OKLAHOMA CITY — A new office within the Oklahoma State Department of Education will promote expressions of religion and patriotism in public schools.

The head of the agency, state Superintendent Ryan Walters, announced Tuesday he established the Office of Religious Liberty and Patriotism. He said the new division will align with incoming President Donald Trump’s aim of protecting prayer in schools.

The office will investigate alleged abuses against religious freedom and patriotic displays, according to a news release from the Education Department.

Walters cited a September 2023 incident in which a from a classroom at the urging of the Freedom From Religion Foundation, which contended it was unconstitutional for a public school to allow religious displays. At the time, Walters said the removal was “unacceptable.”

The that students and public school employees are permitted to pray on school grounds, but school employees cannot lead students in prayer or other religious activities while doing their jobs. The Court in public schools, finding it a violation of the U.S. Constitution’s prohibition of government-established religion.

Walters said public schools have been “ground zero” for erosion of religious liberty. While calling church-state separation a “myth,” he , sought to and advocated for opening a in the state.

“It is no coincidence that the dismantling of faith and family values in public schools directly correlates with declining academic outcomes in our public schools,” Walters said in a statement Tuesday. “In Oklahoma, we are reversing this negative trend and, working with the incoming Trump Administration, we are going to aggressively pursue education policies that will improve academic outcomes and give our children a better future.”

A group of 32 parents, students, teachers and faith leaders from Oklahoma to block Walters’ Bible education mandate and to stop the use of state funds to buy Bibles. The plaintiffs are represented by multiple national legal groups, including the Freedom From Religion Foundation.

“Superintendent Ryan Walters cannot be allowed to employ the machinery of the state to indoctrinate Oklahoma’s students in his religion,” foundation co-president Annie Laurie Gaylor said last month. “Thankfully, Oklahoma law protects families and taxpayers from his unconstitutional scheme to force public schools to adopt his preferred holy book.”

Since the Nov. 5 election, Walters has been paving the way in the state Education Department for major policy changes from the next Trump administration, including the potential closure of the U.S. Department of Education. Trump has proposed eliminating the federal agency and sending education funds in block grants to states.

Among other policy goals, Trump has advocated for more patriotic education and giving parents a greater role in the public school system, including in the hiring and firing of principals.

Walters said Monday he is convening an advisory committee of Oklahoma education leaders and policymakers to implement the Trump education agenda.

The state superintendent similarly has supported pro-America education and patriotic displays. He invited right-wing policy advocates and conservative media personalities, most of whom live out of state, to help .

In August, Walters issued guidelines instructing all districts to develop a policy for displaying the U.S. flag. He did so while criticizing Edmond Public Schools, which had asked a high school student to remove an American flag from his truck.

The Edmond district did so because it had an existing policy prohibiting students from bringing flags of any kind to school. The district displays the American flag in front of every school and in each classroom, it said in a statement.

Walters quickly took aim at Edmond, saying “no Oklahoma school should tell students they can’t wave the American flag.”

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Carson was a bit odd. First, it concerned town-tuitioning, through which families in districts not sufficiently large to maintain schools at all levels can attend private institutions using public funds. Such programs only exist in three states: Maine, Vermont, and New Hampshire. The case also dealt with, basically, a loose end from previous cases that had reached the Supreme Court: Is choice of a religious school protected based on a school’s “status” — it identifies as religious — but not its “use” — it acts on that religion?

Town-tuitioning is different from most choice vehicles, such as vouchers, which allow funds to follow students regardless of whether a district school is available. Maine argued that tuitioning makes private schools essentially stand-ins for public schools, but that was not central to the decision. No matter what the intention, Chief Justice Roberts stated the simple core principle in the , “The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.” 

Far from a tectonic shift, the ruling was consistent with precedent going back to in 2002, in which the Court ruled that public funding reaching a religious school was not a violation of the First Amendment’s Establishment Clause as long it got there via families’ free choices. Carson also built on (2017), in which the Court ruled that an institution could not be excluded from a “generally available” state benefit just because it was religious, and (2020), which said a state could not exclude schools from choice programs simply because they were religious.

Viewed against the backdrop of these other cases, Carson essentially cemented the precedent that religious schools cannot be singled out for exclusion from private choice programs, including by rendering religion meaningless with a “use” prohibition. 

But this leaves much still to be resolved. 

The first reaction from Maine Attorney General Aaron Frey after the ruling was to declare that the schools Carson petitioners wanted to attend discriminated against other religions and LGBTQ families. “They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff,” . Frey said that going forward he would “ensure that public money is not used to promote discrimination, intolerance, and bigotry.” 

This is almost certainly the next major frontier in choice litigation: What restrictions can governments put on religious schools?

We’ve seen something of a in Maryland, where the state removed the Bethel Christian School from its BOOST voucher program because the school’s handbook said Bethel believes marriage is between a man and a woman and gender is assigned by God at birth. It also said, “Faculty, staff and students are required to identify with, dress in accordance with, and use the facilities associated with their biological gender.” The state said the policies were discriminatory and, hence, Bethel was ineligible for BOOST. 

The school sued for religious discrimination. It lost in a lower court in 2020, but in 2021 a U.S. district court sided with Bethel. The ruling, however, dodged whether the state had to allow Bethel to follow its beliefs. Judge Stephanie Gallagher held that there was no evidence that the school had ever acted on them, so Bethel was being punished unconstitutionally for the speech in its handbook, not its religion. 

Another possible arena for legal action: Religious charter schools. Charters are public schools but are run by private groups. Carson, and Espinoza before it, may have opened the legal door for groups to sue for the right to establish religious charters. If religion cannot be a reason to exclude schools from choice programs, that arguably includes charters.  

This is a viable theory, but there does not seem to be a major groundswell to act on it, with the idea mainly for . Meanwhile, Nina Rees, president of National Alliance for Public Charter Schools, has against it, saying flatly, “Charter schools, as public schools, can never be religious institutions.” 

Ending school choice programs may also be a target for those who oppose choice in general, or religious options in particular. If choice cannot exclude religious schools, then the only option is to terminate the programs.

That, however, might well be mooted by a broader legal campaign to extend the rationale for religious inclusion in choice programs to all K-12 education: If government taxes everyone to pay for secular public schools, it must allow religious families to take their allocation to religious institutions. Without religious options, public schooling itself violates religious free exercise. 

This is not a new conclusion, but was anticipated by Justice Stephen Breyer in his Espinoza dissent: “If making scholarships available to only secular nonpublic schools exerts ‘coercive’ pressure on parents whose faith impels them to enroll their children in religious schools, then how is a State’s decision to fund only secular public schools any less coercive?” 

The logical answer is that it is not — it, too, elevates the secular over the religious.

Were the Supreme Court to agree with that, unlike the incremental change in Carson, it would, indeed, be Earth shaking. 

Neal McCluskey is the director of the Cato Institute’s Center for Educational Freedom.