An Enormous Test for SCOTUS Comes Via a Public Education Case

The Supreme Court is currently hearing a case out of Oklahoma regarding charter schools.

The issue is if a religious entity can start a charter school, complete with religious teaching based on freedom of speech. On the face it, the quick answer would appear to be no (separation of church and state). But the Catholic Church is arguing that religious groups should not be left out of access to public dollars. Given that they pay no taxes already, I find that argument ludicrous. 

Here's the background on the case from The Seattle Times.

On Wednesday, the U.S. Supreme Court will hear from the Archdiocese of Oklahoma City and the Diocese of Tulsa, which are arguing that they should be allowed to open the nation’s first religious charter school — funded with public money and embracing an explicitly religious curriculum. This is big. It challenges not only the traditional separation of church and state, but also laws requiring that charter schools be secular.

Already, public money has gone to support religious schools through voucher programs in other states, so that is not the central issue here.

The high court has already signaled its sympathies. Three times in the past eight years — in cases from Maine, Montana and Missouri — a majority of justices sided with parents and religious institutions challenging states that barred them from receiving education funds available to secular recipients.

But putting aside the issue in play, here is the REAL story. 

This comes from the Virginian-Pilot's editorial page. Basically, they explain how religious schools have tried to be funded publicly since the early 1800s but they gave up. 

Not only did none of the religious schools win a lawsuit arguing that the denial of funding violated their constitutional right to free exercise of religion, but none even brought suit. And similar episodes unfolded around the country.

To many people, this two-centuries-old snapshot may seem quaint or even irrelevant. But to the Supreme Court of the United States, it is everything. It’s everything because the current court has deemed history and tradition to be central to the interpretation of our constitutional rights. And in a case to be argued on Wednesday, this history could determine the outcome of a major dispute that will determine whether billions of taxpayer dollars will be poured into schools that teach their preferred religious doctrines.

Here's one reason:

A ruling for religious schools would disrupt the public education system as we know it — to say nothing of historic norms of church-state separation.

Here's the OTHER big reason this ruling will matter:

Given the court’s pro-religion majority, some have already portrayed the case as a likely moment of conservative triumph. Maybe so. But the case will also be an originalist moment of truth. That is because the most eye-opening aspect of the religious charter schools’ legal argument is its utter incompatibility with the originalist approach to constitutional interpretation that the court’s conservatives have applied in a slew of recent cases.

The only conclusion that makes historical sense is that founding-era religious leaders believed that they possessed a robust right to free exercise — but even they understood that it did not extend to the kind of funding claim now advanced in Drummond.

The big picture:

In the end, we cannot predict whether the court’s conservative justices will be faithful to history and tradition in this case. Ultimately, perhaps those justices will care more about advancing a conservative movement goal than the neutral application of interpretive theory.

What we do know is this: If the court ignores a clear historical record merely because it is inconvenient for a political cause favored by its conservative members, it will move one fateful step closer to losing its public legitimacy. 

And it will do so at a crucial moment when the court’s legitimacy and independence is more important than ever before.

The Seattle Times has weighed in on how this could be a problem for Washington State charter schools. 

So far, courts in Washington state have rightly maintained that charters are indeed public — free, open to all kids, nonsectarian and overseen, ultimately, by the state. Attorney General Nick Brown has signed on to a brief, along with his counterparts in 16 other states, affirming this interpretation. But if the justices in Washington, D.C., rule otherwise, they could undermine the entire foundation upon which charters have relied, including the 17 operating here, and simultaneously make way for a tsunami of lawsuits.

Well, I get their point but charter schools in Washington State are already in trouble. They never reached their allowed number in the law and now the law has expired on that point so no new ones can come on-board. 

There could be several reasons for the lack of interest in charters in Washington State, including a fairly strict law that saw several big charter operators like KIPP and Rocketship not even try. 

If the other Washington State charter schools were very popular, I think others would have opened. I just don't think they have shown themselves to be what most parents want.