{"id":824,"date":"2024-11-12T13:03:34","date_gmt":"2024-11-12T19:03:34","guid":{"rendered":"https:\/\/mitchellhamline.edu\/law-journal\/?p=824"},"modified":"2025-03-12T15:35:55","modified_gmt":"2025-03-12T20:35:55","slug":"the-public-schools-and-a-conflicting-trinity-of-rights","status":"publish","type":"post","link":"https:\/\/mitchellhamline.edu\/law-journal\/2024\/11\/12\/the-public-schools-and-a-conflicting-trinity-of-rights\/","title":{"rendered":"The Public Schools and a Conflicting Trinity of Rights"},"content":{"rendered":"
\n

The Public Schools and a Conflicting Trinity of Rights<\/h2>\n

\"\"Brian Boggs, Ph.D., J.D., is an Assistant Professor of Policy and Educational Leadership at the University of Michigan-Dearborn. He\u00a0has written extensively on educational organizational complexity, specifically as it affects urban schools, policy, and the intersectionality of law and education. His most recent book is\u00a0In the Shadow of the Capitol Dome: Critical Legal Theory and State Level Educational Policymaking. His recent articles include \u201cExpression of LGBTQ Student Sexual Orientation and Gender Identity in the K-12 Educational System\u201d published in the\u00a0Mitchell Hamline Law Journal of Public Policy and Practice\u00a0called and \u201cConceptualizing Virtual Instructional Resource Enactment in an Era of Greater Centralization, Specification of Quality Instructional Practices, and Proliferation of Instructional Resources\u201d published in the\u00a0Teachers College Record\u00a0at Columbia. Further, he has published book chapters in:\u00a0Handbook of Urban Education Leadership; Handbook of Education Politics and Policy; School to Prison Pipeline; Emerging Issues and Trends in Education; Beyond Marginality; and\u00a0Educational Policy Goes to School. Finally, he has also been published in the\u00a0Journal of School Public Relations. He holds a Ph.D. in educational policy from Michigan State University and J.D. from Mitchell Hamline School of Law.\u00a0He also holds a BA in English and History and an MA in English Language and Literature, specializing in Rhetoric, both from the University of Michigan-Flint.<\/p>\n<\/div>\n

I.\u00a0 Introduction<\/h2>\n

\"\"<\/p>\n

This article makes an argument that the current judicial landscape related to the Free Exercise Clause, Establishment Clause, and Free Speech Clause has begun to shift and how the U.S. Supreme Court balances the inherent and competing tensions of these three clauses (a trinity of rights), especially in public education. As we will explore, the change is a return to a more historical view of the U.S. Supreme Court held before the 20th century. This article reviews recent U.S. Supreme Court decisions and analyzes the shift in stare decisis that is currently occurring. Finally, this article examines recently decided lower court cases that the U.S. Supreme Court may hear in the near future and what impact this could have, if any.\u00a0<\/span>\u00a0<\/span><\/p>\n

II. \u00a0A New Direction – The Ever-Changing Landscape<\/h2>\n

Since 2020, three fundamental cases have and continue to have the potential to change the landscape for religion in public schools. The first two cases, Espinoza<\/em> and Carson<\/em>, concern funding \u2013 at one level or another \u2013 for parochial schools. [1]<\/a> These two challenge previously decided case law and frameworks, which we will explore in-depth. The third case, Kennedy<\/em>, involves prayer on school grounds by a faculty member, ruling changing the framework for religious expression in schools. [2]<\/a> We will begin looking at each in chronological order as each decision builds on the next.<\/p>\n

A. Espinoza v. Montana Department of Revenue<\/em> \u2013 The First Chink in the Armor<\/h3>\n

Espinoza v. Montana Department of Revenue <\/span><\/i>focuses on a tax credit program established by the Montana Legislature.<\/span> [3]<\/a> <\/span>Specifically, the program \u201cgrants tax credits to those who donate to organizations that award scholarships for private school tuition.\u201d<\/span> [4]<\/a> <\/span> However, because of the Montana constitution, the Montana Department of Revenue created a rule prohibiting scholarships from being used at religious schools.<\/span>[5]<\/a> <\/span>The pertinent part of the constitution stated any school \u201ccontrolled in whole or in part by any church, sect, or denomination\u201d cannot receive public funds.<\/span>[6]<\/a> <\/span>Three parents sought to send their children to the Stillwater Christian School but were prevented by this decision and brought suit, arguing the case violated the Free Exercise Clause and the Establishment Clause because the law discriminated against their religious freedom.<\/span>[7] <\/a><\/span>The Montana Supreme Court sided with the Montana Department of Revenue, relying on the \u201cno-aid\u201d clause of the state constitution.<\/span>[8]<\/a><\/span> The U.S. Supreme Court then granted certiorari to hear the case. The Court specifically framed the question as \u201cwhether the Free Exercise Clause of the United States Constitution barred that application of the no-aid provision.\u201d<\/span>[9]<\/a><\/span> The Court concluded that it did in a 5-4 majority opinion authored by Chief Justice John Roberts and stated, \u201c[t]he application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitution.\u201d<\/span>[10]<\/a><\/span><\/p>\n

Chief Justice Roberts walked through his logic building on previous U.S. Supreme Court decisions. Specifically, he stated, \u201cWe have recognized a \u2018play in the joints\u2019 between what the Establishment Clause permits and the Free Exercise Clause compels.\u201d<\/span>[11]<\/a><\/span>\u00a0As the Court notes, the \u201cparties do not dispute that the scholarship program is permissible under the Establishment Clause. Nor could they. We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.\u201d<\/span>[12]<\/a><\/span>\u00a0Chief Justice Roberts concluded that the result of Montanans independently choosing to spend their scholarships at such schools, the money would eventually make its way to religious schools.\u201d<\/span>[13]<\/a><\/span><\/p>\n

However, the conflict the Court had to deal with was a result of the state\u2019s more restrictive constitution. Under Montana\u2019s constitution, even indirect support was a violation.<\/span>[14] <\/a><\/span>Thus, the Court had to view this in light of how it would affect individuals under the U.S. Constitution.<\/span>[15]<\/a> <\/span>Chief Justice Roberts states, \u201c[t]he question \u2026 is whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana\u2019s no-aid provision to bar religious schools from the scholarship program \u2026 and we assess whether excluding religious schools and affected families from that program was consistent with the Federal Constitution.\u201d<\/span>[16]<\/a><\/span><\/p>\n

According to the Court, part of the issue revolves around religious hostility and not neutrality \u2013 again, holding that neutrality does not mean the absence of religion. Chief Justice Roberts continues that the law \u201c\u2018protects religious observers against unequal treatment\u2019 and against \u2018laws that impose special disabilities on the basis of religious status\u2019\u202f<\/span>\u2026 <\/span><\/i>the Free Exercise Clause protects against laws that \u2018penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.\u2019\u201d<\/span>[17]<\/a><\/span><\/p>\n

Chief Justice Roberts concludes, \u201cMost recently,\u202f<\/span>Trinity Lutheran<\/span><\/i>\u202fdistilled these and other decisions to the same effect into the \u2018unremarkable\u2019 conclusion that disqualifying otherwise eligible recipients from a public benefit \u2018solely because of their religious character\u2019 imposes \u2018a penalty on the free exercise of religion that triggers the most exacting scrutiny.\u2019\u201d<\/span>[18]<\/a><\/span>\u00a0Continuing, \u201cHere too Montana\u2019s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.\u201d<\/span>[19]<\/a><\/span>\u00a0<\/span>\u00a0<\/span><\/p>\n

This brings to bear two additional elements as a result of this case. First, are Blaine Amendments enshrined in state constitutions and, second, the supremacy of the U.S. Constitution. Chief Justice Roberts brings these to the forefront of his argument and notes that they are, by definition, hostile to religion by design.<\/span>[20]<\/a> <\/span>He stated,\u00a0<\/span>\u00a0<\/span><\/p>\n

[M]any of the no-aid provisions belong to a more checkered tradition shared with the Blaine Amendment of the 1870s \u2026 it was an open secret that \u201csectarian\u201d was code for \u201cCatholic\u201d \u2026 The Blaine Amendment was \u201cborn of bigotry\u201d and \u201carose at a time of pervasive hostility to the Catholic Church and to Catholics in general\u201d; many of its state counterparts have a similarly \u201cshameful pedigree.\u201d<\/span>[21]<\/a><\/span><\/p><\/blockquote>\n

Because of this hostility and its purpose, these causes violated the Constitution. Second, when a state constitution violates the U.S. Constitution, the U.S. Constitution controls the analysis.<\/span>[22]<\/a> <\/span>Chief Justice Roberts closes his opinion by stating,\u00a0<\/span>\u00a0<\/span><\/p>\n

[t]he Supremacy Clause provides that \u2018the Judges in every State shall be bound\u2019 by the Federal Constitution, \u2018any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.\u2019 Art.\u202fVI, cl.\u202f2. \u2026 Given the conflict between the Free Exercise Clause and the application of the no-aid provision here, the Montana Supreme Court should have \u2018disregard[ed]\u2019 the no-aid provision and decided this case \u2018conformably to the [C]onstitution\u2019 of the United States.\u202f<\/span>[23]<\/a><\/span><\/p><\/blockquote>\n

This case shows the complications of the Free Exercise and Establishment Clauses. The courts have previously held the Establishment Clause favoring government over the individual rights of Free Exercises. However, a shift here removes a sizeable constitutional barrier to supporting parochial schools and increases parental choice. In many states, legislatures can create school-of-choice programs for religious and non-religious private schools. This decision pushes more support for students than educational systems. Public school supports view this as an assault on the education system. Randi Weingarten, president of the American Federation of Teachers, said the decision was \u201ca seismic shock that threatens both public education and religious liberties \u2026 never in more than two centuries of American history has the free exercise clause of the First Amendment been wielded as a weapon to defund and dismantle public education.\u201d<\/span>[24]<\/a><\/span>\u00a0However, the same was cried by many Catholics and others when states installed Blaine amendments that restricted them.\u00a0<\/span>\u00a0<\/span><\/p>\n

B. Carson v. Makin<\/em> – Tuition Assistance<\/h3>\n

Like <\/span>Espinoza<\/span><\/i>, <\/span>Carson v. Makin <\/span><\/i>(2022) involves a challenge to a Maine program that excludes religious schools from tuition assistance for students in areas without public schools.<\/span>[25]<\/a> <\/span>The plaintiffs argued that this exclusion violates the Free Exercise Clause of the First Amendment.<\/span>[26]<\/a> <\/span>In this particular case, the State of Maine has areas that do not operate a secondary school in the public district.<\/span>[27]<\/a> <\/span>As a result, the state provides tuition assistance for students to attend private schools.<\/span>[28]<\/a> <\/span>However, participating private schools must meet state requirements, and an essential state requirement is that the school be nonsectarian.<\/span>[29]<\/a><\/span>\u00a0Thus, religious schools are barred from participation. Parents brought suit against \u201cthe commissioner of the Maine Department of Education, alleging that the \u2018nonsectarian\u2019 requirement violated the Free Exercise Clause and the Establishment Clause of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment.\u201d<\/span>[30]<\/a> <\/span>Thus the question before the Court was, does Maine\u2019s \u201cnonsectarian\u201d requirement for otherwise generally available tuition assistance payments violate the Free Exercise Clause? The Court found that it did.<\/span>[31]<\/a><\/span><\/p>\n

Chief Justice Roberts concludes, \u201cIn particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.\u201d<\/span>[32]<\/a><\/span>\u00a0Further, he built on what began in <\/span>Trinity Lutheran<\/span><\/i> as the \u201cunremarkable\u201d principal and again cited in <\/span>Espinoza<\/span><\/i>.<\/span>[33]<\/a><\/span>\u00a0The Court stated, \u201cThe Free Exercise Clause forbade the State\u2019s action. The application of the Montana Constitution\u2019s no-aid provision \u2026 required strict scrutiny \u2026 \u2018A State need not subsidize private education,\u2019 \u2026 \u2018[b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.\u2019\u201d<\/span>[34]<\/a><\/span>\u00a0Building on this new doctrine of unremarkability, the Court recalled that it had previously held that the Free Exercise clause did not allow states to withhold benefits from eligible religious organizations solely based on their \u201creligious character\u201d and that such discrimination was \u201c\u2018odious to our Constitution\u2019 and could not stand<\/span>.\u201d<\/span>[35]<\/a><\/span><\/p>\n

In this case, the Supreme Court\u2019s decision will have profound implications for using public funds in religious education and the broader interpretation of religious freedom in the United States. The majority held that \u201cMaine\u2019s \u2018nonsectarian\u2019 requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.\u201d<\/span>[36]<\/a> <\/span>This casts a future specter on how state legislatures will allocate public funds to private religious schools and likely will promote more educational choices for parents and students, reaffirming <\/span>Espinoza<\/span><\/i>. A senior reporter for K\u201312 Dive felt this could open the door for religious charter schools.<\/span>[37]<\/a> <\/span>Accordingly, she stated, \u201cthe logic from the case could also be applied to states with religious charter schools, which means in the state with a charter school authorizing law \u2013 which includes at least 45 states and the District of Columbia \u2013 could be required to fund religious charters.\u201d<\/span>[38]<\/a><\/span>\u00a0This would be a major breakthrough for choice and charters for public education options. This case took another step towards the clearing Blaine amendments unconstitutional but did not give it the full measure.\u00a0<\/span>\u00a0<\/span><\/p>\n

C. Kennedy v. Bremerton Schools District<\/em> – Prayer at the 50-Yard Line<\/h3>\n

This most recent case is a game changer in terms of applying the Free Exercise and Establishment Clauses. The case addresses the question: Does the \u201cFree Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal[?]\u201d[39] <\/a><\/span>The court reasoned \u2013 yes, \u201cthe Constitution neither mandates nor permits the government to suppress such religious expression.\u201d<\/span>[40]<\/a><\/span>\u00a0A high school football coach in the state of Washington was terminated by the school district for engaging in quiet prayer at the 50-yard line following games.<\/span>[41]<\/a><\/span><\/p>\n

Justice Gorsuch, delivering the 6-3 opinion of the court, describes this scene as follows:\u00a0<\/span>\u00a0<\/span><\/p>\n

Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied. Still, the Bremerton School District disciplined him anyway. It did so because it thought anything less could lead a reasonable observer to conclude (mistakenly) that it endorsed Mr. Kennedy\u2019s religious beliefs. That reasoning was misguided. Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy\u2019s.<\/span>[42]<\/a><\/span>\u00a0<\/span>\u00a0<\/span><\/p><\/blockquote>\n

Mr. Kennedy had engaged in this practice for seven years and there were not any complaints.<\/span>[43]<\/a><\/span>\u00a0Furthermore, it was so unnoticed that it evaded the district superintendent and high school principal until an employee from another district complemented the high school principal on it.<\/span>[44]<\/a><\/span> At that time, the district immediately took action to suppress this behavior.[45]<\/a> <\/span>The district provided Mr. Kennedy a letter that stated, \u201cany religious activity \u2026 must be \u2018nondemonstrative\u2019 \u2026 the District appealed to what it called a \u2018direct tension between\u2019 the \u2018Establishment Clause\u2019 and \u2018a school employee\u2019s [right to] free[ly] exercise\u2019 his religion \u2026 the District explained, an employee\u2019s free exercise rights \u2018must yield \u2026 to avoid school endorsement.\u2019\u201d<\/span>[46]<\/a> <\/span>Put another way, Mr. Kennedy must give up his rights as to appear not to endorse religion. The district engaged in a back and forth with Mr. Kennedy and restricted his practices before finally putting him on administrative leave and \u201cprohibited him from \u2018participat[ing], in any capacity, in .\u202f.\u202f. football program activities\u2019 \u2026 the superintendent criticized Mr. Kennedy for engaging in \u2018public and demonstrative religious conduct while still on duty as an assistant coach\u2019 by offering a prayer following the games.\u201d<\/span>[47]<\/a><\/span><\/p>\n

The court begins by addressing what type of speech Mr. Kennedy was engaged in. As Justice Gorsuch write, \u201cour precedents remind us that the First Amendment\u2019s protections extend to \u2018teachers and students,\u2019 neither of whom \u2018shed their constitutional rights to freedom of speech or expression at the schoolhouse gate\u2019 \u2026 none of this means the speech rights of public school employees are \u2026 boundless.\u201d<\/span>[48]<\/a> <\/span>As a result of the claim by the district that his was government speech and Mr. Kennedy\u2019s claim that it was private speech, the Court, \u201cTo account for the complexity associated with the interplay between free speech rights and government employment, this Court\u2019s decisions in\u202f<\/span>Pickering<\/span><\/i>\u202fv.\u202f<\/span>Board of Ed. of Township High School Dist. 205<\/span><\/i>,\u202f<\/span>Will Cty.<\/span><\/i>,\u202f391 U.S. 563\u202f(1968),\u202f<\/span>Garcetti<\/span><\/i>,\u202f547 U.S. 410, and related cases suggest proceeding in two steps.\u201d<\/span>[49]<\/a> <\/span>The Court argues that these steps are: (1) examining the nature of the speech, (2) and if that nature is of public concern, the Court must engage in a balancing test of competing interest and consequences.<\/span>[50]<\/a> <\/span>After conducting the analysis, the Court concludes it was, \u201cclear \u2026 that his speech was private speech, not government speech. When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech \u2018ordinarily within the scope\u2019 of his duties \u2026 He did not speak pursuant to government policy.\u201d<\/span>[51]<\/a><\/span><\/p>\n

The court next moves on to the heart of the issue \u2013 the interplay between the Establishment Clause, Free Exercise Clause, and Free Speech Clause. Justice Gorsuch states the district argues, \u201csuspension \u2026 was essential to avoid a violation of the Establishment Clause \u2026 [his] prayers might have been protected by the Free Exercise and Free Speech Clauses. But his rights were in \u2018direct tension\u2019 with the competing demands of the Establishment Clause \u2026 [and] \u2026 had to \u2018yield.\u2019\u201d<\/span>[52]<\/a> <\/span>Justice Gorsuch finds this to be incongruous, arguing,\u00a0<\/span>\u00a0<\/span><\/p>\n

But how could that be? It is true that this Court and others often refer to the \u2018Establishment Clause,\u2019 the \u2018Free Exercise Clause,\u2019 and the \u2018Free Speech Clause\u2019 as separate units. But the three Clauses appear in the same sentence \u2026 A natural reading \u2026 suggest[s] the Clauses have \u2018complementary\u2019 purposes, not warring ones where one Clause is always sure to prevail over the others.<\/span>[53]<\/a><\/span><\/p><\/blockquote>\n

The district relied its case on the \u201c<\/span>Lemon<\/span><\/i>\u202fand its progeny.\u201d<\/span>[54] <\/a><\/span>However, Justice Gorsuch articulates that this approach has \u201c\u2018shortcomings\u2019 associated with this \u2018ambitiou[s],\u2019 abstract, and ahistorical approach to the Establishment Clause.\u201d<\/span>[55]<\/a><\/span>\u00a0He stated that this has become apparent to the court and thus, \u201cthis Court long ago abandoned\u202f<\/span>Lemon<\/span><\/i>\u202fand its endorsement test offshoot.\u201d<\/span>[56] <\/a><\/span>He concludes, \u201cthe Establishment Clause does not include \u2026 a \u2018modified heckler\u2019s veto, in which .\u202f.\u202f. religious activity can be proscribed\u2019 based on\u202f\u2018perceptions\u2019\u202for\u202f\u2018discomfort\u2019\u2026 Nor [it] \u2018compel the government to purge from the public sphere\u2019 anything an objective observer could reasonably infer endorses or \u2018partakes of the religious.\u2019\u201d<\/span>[57]<\/a><\/span>\u00a0And like that, without overturning <\/span>Lemon<\/span><\/i>, the court has abandoned the Lemon Test.\u00a0<\/span>\u00a0<\/span><\/p>\n

In its place Justice Gorsuch articulates a different approach \u201c[i]n place of\u202f<\/span>Lemon<\/span><\/i>\u202fand the endorsement test.\u201d<\/span>58<\/span> The court has instructed that the Establishment Clause, \u201cmust be interpreted by \u2018reference to historical practices and understandings\u2019 <\/span>\u2026<\/span><\/i>\u202fAn analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some \u2018exception\u2019 within the \u2018Court\u2019s Establishment Clause jurisprudence.\u2019\u201d<\/span>[59]<\/a> <\/span>This signals a return to a more historical, less rigid or test-based approach that not silence religion in the public sphere. The court argues \u201cIn essence, the District asks us to adopt the view that the only acceptable government role models for students are those who eschew any visible religious expression.\u201d<\/span>[60]<\/a> <\/span>The court finds this unacceptable because \u201cin no world may a government entity\u2019s concerns about phantom constitutional violations justify actual violations of an individual\u2019s First Amendment rights.\u201d<\/span>[61]<\/a><\/span><\/p>\n

Justice Gorsuch concludes with an important takeaway. He states,\u00a0<\/span>\u00a0<\/span><\/p>\n

Respect for religious expressions is indispensable to life in a free and diverse Republic\u2014whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.<\/span>[62]<\/a><\/span><\/p><\/blockquote>\n

He further concludes, \u201cBut learning how to tolerate speech or prayer of all kinds is \u2018part of learning how to live in a pluralistic society,\u2019 a trait of character essential to \u2018a tolerant citizenry.\u2019\u201d<\/span>[63] <\/a><\/span>This is crucial\u2014if citizens want to express LGBTQ views, then society must also allow citizens to express religious views; if people want to use pronouns, we must also respect those who do not. The crucible nature that has made our country requires it for our country\u2019s continued survival. We cannot exclude one for another.\u00a0<\/span>\u00a0<\/span><\/p>\n

II.\u00a0 Conclusion<\/h2>\n

After several years of trying to balance between the Establishment Clause and the Free Exercise Clause, the Court is changing directions, especially as it strikes down the Lemon Test and it may be for the best as it does not capture what the constitution means, but rather what others want it to say. As Justice Scalia wrote, the Lemon Test is a, \u201cghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried \u2026 stalk[ing] our Establishment Clause jurisprudence \u2026 [and] frightening \u2026 school attorneys\u201d everywhere.<\/span>[64]<\/a><\/span>\u00a0Justice Gorsuch in <\/span>Kennedy<\/span><\/i> had begun the long awaited exorcism of the Lemon Test.<\/span>[65]<\/a><\/span>\u00a0For too long there has been a focus on relegating religion to a quiet place in the corner to neither be seen nor heard, but the Constitution allows for more than this\u2014it allows for freedom to express one\u2019s self in many ways including through religious practice.\u00a0<\/span>\u00a0<\/span><\/p>\n

The shift in the court\u2019s view has the potential to impact additional cases in the near future. For example, at the time of this writing, the Supreme Court of Oklahoma just ruled on <\/span>Drummond v. Oklahoma Statewide Virtual Charter School Board<\/span><\/i>.<\/span>[66]<\/a> <\/span>In this case, under the Oklahoma Charter Schools Act, the \u201cThe Archdiocese of Oklahoma City and the Diocese of Tulsa applied to the Charter School Board to establish St. Isidore, a religious virtual charter school.\u201d<\/span>[67]<\/a><\/span>\u00a0Under this charter school law and the others in each state, a charter school is a public school that has a sponsor or authorizer and operates as it owns school district.<\/span>[68]<\/a> <\/span>While these schools are public, they are not the traditional public school districts and provide parents with choices of where to send their children and, generally, have not been allowed to be religious based.<\/span>[69]<\/a><\/span><\/p>\n

However, St. Isidore\u2019s makes no bones about it\u2014they are a Catholic school and will work proudly to fulfill their mission. Specifically, the school states, \u201c[r]ooted in the Catholic understanding of the human person and her or his relationship with God and neighbor, [St. Isidore] \u2026 embraces the teachings of the Catholic Church’s Magisterium, and \u2026 fully incorporates these into every aspect of the School, including \u2026 its curriculum and co-curricular activities.\u201d<\/span>[70]<\/a><\/span>\u00a0Interestingly, St. Isidore was named the patron saint of the internet by St. Pope John Paul II and this online school is named after him.<\/span>[71]<\/a> <\/span>St. Isidore\u2019s application and contract was approved by the state charter board in June 2023.<\/span>[72]<\/a><\/span>\u00a0<\/span><\/p>\n

The Oklahoma State Supreme Court heard the case and stated that the question before them was, \u201cwhether the St. Isidore Contract violates state and federal law and is unconstitutional.\u201d<\/span>[73]<\/a> <\/span>The court held the, \u201cSt. Isidore Contract violates the Oklahoma Constitution, the Act, and the federal Establishment Clause. St. Isidore is a public charter school. The Act does not allow a charter school to be sectarian \u2026The Act\u2019s \u2026 prohibit[s] the State from using public money for the establishment of a religious institution.\u201d<\/span>[74]<\/a><\/span>\u00a0These facts sound all too familiar to <\/span>Carson v. Makin<\/span><\/i> and <\/span>Espinoza v. Montana Department of Revenue<\/span><\/i>. The Oklahoma Constitution under Article 2, Section 5 states: \u201cNo public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, …\u201d<\/span>[75]<\/a><\/span><\/p>\n

Arguing that St. Isidore would be a \u201cstate actor,\u201d the court hangs its hat on the Establishment Clause rightly arguing that \u201c[t]he Establishment Clause cases from the U.S. Supreme Court have not dealt with the creation of a religious public school.\u201d<\/span>[76]<\/a><\/span>\u00a0The Court goes on to address all of the major cases discussed in this paper and their lack of application to this one. They state:<\/span>\u00a0<\/span><\/p>\n

In <\/span>Kennedy v. Bremerton School District<\/span><\/i>, 597 U.S. 507, 541-42 (2022), the U.S. Supreme Court discussed comparable situations that violated the Establishment Clause, specifically: <\/span>Zorach v. Clauson<\/span><\/i>, 343 U.S. 306 (1952), where the Court held that requiring or persuading students to spend time in religious instruction was a violation; <\/span>Lee v. Weisman<\/span><\/i>, 505 U.S. 577 (1992), where the Court held that reciting prayers as part of an official graduation ceremony because the school practically compelled attendance and participation was a violation; and <\/span>Santa Fe Independent School District v. Doe<\/span><\/i>, 530 U.S. 290 (2000), where the Court held that broadcasting prayer over the public address system and activities where students were required or expected to participate was a violation. These cases demonstrate the Establishment Clause prohibits public schools (state actors) from requiring or expecting students to participate in religious activities.<\/span>[77]<\/a><\/span><\/p><\/blockquote>\n

Next, the Oklahoma Court takes on <\/span>Carson v. Makin<\/span><\/i> and <\/span>Espinoza v. Montana Department of Revenue<\/span><\/i>. <\/span>The charting board and St. Isidore<\/span> rightly argue the Free Exercise Clause \u201cprohibits a state from denying St. Isidore its right to operate as a charter school solely because it is religious \u2026 . [arguing] \u2026 once a state makes a public benefit available to its citizens, the state cannot exclude \u2026 solely because of its religious affiliation.\u201d<\/span>[78]<\/a><\/span>\u00a0The Court takes great umbrage with this, invoking what it has established as the Free Exercise Trilogy. The court maintains that <\/span>Carson<\/span><\/i>, <\/span>Espinoza<\/span><\/i>, and <\/span>Trinity Lutheran<\/span><\/i> do not apply here and rely entirely on the state-created school theory. <\/span>[79]<\/a><\/span>\u00a0They articulate that the school would not exist without the state and, therefore, is a creature of the state. However, despite all of this, it sounds as though Oklahoma may have just discriminated against St. Isidore in light of the U.S. Supreme Court\u2019s rulings.\u00a0<\/span>\u00a0<\/span><\/p>\n

There is a fair chance that this case could be appealed to and taken up by the U.S. Supreme Court. If so, there is a good chance that <\/span>Carson v. Makin<\/span><\/i> and <\/span>Espinoza v. Montana Department of Revenue<\/span><\/i> will provide significant guidance in deciding the future of such schools. Currently, the Oklahoma Supreme Court could be overruled, allowing the school to operate. This would open the door much wider for private institutions, regardless of their religious status, to access educational funding. This would increase market competition as well as maximize parent choice for their students in a time when there have been heated battles at school board meetings across the country on curricular and reading choices that may espouse societal values not widely held.<\/span>[80]<\/a><\/span>\u00a0<\/span>\u00a0<\/span><\/p>\n

On the horizon may also be a Minnesota case currently in U.S. District Court for the District of Minnesota. According to a complaint filed, <\/span>Loe et al v. Walz et al<\/span><\/i> is a civil rights complaint brought forth due to the actions of the state legislature.<\/span>[81]<\/a><\/span>\u00a0Nearly forty years ago, Minnesota created the Post Secondary Enrollment Options program that enables high school students to earn credit tuition-free.<\/span>[82]<\/a><\/span>\u00a0Implemented in 1985, this program has allowed thousands of students to enroll in public and private universities across the state.<\/span>[83]<\/a><\/span>\u00a0However, the Minnesota legislature recently amended the law to strip this benefit to religious university students.<\/span>[84]<\/a><\/span>\u00a0Specifically, the complaint alleges, \u201cIndeed, during meetings of the Senate Committee on Education Policy, members of the committee stated clearly their intent to exclude religious schools from receiving public dollars.\u201d<\/span>[85]<\/a> <\/span>This suit is likely to be juxtaposed against other court cases recently decided, including <\/span>Carson <\/span><\/i>and<\/span> Trinity Lutheran<\/span><\/i>.<\/span>[86]<\/a> <\/span>The state will have to justify why it decided to allow funding for private religious colleges and universities and then took it away from them simply because they are faith-based. As restated in <\/span>Carson<\/span><\/i>, \u201c\u2018A State need not subsidize private education,\u2019 \u2026 \u2018[b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.\u2019\u201d<\/span>[87]<\/a><\/span><\/p>\n

Over the last fifty years, the U.S. Supreme Court has pushed for the complete secularization of schools and additional public arenas, but the pendulum is swinging back to the middle. As we close, there are several issues on the horizon. However, much of what is to come will be determined by the views of elected officials that nominate and confirm the next several U.S. Supreme Court justices. So, I will leave you with a word of caution as the late Justice Antonin Scalia said, \u201cAs long as judges tinker with the Constitution to \u2018do what the people want,\u2019 instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.\u201d<\/span>[88]<\/a><\/p>\n

\n

<\/a>Footnotes<\/p>\n

[1] Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020); Carson v. Makin, 596 U.S. 767 (2022).<\/p>\n

[2] Kennedy v. Bremerton School District, 597 U.S. 507 (2022).<\/p>\n

[3] Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020).<\/p>\n

[4] Id. at 464.<\/p>\n

[5] Id. at 464.<\/p>\n

[6] Espinoza v. Montana Department of Revenue, 591 U.S. 464, 467 (2020) (citing Mont. Const. art. X, \u00a7 6(1)).<\/p>\n

[7] Espinoza, 591 U.S. 464, 469 (2020).<\/p>\n

[8] Id. at 468.<\/p>\n

[9] Id. at 467.<\/p>\n

[10] Id. at 464.<\/p>\n

[11] \u00a0Espinoza v. Montana Department of Revenue, 591 U.S. 464, 469 (citing Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 449, 458 (2017)) \u00a0(quoting Locke v. Davey, 540 U.S. 712, 718 (2004)).<\/p>\n

[12] Espinoza, 591 U.S. 464, 473-474 (2020).<\/p>\n

[13] Id. at 474.<\/p>\n

[14] Espinoza v. Montana Department of Revenue, 591 U.S. 464, 467 (2020) (citing Mont. Const. art. X, \u00a7 8).<\/p>\n

[15] Espinoza, 591 U.S. 464 (2020).<\/p>\n

[16] Id. at 474.<\/p>\n

[17] Espinoza v. Montana Department of Revenue, 591 U.S. 464, 475 (2020) (citing Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 449 (2017); Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 449 (1988)).<\/p>\n

[18] Espinoza v. Montana Department of Revenue, 591 U.S. 464, 475 (2020) (citing Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 449, 462 (2017)).<\/p>\n

[19] Espinoza, 591 U.S. 464, 476 (2020).<\/p>\n

[20] Id. at 482.<\/p>\n

[21] Espinoza v. Montana Department of Revenue, 591 U.S. 464, 475 (2020) (citing Mitchell v. Helms, 530 U.S. 793, 828-829 (2000)).<\/p>\n

[22] Espinoza, 591 U.S. 464 (2020).<\/p>\n

[23] Id. at 488.<\/p>\n

[24] Linda Jacobson, Despite Espinoza decision\u2019s \u2018seismic shock\u2019 to public schools, context may vary by state, K-12 Dive (June 30, 2020), https:\/\/www.k12dive.com\/news\/despite-espinoza-decisions-seismic-shock-to-public-schools-context-may\/580834\/.<\/p>\n

[25] Carson v. Makin, 596 U.S. 767 (2022).<\/p>\n

[26] Id. at 767.<\/p>\n

[27] Id. at 773.<\/p>\n

[28] Id. at 773.<\/p>\n

[29] Id. at 774.<\/p>\n

[30] \u00a0Id. at 767.<\/p>\n

[31] Id. at 767.<\/p>\n

[32] Id. at 778.<\/p>\n

[33] Id. at 779.<\/p>\n

[34] Id. at 779.<\/p>\n

[35] Id. at 779.<\/p>\n

[36] \u00a0Id. at 789.<\/p>\n

[37] Naaz Modan, Petition to establish nation’s first religious charter school reaches Supreme Court, K-12 Dive, (Oct. 8, 2024), https:\/\/www.k12dive.com\/news\/st-isidore-supreme-court-petition-filed-2024-first-religious-charter\/729267\/.<\/p>\n

[38] \u00a0Naaz Modan, What does Carson v. Makin mean for ed leaders?, K-12 Dive, (June 22, 2022), https:\/\/www.k12dive.com\/news\/what-does-carson-v-makin-mean-for-ed-leaders\/625886\/.<\/p>\n

[39] Kennedy v. Bremerton School District, 597 U.S. 507, 507 (2022).<\/p>\n

[40] Id. at 507.<\/p>\n

[41] Id. at 519-520.<\/p>\n

[42] Id. at 513.<\/p>\n

[43] Id. at 515.<\/p>\n

[44] Id. at 515.<\/p>\n

[45] Id. at 515-516.<\/p>\n

[46] Id. at 516.<\/p>\n

[47] \u00a0Id. at 519.<\/p>\n

[48] Id. at 527.<\/p>\n

[49] Id. at 527.<\/p>\n

[50] Id. at 508.<\/p>\n

[51] Id. at 529.<\/p>\n

[52] Id. at 532.<\/p>\n

[53] Id. at 532-533.<\/p>\n

[54] \u00a0Id. at 534.<\/p>\n

[55] Id. at 534.<\/p>\n

[56] Id. at 534.<\/p>\n

[57] Id. at 534.<\/p>\n

[58] Id. at 535.<\/p>\n

[59] Id. at 535.<\/p>\n

[60] Id. at 540.<\/p>\n

[61] Id. at 543.<\/p>\n

[62] Id. at 543-544.<\/p>\n

[63] Id. at 538.<\/p>\n

[64] Lamb\u2019s Chapel v. Center Moriches Union School District, 508 U.S. 384, 398 (1993)(Scalia, J., concurring).<\/p>\n

[65] Kennedy v. Bremerton School District, 597 U.S. 507, 546 (2022).<\/p>\n

[66] Drummond ex rel. State of Okla. v. Okla. Statewide Virtual Charter Sch. Bd., 2024 OK 53.<\/p>\n

[67] Id. \u00b64.<\/p>\n

[68] Id. \u00b63.<\/p>\n

[69] Id. \u00b63.<\/p>\n

[70] Id. \u00b64.<\/p>\n

[71] Who are the patron saints of the internet?, \u00a0University of Portland (last visited ), https:\/\/www.up.edu\/garaventa\/did-you-know\/internet-patron-saints.html#:~:text=John Paul II named St,a model for early universities.<\/p>\n

[72] Drummond ex rel. State of Okla. v. Okla. Statewide Virtual Charter Sch. Bd., 2024 OK 53, \u00b65.<\/p>\n

[73] Id. \u00b68.<\/p>\n

[74] Id. \u00b68.<\/p>\n

[75] Okla. Const. art. 2, \u00a7 5.<\/p>\n

[76] Drummond ex rel. State of Okla. v. Okla. Statewide Virtual Charter Sch. Bd., 2024 OK 53, \u00b640._<\/p>\n

[77] Id. \u00b640.<\/p>\n

[78] Id. \u00b642.<\/p>\n

[79] Id. \u00b643.<\/p>\n

[80] Id. \u00b611.<\/p>\n

[81] Verified Complaint & Demand for Jury Trial at 11, Loe et al v. Walz et al, 0:23-CV-01527, No. 1 (D. Minn. May 24, 2023).<\/p>\n

[82] Id. at 1.<\/p>\n

[83] Id. at 1-2.<\/p>\n

[84] Id. at 41.<\/p>\n

[85] Id. at 57.<\/p>\n

[86] Carson v. Makin, 596 U.S. 767 (2022); Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017).<\/p>\n

[87] Carson, 596 U.S. 767, 779-780 (2022).<\/p>\n

[88] Antonin Scalia, QuoteFancy, (last visited ), https:\/\/quotefancy.com\/quote\/1401996\/Antonin-Scalia-As-long-as-judges-tinker-with-the-Constitution-to-do-what-the-people-want.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Public Schools and a Conflicting Trinity of Rights Brian Boggs, Ph.D., J.D., is an Assistant Professor of Policy and Educational Leadership at the University of Michigan-Dearborn. He\u00a0has written extensively on educational organizational complexity, specifically as it affects urban schools, policy, and the intersectionality of law and education. His most recent book is\u00a0In the Shadow … <\/p>\n

The Public Schools and a Conflicting Trinity of Rights<\/a><\/p>\n","protected":false},"author":2165,"featured_media":834,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","footnotes":""},"categories":[1],"tags":[],"class_list":{"0":"post-824","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-the-quadriga","8":"entry"},"acf":[],"_links":{"self":[{"href":"https:\/\/mitchellhamline.edu\/law-journal\/wp-json\/wp\/v2\/posts\/824","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mitchellhamline.edu\/law-journal\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mitchellhamline.edu\/law-journal\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mitchellhamline.edu\/law-journal\/wp-json\/wp\/v2\/users\/2165"}],"replies":[{"embeddable":true,"href":"https:\/\/mitchellhamline.edu\/law-journal\/wp-json\/wp\/v2\/comments?post=824"}],"version-history":[{"count":0,"href":"https:\/\/mitchellhamline.edu\/law-journal\/wp-json\/wp\/v2\/posts\/824\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/mitchellhamline.edu\/law-journal\/wp-json\/wp\/v2\/media\/834"}],"wp:attachment":[{"href":"https:\/\/mitchellhamline.edu\/law-journal\/wp-json\/wp\/v2\/media?parent=824"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mitchellhamline.edu\/law-journal\/wp-json\/wp\/v2\/categories?post=824"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mitchellhamline.edu\/law-journal\/wp-json\/wp\/v2\/tags?post=824"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}