News and Notes: Secularists Getting Schooled

By George Francis Kane

This term the Supreme Court will decide on the validity of the decision by the Oklahoma Statewide Charter School Board to approve a state charter for St. Isidore of Seville, a parochial virtual school. When the court took testimony in this case at the end of April, the majority of the justices seemed to favor the school. In the 2022 case Carson v. Makin the Court ruled that a state voucher program may not exclude religious schools. It is expected to make the same ruling in this case with respect to charter schools.

The heart of the question the Supreme Court must decide is whether approving its charter makes St. Isidore a public or private school. Although Oklahoma law defines charter schools as public schools, St. Isidore is a completely religious operation like all others in the parochial school systems of the Archdiocese of Oklahoma City and the Diocese of Tulsa, which have partnered to create it. Charter schools are required by Oklahoma statute to be non-sectarian, but in its application, the archdiocese declared that it would be a Catholic School and part of the “evangelizing mission of the Church.” Religion will be intrinsic to its instruction in all subjects. St. Isidore also will require religious exemptions to state requirements in employment, student admissions and discipline. Future church schools that apply for state sponsorship as charter schools will surely also demand these exceptions if St. Isidore wins this case.

In Carson, the majority held that Maine’s restriction on its voucher program to exclude religious schools violates the rights of the schools and the parents of the students under the Free Exercise Clause of the First Amendment, by favoring secular schools over religious ones. They are expected to use this same argument to decide this case. I think, however, that this line of reasoning ignores the fact that charter schools are made agents of government by the charter school program, and therefore subject to the same constitutional restrictions that apply to all other public schools.

Compare the public school system to federal prisons. In the operation of those prisons, the United States is prohibited by the Constitution to engage in cruel and unusual punishment, or to deny its prisoners the right to defend themselves within the due process of law. If the government contracts with a private company or foreign government to maintain the prisons in which our criminals are kept, their contractor will then be acting as an agent of the government. As the government’s agent, the operator of the prisons is subject to the same restraints that apply to the government. The government may not subvert these restrictions simply by transferring its functions to non-governmental organizations.

I realize that the Trump administration is using precisely this dodge to ship immigrants to a prison in El Salvador, where they may be tortured or held for life without trial or even being charged with any crime. I cannot believe that any judge would not rule that prima facie the government cannot evade constitutional requirements by contracting out their functions.

The courts have applied this logic to define restrictions on the conduct of teachers in the public school systems. Teachers are entitled to their personal religious beliefs like every other American, but when they are in the classroom they are acting as agents of government. They may not then punish students for their religious beliefs, or require them to participate in religious acts, or exhort students with sermons.

Observers of the Supreme Court predict that they will require the state of Oklahoma to give religious exemptions to St. Isidore to restrictions that the Establishment Clause places on all government agencies in the U.S. Clearly, the government may not grant such an exemption to its own actions, so how could it be that they can bypass those restrictions by hiring a church to run its schools?

When the constitution imposes restrictions on government, those restrictions must apply to all organizations that it contracts with to act as its agent.