It took about 10 minutes after the U.S. Supreme Court’s ruling Monday afternoon for Keith McNamara and over 1,000 employees at the Department of Education to learn they were officially fired. Signed by Jacqueline Clay, chief human capital officer, the email message thanked them for their service and said Aug. 1 would be their final day. 

“Came awful quick after the news dropped,” said McNamara, who worked as a data governance specialist at the department before he was dismissed during mass layoffs in March. 

The department’s speed appeared to confirm just how eager the Trump administration is to hollow out an agency it says never should have been created in the first place. It was “a shame,” U.S. Secretary of Education Linda McMahon said in a statement, that the court had to handle a lawsuit over “reforms” she said voters elected President Donald Trump to deliver. The ruling, she , brings the administration “one step closer to returning education to the states.”

But her words landed like a gut punch to employees who have been on paid leave for months, many of whom viewed the job as a personal mission to open up educational opportunities and protect students’ civil rights. 

“Some people said they cried [as] soon as they saw the [ruling],” said Denise Joseph, a former management and program analyst in the Office of Postsecondary Education.

She was among the first to be placed on administrative leave in January during the initial wave of Department of Government Efficiency cuts. Now, she plans to move on with securing a new job. But her thoughts Monday were with colleagues who had hoped to be reinstated. “It’s not a good day for them, and it’s not a good day for education and our country.”

Elimination of the department is a prize conservatives have been chasing since it opened in 1979. Former President Ronald Reagan attempted to close it shortly after he took office. But the 1983 report, which warned that American students were falling behind their international peers, spurred a larger federal role in education. 

Speaking to reporters Tuesday, he prefers the federal government to have “a little tiny bit of supervision, but very little, almost nothing” over education. “To make sure they speak English, that’s about all we need,” he said.

Monday’s ruling overturned a lower court injunction temporarily halting the layoffs. For now, the opinion gives the administration the green light to continue downsizing the agency without congressional approval, something experts say Trump has little chance of getting.

Lawmakers in favor of closing the agency can use Monday’s ruling to “build the case that fewer people are needed and functions that are necessary could easily be transferred to other agencies,” said David Cleary, a former Republican education staffer for the Senate and now a principal with The Group, a Washington lobbying firm. 

McMahon wasted no time attempting to make that point. On Tuesday morning, she announced that she would begin transitioning career and technical programs, adult education and family literacy to the Department of Labor. The said the move “marks a major step in shifting management of select [Education Department] programs to partner agencies.” 

Transferring student aid to the Treasury Department, and special education to Health and Human Services are among the other proposals.

One former education secretary said it’s “incredibly naive” to think that Trump intends to preserve education programs if he manages to offload them to other agencies.

“The goal is not to have other agencies function. The goal is to break government,” said Arne Duncan, who served as secretary during the Obama administration. “You can’t lose the forest for the trees here, unless you’re just trying to hide from reality.”

The public isn’t sold on the idea either. A from EdChoice, which supports Trump’s school choice agenda, showed that less than half of adults and parents with kids in school are in favor of closing the department. 

But conservatives argue the ruling has forced “serious conversation about what the federal role should be and whether it makes sense to have a cabinet-level department,” said Jim Blew, a founder of the conservative Defense of Freedom Institute and a former department official during Trump’s first term.

The court’s decision doesn’t end the case against the department. The challenging the firings, brought by 21 states and a coalition of districts and unions, still has to work its way through the lower courts — a process that could take many months.

“It is still technically possible for the states to prevail,” said Johnathan Smith, chief of staff and general counsel at the National Center for Youth Law. 

‘Sophie’s choices’

The Supreme Court’s action effectively cuts in a department that had just over 4,100 employees when Trump took office. The Office for Civil Rights, the Institute for Education Sciences, the National Center for Education Statistics, which runs the tests known as the Nation’s Report Card, and Federal Student Aid were programs hardest hit by the combination of firings and voluntary departures.

The secretary promises that the department is still handling its “statutory duties,” but there are signs of from the gutted staff. Even before the White House Office of Management and Budget paused nearly $7 billion in federal funds that were due to states July 1, the department for small, rural schools and kept states waiting on news of their Title I allotment for low-income students. Despite a court order, the department still hasn’t processed to states.

While OCR is now updating a website that lists , it sat dormant for several months after Trump took office. Another page with hasn’t been updated since January. In a , Rachel Oglesby, the department’s chief of staff, said of 5,164 civil rights complaints since March, OCR had dismissed 3,625 — signs, advocates say, that the department has fallen behind on its obligations to protect vulnerable students.

The court’s ruling “doesn’t augur well for the department being able to fulfil its mission,” said McNamara, the data specialist.

Others worry about states’ ability to take the driver’s seat on education, especially when the massive tax and spending package the president signed July 4 puts for health care and nutrition programs on their shoulders. 

“They’re going to be making some Sophie’s choices in terms of what gets funded and what doesn’t. Education is going to be on the chopping block,” said National Parents Union President Keri Rodrigues. 

Two states, Iowa and Oklahoma, have asked the department to combine their federal funds into a block grant, an idea several other red states also support. McMahon backs the plan and often like Louisiana and Mississippi, which have made strong progress in reading, to suggest that the federal government should get out the way. But Rodrigues noted that it was federally funded research and a regional education lab that helped make those improvements possible.

Maryland state Superintendent Carey Wright, who oversaw the reforms in Mississippi, didn’t just “sprinkle some literacy dust” over schools to raise proficiency rates, she said. Other red states are benefitting from a federal grant that pays for training, assessment and support from higher education to improve students’ performance in reading. 

The parents union focuses much of its advocacy work at the state level, but Rodrigues said federal leadership is still necessary.

“I don’t know how you make progress without a department, without staff, without a Congress that’s willing to enforce federal law,” she said. 

‘Serious conversation’

The court’s decision came a week after it ruled that Trump could proceed with mass firings at other federal agencies. The , for example, began letting more than 1,300 people go last Friday. But that’s a far larger agency, with over 70,000 employees. The Education Department is the federal government’s smallest. 

As is customary on emergency appeals, the court’s conservative majority offered no explanation for overturning the preliminary injunction issued by the U.S. Court of Appeals for the First Circuit. Justice Sonia Sotomayor, joined by liberal Justices Ketanji Brown Jackson and Elena Kagan, wrote a 19-page dissent.

“The president must take care that the laws are faithfully executed, not set out to dismantle them,” she wrote. “That basic rule undergirds our Constitution’s separation of powers.”

Mark Schneider, a former director at the Institute for Education Sciences appointed by Trump during his first term, has long advocated for radically restructuring a federal research program that he argued had grown stodgy and resistant to change. But he wonders what McMahon can accomplish with a decimated staff.

“NCES still exists,” he said, referring to the National Center for Education Statistics. “There are three or four people in it. NCER [the National Center for Education Research] still exists. There’s one person in it. So the question is: What happens to that?”

But, he wonders, “Does the department have a plan?” Given the last few months, he said luring quality people back may prove tricky. “Even if you get any authorization to recruit, it’s going to be difficult,” he said.

A future administration could also rebuild the agency if Congress doesn’t eliminate it, but lawmakers would have to appropriate money for that, noted Neal McCluskey, director of the libertarian Cato Institute’s Center for Educational Freedom. 

To Duncan, the damage would be hard to undo. 

“It’s an assault on K-12, and it’s an assault on higher education,” he said. “… Higher education has been the goose [that] laid the golden egg for decades in the United States and attracted the best and brightest around the world to come here to learn and to create jobs. We’re shutting all that down.”

The 74 Writers Amanda Geduld and Mark Keierleber contributed to this report.

Clarification: An earlier version of this story contained wording that may have implied Title I disbursements to states were late this year. State officials say it was the department’s projected Title I allocations that came months later than usual.

The Supreme Court on Monday allowed Education Secretary Linda McMahon to move ahead with firing more than 1,300 employees at the U.S. Department of Education as the Trump administration aims to eliminate the federal agency. 

While the states that sued and the government’s lawyers will continue to argue the case in the lower courts, McMahon said the opinion shows that the president “has the ultimate authority to make decisions about staffing levels, administrative organization and day-to-day operations of federal agencies.”

Justice Sonia Sotomayor, joined by Justices Ketanji Brown Jackson and Elena Kagan, dissented with the ruling.

“As Congress mandated, the department plays a vital role in this nation’s education system, safeguarding equal access to learning and channeling billions of dollars to schools and students across the country each year,” Sotomayor wrote. “When the executive publicly announces its intent to break the law, and then executes on that promise, it is the judiciary’s duty to check that lawlessness, not expedite it.”

When a white teacher at Decatur High School used the , students walked out and marched in protest. But Reyes Le wanted to do more.

Until he graduated from the Atlanta-area school this year, he co-led its equity team. He organized walking tours devoted to Decatur’s history as a thriving community of freed slaves after the Civil War. Stops included a statue of civil rights leader , which replaced a Confederate monument, and a historical marker recognizing the site where Rev. Martin Luther King, Jr. was for driving with an out-of-state license.

But Le feared his efforts would collapse in the face of the Trump administration’s crackdown on diversity, equity and inclusion. An existing state law against “divisive concepts” meant students already had to get parent permission to go on the tour. Then the district threw out two non-discrimination policies April 15. 

“I felt that the work we were doing wouldn’t be approved going into the future,” Le said.

Decatur got snared by the U.S. Department of Education’s to pull millions of dollars in federal funding from states and districts that employed DEI policies. In response, several organizations sued the department, calling its guidance vague and in violation of constitutional provisions that favor local control. Within weeks, three federal judges, including one Trump appointee, Education Secretary Linda McMahon from enforcing the directives, and Decatur promptly .

The reversal offers a glimpse into the courts’ role in thwarting — or at least slowing down — the Trump education juggernaut. States, districts, unions, civil rights groups and parents sued McMahon, and multiple courts the department skirted the law in slashing funding and staff. But some observers say the administration is playing a long game and may view such losses as temporary setbacks.

“The administration’s plan is to push on multiple fronts to test the boundaries of what they can get away with,” said Jeffrey Henig, a professor emeritus of political science and education at Teachers College, Columbia University. “Cut personnel, but if needed, add them back later. What’s gained? Possible intimidation of ‘deep state’ employees and a chance to hire people that will be ‘a better fit.’ ”

A recent example of boundary testing: The administration nearly $7 billion for education the president already approved in March.

But the move is practically lifted from the pages of , the right-wing blueprint for Trump’s second term. In that document, Russ Vought, now Trump’s director of the Office of Management and Budget, argues that presidents must “handcuff the bureaucracy” and that the Constitution for the White House to spend everything Congress appropriated.  

The administration blames Democrats for playing the courts. White House Deputy Chief of Staff Stephen Miller “radical rogue judges” of getting in the president’s way. 

The end result is often administrative chaos, leaving many districts unable to make routine purchases and displaced staff unsure whether to move on with their lives. 

While the outcome in the lower courts has been mixed, the Supreme Court — which has on much of Trump’s agenda — is expected any day to weigh in on the president’s biggest prize: whether McMahon can permanently cut half the department’s staff. 

In that case, 21 Democratic attorneys general and coalition of districts and unions sued to prevent the administration from taking a giant step toward eliminating the department.

“Everything about defunding and dismantling by the administration is in judicial limbo,” said Neal McCluskey, director of the libertarian Cato Institute’s Center for Educational Freedom. As a supporter of eliminating the department, he lamented the “If the Supreme Court allows mass layoffs, though, I would expect more energy to return to shrinking the department.”

The odds of that increased last week when the that mass firings at other agencies could remain in effect as the parties argue the case in the lower courts.

While the lawsuits over the Education Department are separate, Johnathan Smith, chief of staff and general counsel at the National Center for Youth Law, said the ruling is “clearly not a good sign.” His case, filed in May, focuses on cuts specifically to the department’s Office for Civil Rights, but the argument is essentially the same: The administration overstepped its authority when it gutted the department without congressional approval.

Solicitor General John Sauer, in to the Supreme Court, said the states had no grounds to sue and called any fears the department couldn’t make do with a smaller staff merely “speculative.”

Even if the Supreme Court rules in McMahon’s favor, its opinion won’t affect previous rulings and other lawsuits in progress against the department.

Here’s where some of those key legal battles stand:

COVID relief funds

McMahon stunned states in late March when she said they would no longer receive more than $2 billion in reimbursements for COVID-related expenses. States would have to make a fresh case for how their costs related to the pandemic, even though the department had already approved extensions for construction projects, summer learning and tutoring. 

On June 3, a federal judge in Maryland from pulling the funds.

Despite the judicial order, not all states have been paid.

The Maryland Department of Education still had more than $400 million to spend. Cherie Duvall-Jones, a spokeswoman, said the agency hasn’t received any reimbursements even though it provided the “necessary documentation and information” federal officials requested. 

The cancellation forced Baltimore City schools to dip into a to avoid disrupting tutoring and summer school programs.

Madison Biedermann, a spokeswoman for the department, declined to comment on why it had yet to pay Maryland or how much the department has distributed to other states since June.

Mass firings

In the administration’s push to wind down the department, McMahon admits she still needs staff to complete what she calls her “final mission.” On May 21, she told a House appropriations subcommittee that she had rehired 74 people. Biedermann wouldn’t say whether that figure has grown, and referred a reporter to the .

“You hope that you’re just cutting fat,” McMahon testified. “Sometimes you cut a little in the muscle.” 

The next day, a federal district court her to also reinstate the more than 1,300 employees she fired in March, about half of the department’s workforce. Updating the court on progress, Chief of Staff Rachel Oglesby said in a that she’s still reviewing survey responses from laid off staffers and figuring out where they would work if they return.

But some call the department’s to bring back employees lackluster, perhaps because it’s pinning its hopes on a victory before the Supreme Court. 

“This is a court that’s been fairly aggressive in overturning lower court decisions,” said Smith, with the National Center for Youth Law. 

His group’s lawsuit is one of two challenging cuts to the Office for Civil Rights, which lost nearly 250 staffers and seven regional offices. They argue the cuts have left the department unable to thoroughly investigate complaints. Of the 5,164 civil rights complaints since March, OCR has dismissed 3,625, Oglesby .

In a case brought by the Victim Rights Law Center, a Massachusetts-based advocacy organization, a federal district court McMahon to reinstate OCR employees. 

Even if the case is not reversed on appeal, there’s another potential problem: Not all former staffers are eager to return.

“I have applied for other jobs, but I’d prefer to have certainty about my employment with OCR before making a transition,” said Andy Artz, who was a supervising attorney in OCR’s New York City office until the layoffs. “I feel committed to the mission of the agency and I’d like to be part of maintaining it if reinstated.”

DEI

An aspect of that mission, nurtured under the Biden administration, was to discourage discipline policies that result in higher suspension and expulsion rates for minority students. A warned that discrimination in discipline could have “devastating long-term consequences on students and their future opportunities.”

But according to the department’s , efforts to reduce those gaps or raise achievement among Black and Hispanic students could fall under its definition of “impermissible” DEI practices. Officials demanded that states sign a form certifying compliance with their interpretation of the law. On April 24, three federal courts ruled that for now, the department can’t pull funding from states that didn’t sign. The department also had to temporarily shut down a website designed to gather public complaints about DEI practices. 

The cases, which McMahon has asked the courts to dismiss, will continue through the summer. In court records, the administration’s lawyers say the groups’ arguments are weak and that districts like Decatur simply overreacted. In an example cited in a complaint brought by the NAACP, the Waterloo Community School District in Iowa responded to the federal guidance by of a statewide “read-In” for Black History Month. About 3,500 first graders were expected to participate in the virtual event featuring Black authors and illustrators. 

The department said the move reflected a misunderstanding of the guidance. “Withdrawing all its students from the read-In event appears to have been a drastic overreaction by the school district and disconnected from a plain reading of the … documents,” the department said.

Desegregation 

The administration’s DEI crackdown has left many schools confused about how to teach seminal issues of American history such as the Civil Rights era.

It was the Civil Rights Act of 1964 that established “desegregation centers” across the country to help districts implement court-ordered integration. 

In 2022, the Biden administration awarded $33 million in grants to what are now called equity assistance centers. But Trump’s department views such work as inseparable from DEI. When it cancelled funding to the centers, it described them as “woke” and “divisive.”

Judge Paul Friedman of the U.S. District Court for the District of Columbia, a Clinton appointee, disagreed. He blocked McMahon from pulling roughly $4 million from the Southern Education Foundation, which houses Equity Assistance Center-South and helped finance Brown v. Board of Education over 70 years ago. His order referenced President Dwight Eisenhower and southern judges who took the ruling seriously.

“They could hardly have imagined that some future presidential administration would hinder efforts by organizations like SEF — based on some misguided understanding of ‘diversity, equity, and inclusion’ — to fulfill Brown’s constitutional promise to students across the country to eradicate the practice of racial segregation.”

He said the center is likely to win its argument that canceling the grant was “arbitrary and capricious.”

Raymond Pierce, Southern Education Foundation president and CEO, said when he applied for the grant to run one of the centers, he emphasized its historical significance.

“My family is from Mississippi, so I remember seeing a ‘colored’ entrance sign on the back of the building as we pulled into my mother’s hometown for the holidays,” Pierce said. 

Trump’s Justice Department many of the remaining 130 desegregation orders across the South. Harmeet Dhillon, assistant attorney general for civil rights, has said the orders force districts to spend money on monitoring and data collection and that it’s time to “let people off the hook” for past discrimination.

But Eshé Collins, director of Equity Assistance Center-South, said the centers are vital because their services are free to districts.

“Some of these cases haven’t had any movement,” she said. “Districts are like ‘Well, we can’t afford to do this work.’ That’s why the equity assistance center is so key.”

Her center, for example, works with the in Tennessee to recruit more Black teachers and ensure minority students get an equal chance to enroll in advanced classes. The system is still under a desegregation order from 1965, but is on track to meet the terms set by the court next year, Collins said. A week after Friedman issued the injunction in the foundation’s case, Ruth Ryder, the department’s deputy assistant secretary for policy and programs, told Collins she could once again access funds and her work resumed.

Research

As they entered the Department of Education in early February, one of the first moves made by staffers of the Department of Government Efficiency was to terminate nearly $900 million in research contracts awarded through the Institute for Education Sciences. Three lawsuits say the cuts seriously hinder efforts to conduct high-quality research on schools and students.

Kevin Gee from the University of California, Davis, was among those hit. He was in the middle of producing a practice guide for the nation on chronic absenteeism, which continues to exceed pre-pandemic levels in all states. In a , the American Enterprise Institute’s Nat Malkus said the pandemic “took this crisis to unprecedented levels” that “warrant urgent and sustained attention.” Last year’s rate stood at nearly 24% nationally — still well above the 15% before the pandemic.

Gee was eager to fully grasp the impact of the pandemic on K-3 students. Even though young children didn’t experience school closures, many missed out on preschool and have in social and academic skills.

Westat, the contractor for the project, employed 350 staffers to collect data from more than 860 schools and conduct interviews with children about their experiences. But DOGE halted the midstream — after the department had already invested about $44 million of a $100 million contract.

“The data would’ve helped us understand, for the first time, the educational well-being of our nation’s earliest learners on a nationwide scale in the aftermath of the pandemic,” he said. 

The department has no plans to resurrect the project, according to a June . But there are other signs it is walking back some of DOGE’s original cuts. For example, it intends to reissue contracts for regional education labs, which work with districts and states on school improvement. 

“It feels like the legal pressure has succeeded, in the sense that the Department of Education is starting up some of this stuff again,” said Cara Jackson, a past president of the Association for Education Finance and Policy, which filed one of the lawsuits. “I think … there’s somebody at the department who is going through the legislation and saying, ‘Oh, we actually do need to do this.’ ”

Mental health grants 

Amid the legal machinations, even some Republicans are losing patience with McMahon’s moves to freeze spending Congress already appropriated.  

In April, she terminated $1 billion in mental health grants approved as part of a 2022 law that followed the mass school shooting in Uvalde, Texas. The department told grantees, without elaboration, that the funding no longer aligns with the administration’s policy of “prioritizing merit, fairness and excellence in education” and undermines “the students these programs are intended to help.”

The secretary told Oregon Democratic Sen. Jeff Merkley in June that she would the grants, but some schools don’t want to wait. Silver Consolidated Schools in New Mexico, which lost $6 million when the grant was discontinued, sued her on June 20th. Sixteen Democrat-led states filed a second later that month.

The funds, according to , allowed it to hire seven mental health professionals and contract with two outside counseling organizations. With the extra resources, the district saw bullying reports decline by 30% and suspensions drop by a third, according to the district’s complaint. Almost 500 students used a mental health app funded by the grant.

A judge has yet to rule in either case, but Republican Rep. Brian Fitzpatrick of Pennsylvania and other members of a bipartisan task force are that she’ll open a new competition for the funds. 

“These funds were never intended to be a theoretical exercise — they were designed to confront an urgent crisis affecting millions of children,” Fitzpatrick said in a statement. “With youth mental health challenges at an all-time high, any disruption or diversion of resources threatens to reverse hard-won progress and leave communities without critical supports.”

When one judge blocks a president’s policies nationwide, alarm bells ring. Should a single judge wield this much power? Can they halt policies across the entire country after just a quick first look at whether they might be illegal? The Supreme Court now .

Time and again, I have scoffed at such accusations, pointing out how public school choice policy is wildly different than private school choice policy. The two policies should never be conflated when discussing the merits of education reform policies with lawmakers, though many lazily place both in the same basket. It was easy for me to end that feckless argument by reminding lawmakers I was there to discuss public education reform policies only, dismissing any melding of public and private school choice policies. 

But with the U.S. Supreme Court taking up a in which the Oklahoma Supreme Court has already invalidated the approval of an application by the Catholic Church to open a religious based virtual charter school, I now find myself concerned we have crossed the Rubicon, forever merging public and private school policy while dismantling the foundational belief in the separation of church and state. A hearing is set for April 30.

The proposed charter school, which would be managed by the Archdiocese of Oklahoma City, proclaims in its application that it would carry out “the evangelizing mission of the [Catholic] Church” by fully embracing its religious teachings and incorporating those teachings “into every aspect of the School.” The school also acknowledged that it would discriminate in admissions, student discipline, and employment, as necessary to satisfy the Catholic Church’s religious doctrine, and that it would not accommodate a student’s disability if doing so would violate the school’s Catholic beliefs.

If one religious organization is allowed to operate a charter school under the umbrella of public funding, other groups will seek similar privileges, creating a patchwork of public schools, each with its own set of religious doctrines, prioritizing their religious mission over the educational needs of all students. 

The profound implications for the separation of church and state, public education, and the future of religious influence in the public sphere is in the balance. If the Court rules in favor of this school, it will not only shift the boundaries of constitutional law but also set a dangerous precedent that undermines the secular nature of our public education system.

Beyond the immediate risks of religious instruction and outright discrimination within a publicly funded space, the ramifications for the separation of church and state could be catastrophic. The Supreme Court has historically been tasked with interpreting the Constitution’s Establishment Clause, which serves as a safeguard against government interference in religious practices and vice versa. By permitting religiously affiliated institutions to receive state funding, this decision could pave the way for religious schools—ranging from the aforementioned Catholic virtual school to the Church of Satan and every religious belief in between. 

This would lead to disastrous consequences where states increasingly entangle themselves with religion, creating a de facto state-sponsored religious system, serving as gatekeepers of what religions are worthy of overseeing public schools and the children who attend them.

Ultimately, the Supreme Court must consider not only the legal questions of the case but also the broader social and political context. Allowing a religiously affiliated charter school to operate within the public education system would set a precedent that we are likely to regret. It is crucial that the Court uphold this principle and prevent the Catholic Virtual Charter School in Oklahoma from becoming the gateway drug I was warned about—before it opens the door to a much more divided and religiously entrenched education system.

This is not a matter of denying the right to religious expression; it’s about ensuring that the public education system remains a neutral space for all students, regardless of their faith or belief. Let’s not forget: The preservation of the separation between church and state is vital to the integrity of our democracy.

Maryland will consider joining a number of states that guarantee admission to certain first-year students at one of the state’s four-year public colleges and universities.

Proposed legislation – , sponsored by Senate President Pro Tem Malcolm Augustine (D-Prince George’s) — would require institutions to adopt an admission policy and accept Maryland high school students, from a public or private school, who are in the top 10% of their class.

The 10 “constituent” higher education institutions that would be required to accept those students are those in the University System of Maryland: University of Maryland, Baltimore; University of Maryland, College Park; University of Maryland, Baltimore County; University of Maryland Eastern Shore; University of Maryland Global Campus; Bowie State University; Coppin State University; Frostburg State University; Salisbury University; Towson University; University of Baltimore. Two public schools not in the system would also be required to admit those sudents: Morgan State University and St. Mary’s College of Maryland.

The bill comes after the that affirmative action in college admission processes at Harvard University and the University of North Carolina at Chapel Hill violated the equal protection clause of the 14th Amendment. The court’s decision effectively ended consideration of race as a part of the higher education selection process.

“That made me concerned because other states that have gone to a race-neutral policy for selective schools immediately saw a drop in diversity of their student body…” Augustine said in an interview Thursday. “I want to make sure that our higher education schools are filled with the talented students from across the state that look like our state.”

There’s no current state law specifically focused on admission standards for institutions, according to the bill’s , which analyzes the legislation. However, schools aren’t permitted to discriminate against a prospective student’s race, sexual orientation, religion and other characteristics to admit that person.

The bill mirrors a law in Texas, which went into effect more than 20 years ago.

Recently, schools in other states, including , began the guaranteed admission program, not only to diversify its student body, but to keep afloat enrollment, which shrunk during the COVID-19 pandemic.

The State Council of Higher Education for Virginia (SCHEV), a coordinating body, noted that 409,075 students were enrolled in the state’s colleges and universities in 2012. That figure decreased to nearly 369,200 in the fall of 2021.

Bob Spieldenner, a spokesman for SCHEV, said in an interview Thursday that the organization doesn’t track the number of schools that offer guaranteed enrollment. He said schools are permitted to choose whether or not to use such a  program.

In Maryland, Augustine had one major supporter speak on the legislation during a Wednesday before the Senate Education, Energy and Environment Committee: state Board of Education President Clarence Crawford.

Crawford acknowledged that not every high school reports class rank, but he said the legislation still would help increase student diversity in higher education.

“The board is encouraged by the steps taken in SB 5 because it emphasizes and signals the importance of GPA [grade point average], grades and student performance throughout high school,” he said. “We like the focus on academics. We like the focus on giving parents, students clear indicators early on that student performance is important and there are positive outcomes for achieving the best possible grades.”

Although two officials with the University of Maryland College Park support a diverse student population, they still don’t agree with the bill.

James B. Massey Jr. — director of undergraduate admissions at University of Maryland, College Park — said the legislation would eliminate the school’s admission philosophy and additional criteria in accepting prospective students.

According to Massey’s written testimony, the school uses about two dozen factors to assess an applicant, including grades in academic subjects, geographic origin, community service and recognition of special achievements.

“We employ a wholistic approach in our evaluation of applications for admission,” he said before the Senate committee Wednesday. “We admit students that have not only excelled in the classroom, but students that have gone far beyond that. We believe that merit is not a singularly defined measure to merit our students.”

Andy Clark, assistant vice chancellor for government relations with the University System of Maryland, wrote a letter of “information” to the committee. One detail in the letter highlights that the non-partisan Education Commission of the States has noted that 12 states have guaranteed admission for eligible students, but that results vary in terms of enrollment impact and demographic composition.

Clark wrote that the system respects the “ambitious” bill, but is concerned that, if the bill gets approved, it would go into effect July 1.

“Admission materials are prepared and distributed over a year in advance of when students enter, and the outreach and communication associated with changes in processes need more lead time,” Clark wrote. “We believe that a bill with so much potential impact on our state and its public institutions requires more time to understand the divergent impacts it could have.”

This was originally published in .

As a teenager in the 1950s he followed and documented the South Carolina case that challenged segregation in public education. Briggs was eventually appealed to the U.S. Supreme Court where it became one of five cases consolidated into what is now known as Brown v. Board of Education. 

Williams, now 86, still reflects on the injustices he witnessed in South Carolina in the wake of the case: most petitioners lost their jobs and some were driven out of town. The consequences have reverberated for generations.

“They were ostracized in their own community,” he told ����Ӱ��. 

Since the 1960s, Williams has asserted that the 20 parents of Briggs v. Elliott faced a second injustice: They were forgotten. Despite being the first of the five cases to make it to the Supreme Court, Briggs was not chosen as the lead case and was therefore relegated to the position of “et al.” in the seminal Brown v. Board’s name. This naming meant that despite the families’ sacrifices, their stories were removed from the foreground, according to Williams. For decades, he has been advocating for a correction, asking over 100 attorneys to take on a case that would challenge the ordering — and the naming — of Brown. 

In some ways, Williams is a hidden figure among hidden figures, who took up the cause of renaming Brown even before Nathaniel Briggs, the 76-year-old son of the lead plaintiff in Briggs v. Elliott, Harry Briggs, came on board and before South Carolina attorney and civil rights organizer Tom Mullikin agreed to argue it pro bono. 

Mullikin would spend years interviewing the families from the original Briggs case before filing before the U.S. Supreme Court in November 2023. Earlier this month, the justices denied the petition without comment.

“I would do it again,” Mullikin told ����Ӱ��. “I would spend another four years doing it. And I’ll spend the rest of my life talking about it because it’s an injustice. Sometimes, there’s a price to being first. And in this case, there’s no denying that people lost their lives, their economic fortunes, and their livelihoods because of their courage and stepping out.”

While on its face a legal battle, the quest to rename the landmark Brown case lays bare how steep that price was and how lasting its painful legacy. For Nathaniel Briggs, it was the dissolution of his family. His father was fired from his job as a gas station attendant; his mother from hers as a motel maid. 

His father began working at a family member’s farm but when he took his cotton to market, Briggs said, people refused to buy it because of the association with his last name. In 1957, out of options, his father moved to Miami. At the time, Briggs was 9 years old. He was devastated when his father was forced to leave the family behind.

“Once a month he would call. I’d hear my dad’s voice for a couple of minutes … I’d put those coins in the old, black dial-up telephone thing, and I’d hear my dad’s voice.”

South Carolina — and the stories of the Briggses and the other families in Clarendon County — have remained largely invisible, despite the notoriety of the titular Brown case, according to Nathaniel Briggs.

“The original signees of this petition, the seniors, they’re all dead,” he said. “So I’m saying, who can speak for dry bones? Me. I’ll speak for those dry bones that cannot speak for themselves … Don’t let this nation, a historian, or a writer write you out of the picture.”

A clerical error or a strategic move? 

The Supreme Court brief that Mullikin filed on behalf of Nathaniel Briggs, as well as Beatrice Brown Rivers and Ethel Brown Marshall, two of the signatories of the original South Carolina petition, asserted that Brown had been incorrectly named due to a clerical error.

Thurgood Marshall, the civil rights attorney and first Black Supreme Court justice, filed in the fall of 1950. Initially, Black parents in Clarendon County were just requesting school buses for their children. But by the time the case was ultimately filed against R.W. Elliott, the school board president, the parents were challenging segregation in its entirety. 

Eventually, Briggs was appealed through the court system and was the first of the five consolidated cases to reach the Supreme Court. It was returned back to the lower district court in 1952. According to Mullikin’s brief, when the case again made its way to the Supreme Court for the second time “the Clerk inadvertently docketed the Briggs case after Brown instead of placing it back as the first case filed. This inadvertent clerical misstep deprived the petitioners their rightful place in history in spite of the great physical, emotional, and financial risks taken by each petitioner. The petitioners request that their place in history be restored by the simple act of reordering the petitioners to the just and accurate place.” 

Mullikin noted that there may be people who view this case as an attempt to pit the involved families against each other, but that to his knowledge “there’s none of that happening.”

“This is in no way to marginalize what [the Brown family] went through or the importance of their case. It’s simply a matter of factual accounting of which case is first. In no way was our collective efforts meant to marginalize or minimize the sacrifice that those families made.”

“We’re not in any conflict with what the Brown case stands for, but we are in conflict with the naming of it,” Williams, the civil rights photographer, said. 

Cheryl Brown Henderson, the daughter of the lead plaintiff in the Brown lawsuit, declined to comment on the record. In an interview with she said that while she did not oppose the South Carolina effort, she had expressed her misgivings to the South Carolina descendants. She told the outlet that the Brown Foundation for Educational Equity, Excellence and Research had worked to promote the history and legacies of all five cases that made up the Brown and Bolling decisions.

Some historians believe that Brown was given preference for strategic reasons: that the lead case would have an easier path coming out of a “border state” like Kansas vs. a Deep South state like South Carolina and in Brown, the court potentially saw a chance to push the school segregation issue out of the Jim Crow South and onto a national platform.

Going home to Clarendon County

After the original court filing, the Briggs family splintered; with Nathaniel, his mother, sister and brother attempting to reunite with his father in Florida, leaving their grandmother behind, and other brothers moving north to New York City. 

A year later, the Florida family members returned to South Carolina. Briggs enrolled in Scott’s Branch High School, the subject of Briggs v. Elliot and which remained segregated despite the high court’s ruling almost a decade before. Even at the all-Black high school, Briggs said he faced discrimination because of his last name. “Not all of the teachers liked the Briggs children because you’re upsetting a system,” he said.

Those hardships prompted another move by the rest of the family to New York City in the early 1960s. Today, Briggs lives in New Jersey but has returned to South Carolina every year for the past six decades.

“I love my community,” he said. 

In 2014, almost 100% of the schools in Clarendon County were de facto segregated. 

“Most of the white students attend private schools while black students attend public schools, which are still notoriously underfunded,” Mullikin wrote in his brief. Scott’s Branch Middle/High School has a 95.7% minority enrollment and 100% of the students are economically disadvantaged, according to the brief, despite the county of 31,000 being almost evenly split demographically.

In some ways, these numbers are unsurprising since school segregation is still a core feature of American public education, said Ansley Erickson, associate professor of history and education policy and co-director of the Center on History and Education at Columbia University’s Teachers College. In 2021, approximately 60% of Black and Hispanic public school students attended schools where 75% or more of students were students of color.

It is important to recognize the burden desegregation efforts put on Black families, she added.

“The key thing that [the Briggs] case can bring to our attention is how much work desegregation required of Black students and families,” she said. “The Supreme Court decision in Brown was not self-executing, meaning that it didn’t automatically tell districts what to do. It established the legal standard, and then made it possible for districts to be sued by local families and attorneys. And that means that it shifted the labor onto families like the Briggses, families like the Browns, families like hundreds that we could name if we look at every local school district that was segregated, and where someone brought the case to court. And that labor is tremendous.”

“Every one of these local districts should recognize the people who did this labor on behalf of justice.”

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 will hear two cases that say the administration exceeded its authority when it offered borrowers up to $20,000 in debt relief last August. One is from six GOP-led states; the second is from a conservative organization that sued on behalf of two borrowers who argue the administration’s plan leaves them out. 

Given the 6-3 conservative majority on the court, experts say it will be tough for Biden to win. Just last year, that the administration’s plan to set limits on carbon emissions crossed “constitutional lines” and exemplified government overreach.

The states — Nebraska, Arkansas, Iowa, Kansas, Missouri and South Carolina — and the plaintiffs who filed the second lawsuit will first have to convince the court that Biden’s plan would cause them financial harm and that they had legal “standing” to sue in the first place. 

“It seems likely that if there is standing, that the loan forgiveness will be overturned,” said Michelle Dimino, deputy director of education at Third Way, a center-left think tank. “Can the department do something with that level of political and economic significance without an act of Congress?”

After the administration paused repayment multiple times, Biden’s decision to go forward with the loan forgiveness plan was viewed as a politically popular move ahead of the recent midterm elections. Supporters hailed it as compassionate toward borrowers, including the who took out loans to afford college. American Federation of Teachers President said many were “eagerly awaiting the breathing room … student debt relief would bring.” But Republicans argue it’s not only illegal, but favors one group of borrowers at the expense of others. 

“Where is the forgiveness for the guy who didn’t go to college but is working to pay off the loan on his work truck?” Louisiana Sen. Bill Cassidy, ranking member of the education committee, asked earlier this month during the first meeting of the new Congress.

Others say the plan increases inflation and could leave today’s K-12 students with the impression their college debt might be slashed as well. 

“If [politicians] have the authority to give away money if they declare an emergency, there’s a lot of incentive to declare emergencies — or give it away after they’ve declared one,” said Rick Hess, a senior fellow and the director of education policy studies at the conservative American Enterprise Institute.

But Kim Cook, CEO of the National College Attainment Network, said Biden presented the plan as “one-time debt relief” and that “future students shouldn’t depend on it.” Her organization, and many others, advocate for to $13,000 so low-income students won’t have to borrow so much to go to college.

‘Continued recovery’

During this month’s State of the Union address, Biden efforts to reduce student debt, but didn’t directly reference the cases before the court. 

The administration’s argument rests on a 2003 law called — for Higher Education Relief Opportunities for Students. The law gives the education secretary the flexibility to make temporary changes to the federal student loan system in the case of a national emergency, including war.

“Student loan borrowers from all walks of life suffered profound financial harms during the pandemic,” U.S. Secretary of Education Miguel Cardona said last month when filed briefs in support of the plan. “Their continued recovery and successful repayment hinges on the Biden administration’s student debt relief plan.”

One “wild card issue,” Dimino added, is that Biden plans to end the on May 11, which could make it harder for the administration to prove its case before the court.

In addition, former Republican education secretaries wrote in that the link between HEROES and Biden’s plan is weak.

“Such a pause only ensured that affected individuals were not placed in a worse position financially,” they wrote. “It did not authorize the executive branch to cancel $400 billion in student debt and leave borrowers in a better position than they would have been in if the COVID-19 pandemic had never occurred.”

In Biden v. Nebraska, the states argue that their tax revenues would drop if students don’t pay back their loans. The Missouri Higher Education Loan Authority, for example, is a nonprofit that services student loans and contributes to the state’s higher education system. Biden’s plan, the states say, could cost the Missouri organization nearly $44 million a year and reduce what it pays the state.

Job Creators Network Foundation, an advocacy group, filed the second case, U.S. Department of Education v. Brown, on behalf of of Texas. Brown, a business owner from the Dallas-Fort Worth area, received loans from commercial lenders, making her ineligible for the Biden program. 

Taylor, a graduate of the University of Dallas, argues that limiting the maximum amount of relief — $20,000 — to Pell Grant recipients is unfair because borrowers earning far more than him will have more debt erased. He earns less than $25,000 a year, but qualified for $10,000 in loan forgiveness because he was not a Pell Grant recipient. Brown and Taylor argue that the administration didn’t give the public a chance to comment on the plan.

In the meantime, borrowers who took advantage of the Biden plan remain in limbo. 

In October, people were automatically eligible or applied for the relief. The department approved over applications before the U.S. Court of Appeals for the 8th Circuit blocked the plan.

If the program is overruled, it’s unclear how soon borrowers would have to begin repayment, Dimino said.

“Borrowers are still totally in the dark,” she said. “These are really difficult circumstances for those making immediate financial decisions.”

The Catholic Archdiocese of Oklahoma City plans to apply this month to operate a virtual charter, acting on a recent state that says religious organizations shouldn’t be prohibited from doing so. The state’s Virtual Charter School Board could make a decision as soon as mid-February.

Advocates for religious charters said they began planning their strategy over a year ago as the conservative supermajority on the U.S. Supreme Court began to flex its judicial muscle. For the second time in two years, the court agreed to hear a school choice case and later sided with Maine families seeking to use tuition vouchers to attend religious schools.

“We’re not idiots. We know how things are going to play out,” said Brett Farley, executive director of the Catholic Conference of Oklahoma, which focuses on how public policy impacts the church. “We’ve looked at all the [school choice] options out there. Expanding charter options has always been on the short list.”

Even though it’s non-binding, the opinion from now-former state Attorney General John O’Connor and Solicitor General Zach West moves the discussion over religious school choice into a new arena. Recent Supreme Court rulings prohibit states from excluding religious groups from school choice programs. But allowing sectarian instruction in a public school, some legal experts say, goes too far. “Catastrophic” is how Derek Black, a University of South Carolina law professor, described it in .

With charter leaders expecting similar moves in other states, some advocates worry the new direction could splinter a movement that has already drawn frequent criticism

“Public schools have never been able to, and cannot now, teach religion, require attendance to religious services or condition enrollment or hiring on religious beliefs,” said Nina Rees, president and CEO of the National Alliance for Public Charter Schools. Supreme Court precedent regarding public funding for private schools, she added, “simply does not apply to public charter schools.”

Farley said he expected that kind of opposition, but also sees “green lights all around for the movement to press ahead.” 

In Louisiana, for example, charter leaders are watching to see what unfolds in Oklahoma.

“We’ve got large Catholic schools. We’ve got Pentecostals. We’ve got Baptists. We’ve got it all going on,” said Caroline Roemer, executive director of the Louisiana Association of Public Charter Schools. “Absolutely, we’ll see some applicants that lean in on that opportunity.” 

In Oklahoma, Farley said the archdiocese was further encouraged last year when it looked like voters would re-elect Republican Gov. Kevin Stitt, a fervent proponent of school choice. Farley consulted Nicole Stelle Garnett, a University of Notre Dame law professor and leading voice for religious charter schools. She is also a colleague of Supreme Court Justice Amy Coney Barrett, who taught at the law school.

That sparked the Oklahoma City archbishop’s November 2021 letter to the Statewide Virtual Charter School Board, asking if it would consider an application from the archdiocese. The board then sought the attorney general’s opinion.

While some Catholic schools around the country previously converted to charters, they only provide a secular education. For example, Barrett, a conservative Catholic, is affiliated with a church group that has helped . And some Hebrew language charter schools in their afterschool programs. But Black said there’s a big difference between a faith-based organization running a secular charter — likely allowed under the Supreme Court’s rulings in and — and one that would, as Farley said, weave Catholicism into its entire curriculum.

What Farley describes, Black said, “does not involve discrimination based on religious status. Rather, it involves someone who wants to change public education into religious education.”

The U.S. Department of Education did not comment on the potential application.

says a charter school must be “nonsectarian in its programs, admissions policies, employment practices, and all other operations” and “not affiliated with a sectarian school or religious institution.” 

Black said that, if approved, the archdiocese’s school would violate the Constitution’s ban on government support of religion. 

“I don’t believe even this [Supreme Court] would say that is OK,” he said.

Farley countered there’s no such thing as a “values-free” education and that parents should be able to choose a religious or secular education for their child. A virtual charter, he said, would satisfy a growing demand for Catholic education, particularly in rural areas where parishes lack sufficient students to open brick-and-mortar schools.

‘In the name of the state’

The debate elevates the importance of a recent 4th Circuit Court of Appeals case that focuses on whether charter schools are public or private.

The that charter schools — even those run by nonprofits — act on behalf of the state, just like traditional schools. But Charter Day School in Leland, North Carolina, unsuccessfully argued that it had the flexibility to adopt its own dress code requiring girls to wear skirts. Families sued, saying the rule violated girls’ civil rights.

The school has appealed the decision to the Supreme Court, and on Monday, the for an opinion from the U.S. solicitor general, who would argue the case for the Biden administration if the court accepts it.

Regardless of whether charter managers and employees work for nonprofit or religious organizations, the organization authorizing the charter is still “acting in the name of the state,” said Black, who sees the potential for “massive constitutional violations” if states allow charters that explicitly endorse religious instruction.

Oklahoma’s charter association said it is still reviewing the state’s opinion to determine its impact. The national Alliance, meanwhile, has a “legitimate concern” about backlash from blue states, where support for charters is already tenuous, Farley acknowledged. In fact, Black said if courts allow religious charters, states that don’t want them would have no recourse but to eliminate their charter laws.

“You could see states like Massachusetts, California or New York saying, ‘If courts are going to force religious charters on us, we will get rid of them,’ ” he said.

While it is focused on higher education, the court’s ruling in those cases is bound to filter down to K-12 schools.

“Despite the best efforts of school districts … to create more diverse schools, racial segregation has increased over the last two decades. As a result, educational inequities persist,” according to filed by the Council of the Great City Schools in defense of admissions policies at Harvard University and the University North Carolina.

At least 18 million students attend K-12 schools where more than three-quarters of the enrollment is of a single race, a recent report showed, and 14% of students attend schools where at least 9 out 10 of students are of the same race.

Students for Fair Admissions, the plaintiffs in the case, are challenging admissions criteria at those universities they claim discriminate against Asian students. Admissions, they say, should be based on merit.

They want the court to overturn a in Grutter v. Bollinger that upheld race-based admissions at the University of MIchigan Law School. In that ruling, former Justice Sandra Day O’Connor foresaw a nation in which “the use of racial preferences will no longer be necessary.” The Biden administration, , and advocates for Black and Hispanic students argue that affirmative action is even more essential today because schools are still segregated and the promise of integration under Brown v. Board of Education “remains unfulfilled.”

Supporters of affirmative action expect the court’s six conservative justices to side with the plaintiffs. While this will be the first time Justice Ketanji Brown Jackson hears an education case, she’s one of just three liberal justices. And she’ll only sit on the bench for the UNC arguments, having recused herself from the Harvard case because she served on the school’s Board of Overseers until this past June. 

“I think it is highly likely that the court takes a position that disallows the use of race whatsoever in higher education admissions,” said Stefan Lallinger, a senior fellow at The Century Foundation, a progressive think tank. Such a ruling, he said, could put “a final nail in the coffin of efforts by colleges and universities around the country to directly ensure that all of their students benefit from a racially diverse student body.”

Most experts see two routes for the court to take in this case. First, it could follow the precedent set for K-12 schools in a 2007 case against Seattle Public Schools and the Jefferson County Public Schools in Kentucky. 

In , the court ruled that school districts couldn’t explicitly use race in their efforts to create more diverse schools. But separately, former Justice Anthony Kennedy wrote that districts still had a “compelling interest” to pursue racial integration. Since then, districts have moved toward based on family income. 

Noting the court’s recent decision to overturn the constitutional right to abortion, many predict that the six conservative justices won’t be bound by precedent. 

“It should be noted that the only reason the court salvaged any use of race in the [Parents Involved] case was the moderation of Justice Anthony Kennedy,” Lallinger said. 

That’s why he thinks it’s possible the court could take a second approach and rule as unconstitutional all race-conscious efforts to achieve diversity.

“The current court does not have an Anthony Kennedy,” Lallinger said. 

‘Pressure to discriminate’

In the wake of the Parents United opinion, many conservatives continue to hold that some of the admissions policies K-12 schools use for competitive schools are discriminatory.

In the Fairfax County, Virginia, schools, for example, the libertarian Pacific Legal Foundation is representing plaintiffs who sued the district over changes to acceptance criteria at the Thomas Jefferson High School for Science and Technology. The district dropped a rigorous admissions test and a $100 application fee, and reserved seats for the top 1.5% of 8th graders in each middle school. Board members expressed hope that the changes would increase representation of Black and Hispanic students at the school, which the plaintiffs argued was illegal “racial balancing.”

“We’re all entitled to each be judged on our own individual characteristics, not on the basis of our membership in a group,” said Wen Fa, a senior attorney at the law firm, which is also challenging similar admission policies in New York City, Boston and Montgomery County, Maryland.

In supporting Students for Fair Admissions, the nonprofit Parents Defending Education wrote that the 2003 decision in Grutter v Bollinger has “spawned increasing racial discrimination” that has spread to the K-12 system.

“As long as Grutter remains the law, K-12 schools will face an inexorable pressure to discriminate based on skin color,” the brief said.

But even those challenging the university policies point to integration efforts based on family income as the direction for higher education, said Richard Kahlenberg, a researcher who wrote on the issue. He served as an for the plaintiffs when the case was in a lower court, and he doesn’t think the justices have hinted that they would rule out all efforts to achieve diversity.

“Not a single Supreme Court justice has indicated that they entertain that extreme position,” he said. 

He pointed to Clarence Thomas’s in 1991, in which the justice defended programs that give preference to students who overcome obstacles. 

“The kids could come from any background of disadvantage,” Thomas said. “The kid could be a white kid from Appalachia, could be a Cajun from Louisiana, or could be a Black kid or Hispanic kid from the inner cities or from the barrios, but I defended that sort of a program then and I would defend it today.”

But the court has grown far more conservative since Thomas joined. Most experts don’t expect different outcomes from the two cases, but note that Jackson is likely to raise questions in the UNC case that might not surface in the Harvard hearing.

There’s one clear difference between the two. Harvard is a private university and therefore subject to Title VI of the Civil Rights Act, which applies to any institution receiving federal funds. But UNC is a public university and is guided by the Constitution, specifically the 14th Amendment’s guarantee of equal protection.

Kahlenberg said that by taking both cases, the court can issue rulings based on both laws. 

Impact on recruiting

Education advocates in North Carolina are already assessing the possible impact if the court ends affirmative action. Black and Hispanic students in the state may have fewer opportunities to attend the flagship university, according to researchers at the Hunt Institute, an education think tank.   

Just look at California, where voters banned affirmative action in 1996, wrote Madeline Smith and Erica Vevurka, directors of higher education and K-12, respectively, at the institute.

“The ban [on] affirmative action made it more difficult for the state’s public institutions of higher education to explicitly recruit students of color,” they wrote. “It also restricted the access that students of color had to information around financial aid options.”

After 1996, the enrollment of freshman from underrepresented minority groups dropped by at least 50%, according to that the University of California submitted to the Supreme Court in support of Harvard and UNC. 

Even though the state has implemented diversity efforts targeting low-income families and first-generation college students, the university system “struggles to enroll a student body that is sufficiently racially diverse to attain the educational benefits of diversity,” the brief says. 

Beyond college admissions, some experts say the case has implications for efforts to create a more diverse teacher workforce, especially in the wake of the pandemic.

A ruling for the plaintiffs could “derail the progress” made in grow-your-own programs and teacher residencies that target Black and Hispanic college students, said Jerell Hill, dean of the School of Human Development and Education at Pacific Oaks College in Pasadena. 

The college participates in an that targets universities serving large numbers of minority students. “It is difficult to measure a court decision that could delay social, economic and educational opportunities for decades,” he said.

Christopher Nellum, executive director of The Education Trust-West said if the court rules for the plaintiffs, there are still strategies to increase diversity in teaching. They include building strong teacher education programs at historically Black colleges and universities and expanding affordable housing for teachers.

“To have diverse professions like teaching, you’ve got to have a pipeline of folks who are coming out of undergrad who are also diverse,” he said. “We know diverse teachers are good for all students.”

The conservative majority on the U.S. Supreme Court on Monday appeared to be leaning in favor of a Bremerton, Washington, football coach who prayed on the field after games, despite his school district’s instructions to stop. 

The case, , centers on whether the coach’s prayer amounted to government speech and, therefore, whether it violated the Constitution’s separation of church and state. Joseph Kennedy, the coach, argues he was unfairly put on leave for his actions.

In arguments Monday, Justice Brett Kavanaugh noted that the coach’s prayer was “not audible to all players.”

“They’re not all there,” he said. “They don’t have to be there. It’s not a team event.”

The case is the second focusing on schools and religion the court has heard this term, with a conservative supermajority on the bench leaning toward fewer restrictions on religious liberty. In December, the justices heard oral arguments in a over public funding for private religious schools.

Joshua Dunn, a political science professor at the University of Colorado, Colorado Springs,  said that he doesn’t expect five justices to lean the district’s way, especially since this was a case that four of the conservative justices signaled they wanted to hear when Kennedy first petitioned the court in 2019.

John Taylor, a law professor at West Virginia University, added that it’s not just the most conservative justices on the court — Samuel Alito, Clarence Thomas and Neil Gorsuch — who see their role as “protecting conservative Christians from what they regard as oppression by the liberal, secular order.” But Brett Kavanaugh and Amy Coney Barrett “also sound the same themes on occasion.”

In Monday’s hearing, the justices posed a variety of hypothetical scenarios to both attorneys to get at the extent of a school employee’s religious freedoms under the First Amendment and what to do when exercising those rights infringe on student freedoms. Justice Brett Kavanaugh asked if an employee could make the sign of the cross, for example, and Justice Sonia Sotomayor asked if the district could fire someone who wore a Nazi swastika on their arm if they said it was part of their religion. 

Richard Katskee of Americans United for Separation of Church and State, representing the district, called Kennedy’s prayers a form of coercion, adding that students worried they would lose playing time if they didn’t participate and that the coach even “announced in the press that those prayers are how he helps these kids be better people.”

Justice Elena Kagan, one of the three liberals on the court, said the district had a right to discipline the coach because even if he didn’t directly threaten to sideline players who didn’t participate, the activity puts “undue pressure” on students who have different beliefs or have no religion. 

“We’re worried that the students will feel, ‘He gets to put me into a football game or not. He gets to …give me an A in math class or not,’ ” Kagan said. “This is a kind of coercion that’s improper for 16-year-olds.”

The main question in this case, Taylor said, is whether the court will try to characterize the coach’s actions as completely private or “take a broader swing at Supreme Court precedents.”

Paul Clement, attorney for First Liberty Institute, a nonprofit law firm representing Kennedy, argued before the court that the district would have a hard time making a case for coercion because it disciplined him for two games in which students didn’t participate in prayers. 

He added that the district’s argument focused on whether officials might appear to be endorsing the prayers because they occurred at a school football game. But he likened the coach’s prayers to those of soccer player Mohamed Salah and football player Tim Tebow.

“Right after Tim Tebow scores the touchdown, he’s absolutely the center of attention, yet he engages in a religious exercise,” Clement said. “It’s private, it’s permissible and the government can’t stop it.” 

The justices made several references to the so-called Lemon test, which stems from Lemon v. Kurtzman, a 1971 case on church-state separation. The court in that case held that allowing religious expression is a form of endorsement, or establishment. But some of the justices noted that the standard is no longer relevant. 

“I don’t think that is a test anymore,” Justice Alito said. “We haven’t applied that in two decades, and so I don’t think that helps … on the school cases.”

Note: An earlier version of this story, including the headline, incorrectly stated that Joseph Kennedy was fired by his school district for praying after football games.

The Senate on Wednesday confirmed Judge Ketanji Brown Jackson to replace retiring Justice Stephen Breyer on the U.S. Supreme Court. With a vote of 53 to 47, Jackson picked up support from three Republicans — Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah.

According to the White House, Jackson, who will be the first Black woman on the court, watched the vote with President Joe Biden. 

President Joe Biden made history Friday when he nominated federal appeals court Judge Ketanji Brown Jackson to be the first Black woman on the U.S. Supreme Court. If confirmed, however, she’ll likely face pressure to sit out one of the most important cases involving race and education in recent years. 

In 2016, she recused herself from a against the U.S. Department of Education because she has served on the Board of Overseers of Harvard University, where she previously graduated magna cum laude and served as editor of the Harvard Law Review. Prior to her confirmation hearings for a federal judgeship, she explained in a that she “was serving on the board of a university that was evaluating its own potential response” to sexual assault guidelines.

That rationale is likely to be revisited if she sits on the court next term when it hears an upcoming case in which the university is a defendant, one of two challenging race-based admissions policies. Plaintiffs argue that affirmative action policies at both Harvard and the University of North Carolina discriminate against Asian Americans by giving preference to Black and Hispanic students. 

Charles Geyh, an expert in judicial conduct at Indiana University, said Jackson’s first responsibility would be to ask herself whether she can be impartial. But the degree of the board’s involvement in creating and implementing the policy also factors into the decision.

“The more involved she was, the more a reasonable person would look at this and say, ‘I don’t know if she can weigh this thing in an even-handed way,’” he said. “It wouldn’t shock me to find that some senators will try to leverage that.”

Students for Fair Admissions v. Harvard is one of several high-profile education cases the court will hear in coming years. Other potential issues expected to work their way up from the lower federal courts involve religious school choice, the rights of transgender students and the public status of charter schools.

Jackson, who attended a Miami-Dade high school, is the daughter of public school educators, whom she thanked Friday during remarks at the White House. 

“My father made the fateful decision to transition from his job as a public high school history teacher and go to law school,” she said. “Some of my earliest memories are of him sitting at the kitchen table reading his law books. I watched him study. He became my first professional role model.” Her father served as a school board attorney for the Miami-Dade County Public Schools and her mother was a principal at one of the district’s magnet schools for 14 years.

Despite her strong public school connections, Jackson has served on boards of private schools in the D.C. area — Georgetown Day School and a Christian school in Maryland that has since closed.

The Montrose Christian School opposed abortion, another issue Jackson could face on the court. The school’s mission statement also said marriage should be limited to those between a man and a woman. Questioned by Sen. Josh Hawley, a conservative Republican from Missouri during hearings last year on her nomination to the appellate court, she responded that she did not “necessarily agree with all of the statements … that those boards might have in their materials.” 

None of those potential conflicts came up Friday, however, when Biden formally announced her nomination.

“Her opinions are always carefully reasoned, tethered to precedent and demonstrate respect for how law impacts everyday people,” he said. “It doesn’t mean she puts her thumb on the scale of justice one way or the other, but she understands the broader impact of the decisions.” 

If confirmed, Jackson won’t change the ideological make-up of the court, where conservatives have enjoyed a supermajority since 2020. That means on a major educational issue like school choice — where liberals typically oppose public funds for religious schools — the addition of Jackson would be unlikely to affect the outcome.

But as the first Black woman on the court, Jackson would likely be more attuned to issues of race and gender as reflected in school dress codes or , and she might see “discrimination that maybe another justice might not,” said Preston Green, an education professor at the University of Connecticut. 

Jackson would join the court at a time when conservative justices have signaled they’re open to rolling back abortion rights and have already moved in the direction of more religious freedom. 

“This court is really undoing a lot of decisions that people have thought were off the table,” Green said.

‘So long overdue’

Prior to her service on the D.C. Court of Appeals, Jackson served as a trial judge on the Federal Court in Washington for 8 years. Biden called Jackson’s experience as a trial judge a “critical qualification,” and civil rights organizations celebrated the nomination.

In 2020, she blocked the from allowing child welfare agencies receiving federal grants to turn away LGBTQ youth and families. And in 2018, Jackson ruled that the Trump administration failed to follow proper procedure when it sought to end funding for teen pregnancy prevention.

“I’m elated. It’s groundbreaking, and so long overdue to have a Black woman on the Supreme court,” said Sasha Buchert, senior attorney at Lambda Legal, which focuses on the rights of LGBTQ students and adults. “She has a stellar civil rights record.”

Buchert is among the legal experts who expect a case involving the rights of transgender students to reach the court at some point. The 11th Circuit Court of Appeals, which heard oral arguments in last week, could clash with the 4th Circuit,which ruled in that a transgender boy could use the bathroom that matched his gender identity. The Supreme Court turned down an appeal of that case, but conservative Justices Clarence Thomas and Samuel Alito said they would have heard it. 

Joshua Dunn, a political science professor at the University of Colorado, Colorado Springs, said the court also could ultimately confront the issue of whether transgender girls should be able to play women’s sports.

“I don’t see any way that they can dodge that one,” Dunn said. “There will be some split circuit decisions sooner rather than later.”

— a challenge to Idaho’s ban on transgender girls in women’s sports — is currently moving through the 9th Circuit. Long considered one of the most liberal appellate courts, the circuit court recently because of appointments by former President Donald Trump. The Alliance Defending Freedom, a conservative Arizona-based law firm, is also expected to appeal challenging a Connecticut policy that allows transgender girls to play in girls high school sports.

Dunn said it’s hard to predict how justices would rule in such a case, adding that if Jackson is confirmed, all three liberal members of the court would be women. 

The conservative members, he said, could be “suspicious” of ruling that bans like Idaho’s should stand, but added he could see “some of the liberal wing of the court having concerns” about transgender girls in sports.

The fact that Justice Neil Gorsuch, a conservative, wrote the 2020 opinion in could be a factor in any future cases involving LGBTQ rights. In that case, the court decided that federal law prohibits employment discrimination against LGBTQ workers. But Buchert said the ruling also left open the door for restrictions outside the workplace.

A ‘minimalist course’ 

Before the end of the current term, the court will issue an opinion in , which challenges a Maine law banning some religious schools from receiving public funds for tuition assistance. How the court rules in that case could determine whether Jackson might face a similar school choice issue if she’s confirmed.

Experts expect the court to rule in favor of the plaintiffs, who say the state is discriminating against religious families. “My sense is that [Chief Justice John] Roberts’s ability to keep the conservatives on the minimalist course that he established is over,” Dunn said, but added that the court could also leave open the possibility for similar cases in the future.

A decision in a , which focuses on whether a student can sue a charter school under the federal equal protection clause, is expected this spring. 

Jackson won’t be on the court to hear a church-state separation case this term in which a football coach argues he should be allowed to pray publicly after games. But when she clerked for Justice Stephen Breyer, the Supreme Court justice she’s in line to replace, the court ruled that student-led prayer at football .

In choosing Jackson, Biden passed on California Supreme Court Justice Leondra Kruger, and J. Michelle Childs, a federal district court judge in South Carolina, who not only went to public K-12 schools like Jackson, but also earned a law degree from the University of South Carolina.

The district said students felt pressured to join Kennedy’s moments of prayer. They argued that because the coach was on the job, officials would have appeared to be endorsing the activity, putting them at risk of violating the First Amendment’s separation between church and state.

The decision to hear puts yet another case on schools and religion before the court’s conservative supermajority. The court has already heard oral arguments this term in a Maine lawsuit over public funding for private religious schools. At stake in Kennedy is the extent to which public school employees can practice their religion at work. Attorneys for the district said officials were protecting students’ religious freedom by ending what one called a “pray to play” arrangement. But Kennedy’s legal team warns that a decision in favor of the school district could make any expression of religion at school, such as wearing a yarmulke or bowing one’s head in the lunchroom, grounds for dismissal. 

“There is clarity that the court really needs to provide here,” said Jeremy Dys, an attorney with First Liberty Institute, a nonprofit law firm representing Kennedy. “There’s always tension between the administrators trying to stamp out religion, and coaches and teachers who want to engage in their religious beliefs.”

This is the second time Kennedy’s case has reached the high court. The court opted not to hear it in 2019 because the facts regarding Kennedy’s dismissal were unclear. But even then, four justices — Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh — signaled that they would be open to hearing it in the future, saying the lower court’s “understanding of the free speech rights of public school teachers is troubling.”

That invitation could bode well for Kennedy this time around, said Joshua Dunn, a political science professor at the University of Colorado, Colorado Springs. 

“My initial reaction is that the court is going to side with Kennedy since some of the justices already laid out the legal roadmap for him a couple years ago,” he said. 

in 2019 that should Kennedy get another shot, the case could lead to a decision that “moderately” expands educators free speech rights or to a “truly landmark” ruling regarding how far governments have to go to accommodate employees’ religious practices.

Since then, a sixth conservative, Justice Amy Coney Barrett, has joined the court, leading some public school supporters to agree that the justices will lean Kennedy’s way.

“I think, given the makeup of the court and their decisions thus far on religious freedom, that the district will not be successful,” said Sasha Pudleski, advocacy director at AASA, the School Superintendents Association. “But I hope I’m wrong.”

In 2020, the court ruled in , that excluding a religious school from a tax credit scholarship program simply because it was religious was unconstitutional. Last year, the court ruled unanimously that a Catholic social services agency, had a right to exclude same-sex couples from becoming foster parents. And while the court has not yet ruled in the Maine religious school choice case, conservative justices appeared ready to side with the plaintiffs during oral arguments in December.

‘Impressionable students’

The Kennedy case gives the court another chance to weigh in the issue of religious freedom. But the Bremerton district argues that students’ religious freedoms were compromised, not Kennedy’s. 

“No student should ever be made to feel excluded — whether it’s in the classroom or on the football field — because they don’t share the religious beliefs of their coaches, teachers or fellow students,” Rachel Laser, president and CEO of Americans United for the Separation of Church and State, which represents the district, said in a statement. “This case is about protecting impressionable students who felt pressured by their coach to participate repeatedly in public prayer.”

The district offered to give Kennedy a private space on campus to express his Christian beliefs, which included giving thanks after games. But Kennedy turned them down and publicized the fact that he was going to continue his prayers.

For that reason, the district argued that the coach “was not engaging in private prayer, but was instead engaging in public speech of an overtly religious nature,” according to the lawsuit.

The 9th Circuit Court of Appeals, ruling in favor of the district, looked to a 2006 Supreme Court decision, in making its decision. In that case, the court said governments can discipline public employees for what they say while they are performing their jobs. 

Laser, with Americans United, urged the Supreme Court not to “fall for” the argument that Kennedy was praying silently. 

But First Liberty Institute, in its appeal to the court, argued there’s a difference between government speech and private speech, and that Kennedy was still engaging in personal prayers. To suggest that everything Kennedy did while at work was government speech, they wrote, is an “overbroad job description” that other courts have rejected.Republican attorneys general from 24 states agreed. In , they predicted “grave effects on public employees and employers alike, especially within the realm of public education” if the lower court ruling stands.

Calling it a “significant encroachment,” the Supreme Court on Thursday that would have impacted about a quarter of the nation’s school districts and potentially contributed to further staff shortages.

“Permitting [the Occupational Safety and Health Administration] to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization,” the opinion said.

The court’s three left-leaning justices, Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissented, arguing that the decision “stymies the federal government’s ability to counter the unparalleled threat that COVID–19 poses to our nation’s workers.”

As schools struggle to handle COVID-19 outbreaks amid staff shortages, the U.S. Supreme Court Friday heard a lawsuit over an employee vaccine mandate that some experts suggest could stretch districts even thinner.

In November, President Joe Biden that employees in organizations with at least 100 workers be vaccinated or wear a mask and test weekly. The requirement applies to about of the nation’s public school teachers and staff members, after factoring in the several states that have already imposed their own vaccine requirements for district employees.

The plaintiffs, 27 states and the National Federation of Independent Businesses, sued the U.S. Department of Labor and the Occupational Safety and Health Administration, arguing that the mandate — set to go into effect Monday — would create a “labor upheaval” and that many employees will quit rather than comply. The plaintiffs asked the court to block the mandate from being implemented, and a ruling on that could come as early as this weekend.

“This is going to cause a massive economic shift in this country,” said Scott Keller, representing the businesses. He and Ohio Solicitor General Ben Flowers argued that states and Congress — not OSHA — have the authority over public health regulations and that COVID-19 transmission is a risk everywhere, not just in the workplace.

Solicitor General Elizabeth Prelogar, speaking for the Biden administration, stressed that “grave danger exists” when people gather indoors together, which they are more likely to do at work.

The hearing took place as other challenges to vaccine mandates — for both educators and students — move through the legal system. The San Diego Union School District’s vaccine mandate is facing two challenges, one of which also awaits a response from the Supreme Court. And a federal judge in Louisiana last week blocked the Biden administration’s requirement that all Head Start staff be vaccinated by the end of January. 

Even the judge in that case expects the administration to appeal.

“This issue will certainly be decided by a higher court than this one,” Judge Terry Doughty, of the Western District of Louisiana, wrote in his ruling. A Trump appointee, he argued that the Biden administration has overstepped its authority and the mandate could make it difficult to keep classrooms fully staffed.

“If the executive branch is allowed to usurp the power of the legislative branch to make laws, then this country is no longer a democracy — it is a monarchy,” he wrote.

‘Thousands of people dying’

In Friday’s oral arguments on the OSHA case, members of the Supreme Court’s conservative majority also questioned the the legality of the agency’s mandate.

“This is something that the federal government has never done before,” said Chief Justice John Roberts.

But the more liberal justices focused on case and hospitalization rates.

“By this point, we know that the best way to prevent spread is for people to get vaccinated,” said Justice Elena Kagan. “We are still confronting thousands of people dying every time we look around.”
On Wednesday, there were more than 700,000 new cases in the U.S. and more than 1,500 deaths, according to the Centers for Disease Control and Prevention The , however, has declined since the Delta surge in September.

According to Nat Malkus, an education policy expert at the conservative American Enterprise Institute, the mandate would directly apply to districts in 26 states that have their own OSHA plans. But even in those states that are exempt, it could “change the calculus for districts” and make them more likely to require vaccines or regular testing if most other employers in their communities are already enforcing the mandate. In the 24 states directly under OSHA authority, state and local employers are not included.

He noted that if the court opens the door to OSHA having broad authority in this case, it will be “harder to close it in the future,” and would strengthen the government’s argument in the Head Start case. 

While some children turn 5 while in Head Start, most in the federal preschool program for children in poverty, are still too young to be vaccinated. Children are less likely to become seriously ill from COVID-19. But with Omicron leading to higher positivity rates and recent in pediatric COVID-related hospitalizations, medical experts have stressed the importance of surrounding young children with family members and caregivers who are vaccinated.

The National Head Start Association, which represents Head Start families and programs, is calling for a compromise between the administration’s hard-line position and the 24 states that sued over the mandate. The rule also requires children ages 2 and up to wear masks.

“Face masks and vaccinations play a critical role in reducing the spread of COVID-19 in early care and educational settings. But the rule wants it all one way and the lawsuit wants it all the other way,” Yasmina Vinci, executive director of the association, said in a statement. “Head Start leaders are seeking the middle ground, where local programs have the flexibility to work within local guidelines to keep classrooms open and ensure children don’t lose access to crucial services because of a mandate that is impossible to operationalize.”

‘The uphill effort’

But district leaders are concerned about the immediate impact of vaccine mandates on the classroom. 

“It will make shortages worse and exacerbate the uphill effort to get and keep schools open and kids in schools,” Noelle Ellerson Ng, associate executive director for advocacy and governance at AASA, the School Superintendents Association, said about the OSHA rule.

As they monitor court rulings regarding vaccine mandates for employees, school districts are also watching decisions regarding students.  

The Supreme Court is expected to decide before Jan. 24 whether to hear the case of a pro-life student from Scripps Ranch High School in the San Diego district who objects to human cell lines being used in the testing and creation of the COVID-19 vaccines. Cell lines, developed in laboratories and commonly used to manufacture vaccines, come from fetuses aborted decades ago. 

The mandate applies to students 16 and up. Students who don’t comply would be enrolled in remote learning.

“The irony about the mandate is that teachers are allowed to get religious exemptions, but students, who are at far lower risk [from COVID-19], are not,” said attorney Paul Jonna, who represents the plaintiffs.

In a separate San Diego case, the district plans to appeal a superior court judge’s decision . Let Them Choose, an advocacy organization, argues that only the state legislature or public health department — not districts — have the authority to mandate childhood vaccinations. The law also allows parents and students to opt out for personal beliefs. 

Two advocacy organizations made the same argument over the Los Angeles Unified School District’s vaccine mandate for students, which has been delayed until fall. In December, a Los Angeles Superior Court judge to block implementation of the mandate.

Maine allows private religious schools to participate in its tuition benefit program for families that don’t have a public high school in their communities — except those that seek to instill religious beliefs in their students.

That caveat is at the heart of , argued before the U.S. Supreme Court Wednesday, a case that is likely to determine whether states can continue to ban religious schools from publicly-funded choice programs. Based on the justices’ questioning, experts said Maine, and states with similar laws, would likely no longer be able to defend them.

“This absolutely discriminates against parents,” Michael Bindas, a senior attorney with the libertarian Institute for Justice, who represents the plaintiffs, told the court. The state is discriminating against religion, he added, because decisions about whether a school is too religious to participate is “based on the decision of a bureaucrat in Augusta.”

Christopher C. Taub, Maine’s chief deputy attorney general, countered that the state’s program is “religiously neutral” and only seeks to give families free public education “roughly equivalent” to what they would get in a district school. 

Wednesday’s hearing was the second time in two years the Supreme Court has considered whether public funds can pay for students to attend religious schools as part of school choice programs — an issue that public school advocates argue is a clear violation of the First Amendment’s separation of church and state. In 2020, the court ruled in , that the state could not exclude a religious school from a tax credit scholarship program simply because it was religious. The question in Carson takes the issue a step further, asking the court if officials can still ban such schools if they spend state money to teach religion. The fine legal parsing revolves around the issue of “status vs. use” — in this case, the difference between an institution that has a religious affiliation and one that uses public money to promote religion. 

“What’s worrying me is that if the state must give money to the schools, they are going to get into all kinds of religious disputes,” said Justice Stephen Breyer, one of the three iberal members of the court. “People will think the government favors some things as opposed to others, and that will cause strife.”

Bindas responded that the benefit “severs the link” between government spending and religious schools because it goes directly to parents, who ultimately make the choice. He said in a webinar following the hearing, that those who receive Pell Grants or go to college on the G.I. bill can already use funds at religious institutions. 

Justice Brett Kavanaugh, among the six conservative majority members of the court, said the plaintiffs in the case — two families that were denied the benefit — are “seeking equal treatment, not special treatment.”

Justice Samuel Alito noted, as Bindas did, that until 1980, the state allowed schools that teach religion to participate. “Are you aware of a history of strife?” he asked.

Alex Luchenitser, an associate vice president at Americans United for Separation of Church and State, described Wednesday’s hearing as “troubling.”

“Very few of the justices paid any attention to the longstanding principle at the heart of American constitutional tradition —.that taxpayers should not be forced to fund religious education,” he said.

Because both schools attended by students in the case are opposed to hiring gay teachers, and one does not admit transgender students, a decision in favor of the plaintiffs could mean tax dollars would fund schools that discriminate based on sexual orientation or gender identity.

‘Picking and choosing’

Carson focuses on a Maine law in which towns without a high school cover the cost of tuition for students to attend private schools or public schools in other districts. 

Arguing for the Biden administration, Malcolm Stewart, U.S. deputy solicitor general, said the state is being fair because the program wasn’t “intended to provide the broadest range of possible choices. It’s intended to provide a substitute for public education.”

But at the webinar, Bindas said he was “confident the justices are going to agree with us,” in part because the benefit can be used at elite, expensive private schools that are far from equivalent to what a public school can provide. The state has even allowed families to use the benefit at boarding schools in states as far as California.

Joshua Dunn, a political science professor at the University of Colorado-Colorado Springs, said it could be “difficult for Maine” to win this case because the state is “picking and choosing among religious schools.”

That aspect of the state’s program both hurts and helps its case, added Derek Black, a constitutional law professor at the University of South Carolina. The court could find that the state is not discriminating against religion because it does allow some sectarian schools to participate.

But he added, “I don’t see five people trying to rule in Maine’s favor right now.”

The tuitioning programs are unique to New England, but a decision in favor of the plaintiffs would strike another blow to state laws — known as “Blaine Amendments” — that restrict government funding of religious schools.

In , for example, five families are suing the state for not allowing them to spend funds in their 529 college savings accounts on tuition at private schools. The 2017 federal tax cut law included a provision that allows families to use these accounts for K-12 expenses. But Michigan still prohibits their use at private schools, which, officials argue, means they’re not discriminating against religious schools.

While the argument in Carson doesn’t apply in the Michigan case, “the only thing keeping Blaine Amendments alive is this status-use distinction,” Dunn said. “Getting rid of it likely would remove the last bit of life support that they’re on.”

Dunn suggested the justices could rule that, as in Espinoza, this is really a case of discrimination based on religious status, overruling the 1st Circuit Court of Appeals, which argued it was a case about religious use of public funds. 

Black said considering how little the justices’ questions focused on using public funds to teach religion, that could be the way they’re leaning. 

But deciding this case on the grounds of Espinoza “just delays the issue” because there are already similar cases asking the same question, Dunn said. “I don’t think they can dodge it.”

There’s also a slim chance that the court could decide the plaintiffs didn’t have “standing” — the right to make the legal argument — because the religious schools the plaintiffs chose to attend have said they wouldn’t accept public funds anyway. Both Justices Clarence Thomas and Amy Coney Barrett raised that issue.

But that’s unlikely to be the result, Black said  “They didn’t take this case to issue a ruling based on standing.”

But censuring a board member for criticism of the board violates that person’s First Amendment rights and has “significant chilling effects,” responded Michael Kimberly, attorney for former trustee David Buren Wilson, who sued the system after he was censured.

During their questioning in Houston Community College System v. Wilson, the justices asked whether there should be limits to censure. Justices Clarence Thomas and Elena Kagan asked if censure can include fines or even imprisonment. But Richard Morris, attorney for the community college system — and for hundreds of school boards in Texas — said he didn’t think incarcerating a member for something they said was “within the history and tradition of this country.”

Chief Justice John Roberts asked Kimberly whether agreeing with Wilson would open the door to lawsuits. 

“If you prevail, then whenever there’s a censure resolution, the response is going to be a lawsuit against the board for defamation, libel, and that would then go to the courts and they would have to resolve that,” he said.

While the case pertains to a community college, it’s impact is likely to be far broader. It is playing out as school board members across the country confront multiple divisive issues, from requiring masks to teaching students about racial discrimination. While boards this year have faced public protests and sometimes verbal and physical over their positions, disputes among members — sometimes — are happening as well. The court’s decision could limit efforts to rein in members who use social media or other platforms to air complaints against the board. Supporters of the community college board, including the , argue that a ruling for Wilson could bring the actions of elected boards “squarely within the purview of federal district courts, crippling a public body’s ability to self-govern.” But free speech advocates argue elected boards can go too far.

“Sometimes when the government speaks, it can violate First Amendment rights,” said Will Creeley, legal director at the Foundation for Individual Rights in Education. He said a broad ruling by the court in favor of the college system “could impact decision-making both in higher ed, K-12 and beyond.”

Wilson, who has long been at odds with his fellow board members, served from 2013 to 2019, and could return to the board if he is victorious in a Nov. 2 election. In 2017, he disagreed with the board’s decision to fund a campus in Qatar. In protest, he programmed robocalls to constituents of other trustees, went on local radio stations to discredit them and hired a private agency to investigate their actions, according to court documents. He also launched a website to publicize his concerns. 

In , the college system said its rebuke “does not suppress or impermissibly chill the member’s own speech, compel him to espouse the majority’s views, or prevent him from doing his legislative job. The circumstances here thus provide no basis for a First Amendment claim.” 

But David Keating, president of the Institute for Free Speech, which co-authored a “friend of the court” brief in support of Wilson, said even if his behavior was “extremely obnoxious,” the censure crossed the line because it tried to control what he was saying outside of his official duties. 

The board of trustees “viewed him as a gadfly, but that doesn’t mean gadflies aren’t right about some things,” Keating said.

Wilson’s brief argued that the board made unwise decisions regarding its partnership with Qatar and had a “history of corruption” that resulted in pleading guilty to bribery and serving time in federal prison.

‘The criticisms of government’

Keating added it wasn’t just the trustees’ censure resolution that infringed on Wilson’s rights — it was the additional penalties attached to it. The censure made Wilson ineligible for board officer positions, cut off reimbursements for college-related travel and required him to seek approval before accessing funds in his faculty account. 

Those penalties received considerable attention at Tuesday’s hearing. In its ruling, the 5th Circuit Court of Appeals found that Wilson had a First Amendment claim because the censure itself reprimanded him for speaking out on an issue of “public concern” — not because it included penalties. But the justices wanted to know why they shouldn’t also consider those sanctions.

Morris argued that prohibiting a body from using censure would have a “destabilizing” impact and that even private citizens “have to be able to endure the criticisms of government.”

The college system holds that the public — not the courts — should weigh in on disputes between elected officials at the ballot box.

“As with all political speech, the ultimate audience is the people,” their brief said. “Disputes like the one between respondent Wilson and his legislative colleagues must be resolved by the voters.”

Some recent conflicts between board members involve the same COVID-related issues or racial equity initiatives — linked to the umbrella of critical race theory — that are prompting public demonstrations and shouting matches. In a Texas district, for example, there is two members who left a September meeting because of social distancing rules that limited the number of people who could attend.

In , board member Jeff Church, who is facing censure, sees parallels between the Houston case and his of the board and the district. 

“Theoretically, I may not be losing tangible benefits, but the free speech issue remains,” he said.

According to board President Angela Taylor, Church has , including spreading misleading information and communicating with constituents by email without copying her.

Church, a conservative who opposes what he labels “outrageous so-called social justice education,” the district’s policies are “so vague that you can censure a ham sandwich.” 

But Joy Baskin, director of legal services for the Texas Association of School Boards, said censure protects the rest of the board’s free speech rights. If the 5th Circuit court’s ruling stands, “boards will be so afraid of litigation that they will stay away from what should be course correction,” she said.

Some experts anticipate the court will issue a limited ruling. Ethan Ashley, co-CEO of School Board Partners, which trains and supports “equity-minded” board members, said he expects the justices to be “sensitive to the concerns of speech that can impede a board’s ability to operate,” such as leaking confidential information discussed in an executive session.

But it’s important for board members to be able to “voice their own opinions in order to hold the system accountable, especially if the needs of their constituents have been perpetually minimized,” he said. 

Keating said a legislative body is akin to a workplace, where there are expectations for behavior. But he added that whether members should be censured for what they say or do outside of official proceedings is a more difficult question.

“This case has enough variables and moving parts that it’s really hard to predict what sort of guidance might come out of this,” he said.

The plaintiffs in the first two cases, Troesch v. Chicago Teachers Union and Fischer v. Murphy in New Jersey, said that so-called “escape periods” — short windows of time in which employees can opt out of paying union dues — are allowing states to avoid compliance with the court’s 2018 decision in . 

In Janus, the court ruled that the fees violate non-union members’ First Amendment rights because that money subsidizes political and policy positions.

The court on Monday also denied a request to hear a case from a Chicago teacher, , who argues he should receive a refund for the union fees he paid. Ocol has the picket line in the past two Chicago teacher strikes in 2016 and 2019.

A Supreme Court ruling on the post-Janus lawsuits would have impacted nearly 5 million members of public sector unions, according to the National Right to Work Legal Defense Foundation, which has been fighting what it calls “schemes” to get around the 2018 ruling. For example, 17 states limit withdrawal from the union to official escape periods, which can range from 10 to 30 days. If educators miss that opt-out window, school districts continue withdrawing the union dues from their paychecks for another year. Some of the laws were passed shortly after the Janus decision. But the Foundation and its clients haven’t been successful, and the appellate courts for the 3rd, 7th, 9th and 10th circuits have upheld restrictions on when employees can opt out of paying fees.

“We are disappointed the Supreme Court did not take this opportunity to clarify this important issue,” Patrick Semmens, the Foundation’s vice president, said in a statement. “We believe the Janus ruling does not permit public sector employees’ constitutional rights to be limited to an arbitrary union-created ‘escape period,’ and that eventually the High Court will need to step in to prevent Janus from being undermined.”

The Foundation continues to press that point. In late October, the Foundation asked the court to hear several that don’t involve teachers. The anti-union attorneys argue some new employees are never informed about their right to refuse to pay dues under the Janus decision.

According to Colin Sharkey, executive director of the non-union Association of American Educators, thousands of teachers contact the organization each year for help on how to exit their union.

“Numerous states made it even harder to leave the union in the aftermath of the Janus decision, greatly limiting the will of many public employees,” he said.

But unions, which have seen declines in membership, maintain that they negotiate on behalf of all employees, whether or not they want to be part of a union. 

Randi Weingarten, president of the American Federation of Teachers, said the court’s denial “exposed these frivolous cases for what they are: a cynical attempt by well-funded, anti-union radicals to flood the zone with countless post-Janus lawsuits to drain unions of resources.”

But despite their resignations, the Chicago Public Schools continued to withdraw dues from their paychecks on the union’s behalf. The union argues the deduction was legal because the educators signed a contract in 2017 agreeing to the dues.

Troesch and Nkemdi sued, and now are asking the U.S. Supreme Court to take their case. Troesch v. Chicago Teachers Union asks whether signing a membership contract sufficiently authorizes unions to continue collecting the money. The plaintiffs argue that states are denying employees’ rights with so-called “escape periods” — windows of time, ranging from 10 to 30 days, in which employees can opt out.

If employees miss that window — which National Right to Work Legal Defense Foundation attorney William Messenger described as a “mandatory subscription service” — unions continue to collect the dues.

“Employees subject to these restrictions are effectively prohibited from exercising their First Amendment right to stop paying for union speech for 335–55 days each year, if not longer,” the plaintiffs argue in their petition to the court.

The Supreme Court won’t decide until October whether to hear the Troesch case, but if it does, the outcome would have an impact on 4.7 million members of public-sector unions in 17 states that have escape periods, Messenger said.

The case is the latest to argue that states and unions are skirting the court’s 2018 decision in . In a major blow to unions, the court ruled in that case that collecting union, or “agency,” fees from “nonconsenting” public-sector employees is unconstitutional because the money subsidizes unions’ political and policy positions. The justices said unions can’t just presume that employees have waived those rights. Some predicted the Janus decision would seriously cripple the unions’ political power, but their over school reopenings shows that hasn’t been the case.

Making it ‘harder to resign’ 

Referring to the escape periods, the Troesch petition says, “The Court should not allow the fundamental speech rights it recognized in Janus to be hamstrung in this way.” But so far, the lower courts haven’t agreed. The U.S. Court of Appeals for the 7th Circuit in Troesch, as well as the 3rd, 9th and 10th circuits, have upheld the restrictions. Messenger is also asking the court to hear , in which two teachers from New Jersey’s Ocean Township School District are challenging that state’s 10-day escape period. The 3rd Circuit ruled against those teachers in January.

An escape period is considered a “maintenance of membership” strategy, explained Michael Hartney, a political science professor at Boston College.

“The union has an incentive to try to make it harder to resign,” he said. “If people were dropping out like flies every year, they wouldn’t be able to budget.”

But he added that striking down these union security provisions is less important to right-to-work advocates than overturning a giving unions exclusive bargaining rights. In other words, even employees who don’t join unions in states with collective bargaining laws still can’t negotiate their own salary and benefits, Hartney said.

Unions argue that they negotiate on behalf of all teachers and other school staff, regardless of membership

Attorneys general weigh in

Republican attorneys general in 16 states filed with the court in late July, urging the justices to hear the Troesch case.

“Across the country, public-sector unions have resisted Janus’s instructions and devised new ways to compel state employees to subsidize union speech,” they wrote. “When constitutional rights are at stake, this Court requires ‘clear and compelling’ evidence of waiver precisely to protect individuals from unwittingly relinquishing their fundamental freedoms.”

Union leaders argue the precedent is in their favor.

“The union feels that this lawsuit was correctly dismissed by the federal trial and appellate courts, and believes those rulings will stand,” said Ronnie Reese, a spokesman for the Chicago Teachers Union. The union and the district have until Sept. 27 to argue why the court shouldn’t hear the case. Defendants in the New Jersey case have the same deadline.

The plaintiffs in both states argue that even though they signed union contracts before the Janus decision, the court’s ruling in that case made the dues deductions unconstitutional.

But in the 3rd Circuit ruling, Judge Patty Shwartz wrote, “That is the risk inherent in all contracts; they limit the parties’ ability to take advantage of what may happen over the period in which the contract is in effect.”

Hartney said Justice Samuel Alito, who wrote the Janus opinion, might want to hear the case because he has “voiced skepticism that union security provisions outweigh First Amendment violations.”

But Chief Justice John Roberts is known for preferring incremental changes in constitutional law and might not want to take up the issue because the Janus decision was “such a shot across the bow.”