Educational freedom has been controversial for a very long time—by my estimate, the modern educational freedom movement started in 399 BC, when a private tutor was forced to drink hemlock by the equivalent of the local board of education for failing to acknowledge the god of the city and a rather vague charge of “corrupting the youth.”
How families choose to educate their children is still the locus of enormously controversial debates. But we should favor freedom in education just as much as we do in anything else, precisely because each child is uniquely known by just one family, who are in the best position to know what educational opportunities would best make that child thrive and have a richly fulfilling life.
Those outside the family unit may have their own opinions that they would like to substitute for the judgment of the family, and they may use modern-day alternatives to hemlock to get their way: zoning laws, teacher certification, multiple layers of required administrative staff, mandates to teach to state-mandated tests. When educational bureaucrats want graduates who all conform to the conventions of non-conformity, non-conformists to those conventions are often thought of as somehow disruptive to the educational project.
It is those creative minorities—the ones who just don’t fit in a government-sponsored schooling program—whose freedoms need to be protected and on whose behalf we should all stand.
On April 30, the US Supreme Court is scheduled to hear oral arguments on St. Isidore of Seville Catholic Virtual School v. Drummond, which brings to the court’s focus one of those unfair barriers that prevent equal access to the public square. It is an Oklahoma case, and the Court will be asked to rule on whether states can ban faith-based charter schools or whether such restrictions violate the First Amendment’s right to the free exercise of religion. This is a noteworthy case and will be of great interest to the audience of 6,500 charter schools that now educate some 2.5 million students.
The families backing St. Isidore of Seville Catholic Virtual School come to the court with a strong tailwind of three Supreme Court cases that arrived at approximately three-year intervals, each remarkably authored by Chief Justice Roberts and joined by Justice Brett Kavanaugh: Trinity Lutheran Church of Columbia, Inc. v. Comer, Espinoza v. Montana Department of Revenue, andCarson v. Makin from Maine. Each of these cases expands educational freedom by clarifying to its critics that a state government may not condition eligibility for an otherwise available public benefit based on a requirement that a private school renounce its religious convictions and identity.
First, in Trinity Lutheran, the Supreme Court held that where a “policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character,” that policy “imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.” In that case, Missouri deemed a church ineligible for a competitive playground resurfacing grant based on a state constitutional provision prohibiting aid to religious institutions. What exactly was the benefit that Trinity Lutheran was ineligible for? The state was shredding tires headed to the landfill and found a way to dispose of them cheaply by turning them into soft and safe playground surfaces for children to play on. Trinity Lutheran’s playground was—get your Band-Aids ready—gravel.
However, the church had “a right to participate in a government benefit program without having to disavow its religious character.” And under the strict scrutiny framework, Missouri’s interest in avoiding “religious establishment concerns” simply couldn’t “qualify as compelling.”
Second, Espinoza v. Montana Department of Revenue concerned a modest tax credit to individuals and businesses who donate to private, nonprofit scholarship organizations, usually attached to a specific school. The Supreme Court reversed a Montana decision based on a state constitutional provision that “single[d] out schools” for exclusion from funding “based on their religious character.” The Montana Supreme Court’s decision forced schools to choose either to “divorce [themselves] from any religious control or affiliation” or to remain “[in]eligible for government aid under the Montana Constitution.”
Opponents of faith-based schools will be working overtime with the goal of making courts decide that, on balance, the school in question is an agent of the state.
Drawing upon the “straightforward rule” from Trinity Lutheran, this Court applied strict scrutiny to the State’s discriminatory policy. The State’s asserted “interest in separating church and State more fiercely than the Federal Constitution” failed that test.
The Supreme Court emphasized that Montana’s policy “burdens not only religious schools but also the families whose children attend or hope to attend them.”
Third, in Carson v. Makin, the Supreme Court held that Maine “effectively penalize[d] the free exercise of religion” when it disqualified schools from a generally available scholarship for rural students “solely because of their religious character.” Yet again, a state’s exclusion of religious entities from a public benefit didn’t survive scrutiny because “[a] state’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.” These three cases seem to set up the families of St. Isadore with a three-course meal of religious liberty that would nourish the hopes and dreams for their children’s education.
But like Socrates, we should look in our goblets and ask where the hemlock is. How was it that the Oklahoma Supreme Court reached the opposite conclusion? Could this expansion of religious liberty protections actually create a legal situation the government could exploit to limit educational freedom?
Bear in mind some important facts about St. Isidore of Seville Catholic Charter School: it is incorporated as a nonprofit corporation, not established by the state—it was founded by the Archdiocese of Oklahoma City and the Diocese of Tulsa; it has its own board of directors, none of whom are government officials; it has its own bylaws and certificate of incorporation; all its employees are responsible to the board of directors, they are not public employees; it has its own property and bank accounts. The government does not in any way control the policies or operational decisions of the school, which would defeat the very purpose of charter schools to foster innovative teaching and establish new forms of accountability.
Incredibly, the Oklahoma Supreme Court found that St. Isadore was both a government entity and a state actor, and therefore violated the establishment clause. How did that happen? In Oklahoma, charter schools are privately operated but called “public schools” because they receive taxpayer money. Does that violate the Establishment Clause? Would you like another sip of hemlock? Not so fast: for purposes of the Oklahoma Charter Schools Act, “charter school” means a “public school established by contract”—contractors are not turned into government entities or state actors merely for accepting public funds to perform a public service. The Oklahoma Supreme Court blew it—the US Supreme Court made clear in the 1974 case Jackson v. Metropolitan Edison Company that the term “public” has no constitutional significance because constitutional rights don’t depend on a state affixing self-serving statutory labels designed to expand state power over private organizations.
Under the so-called state action doctrine, a private entity will be treated as a government actor only in the rare circumstances when it is effectively acting as the agent of the state or so entangled with actions traditionally thought to be responsibilities of the state. The exceptions are so rare that we have to go back to a 1946 case, Marsh v. Alabama, where a company-owned town was found to function as a state actor and therefore subject to First Amendment protections afforded to individuals distributing Jehovah’s Witness tracts on the streets. The Founders framed the Constitution to establish, empower, and limit government rather than constrain or limit private actors—and they would not have countenanced a time when private citizens would surrender their liberties in exchange for providing services to the government under a contract.
Is a charter school, privately founded and operated, dependent on willing students to enroll voluntarily, a government entity or a state actor? This will be a factual matter for a court to decide, and I hope that the Supreme Court will give us guidance on the hallmarks of what constitutes state control; opponents of faith-based schools will be working overtime in the halls of state legislatures to increase government control over the operations of a faith-based school with the goal of making courts decide that, on balance, the school in question is an agent of the state. Oklahoma charter schools like St. Isidore are private entities, in this case a joint project of Oklahoma’s two Roman Catholic dioceses, while traditional public schools operated by school districts are clearly government entities. Most charter schools in other states are privately operated and are free from most education regulations in order to foster educational diversity and create the conditions for educational flourishing.
Does the First Amendment require public funding of religious charter schools? Lawyers have mastered the two-word response to all questions: “That depends.”
The key question for charter schools like St. Isadore is whether they are private entities or state actors. To the non-lawyers, who see that charter schools receive government funding to provide education, just like other schools do, the distinction may sound like semantics, the Madison Avenue question “is it a candy or a breath mint?”
But if the answer turns out to be “state actor,” it is neither a candy nor a breath mint. It’s hemlock.
