsely describing coercive prayer as ‘personal’ and stopping public schools from protecting their students’ religious freedom,” she said. “It is no coincidence that the erosion of the line between church and state has come alongside devastating losses on so many of the rights we cherish.”