Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, February 15, 2023

Garnett & Garnett on Religious Charter Schools in Oklahoma

Along with Prof. Nicole Stelle Garnett (Notre Dame), I have a short piece up at the First Things website, discussing the recent application of a Catholic program for status as a charter school in Oklahoma.  Big doings are afoot!  Here's a bit:

The premises of St. Isidore’s application are clear and straightforward. The First Amendment to the Constitution guarantees the “free exercise” of religion and so prohibits anti-religious discrimination by governments. As Chief Justice John Roberts put it in last summer’s Carson v. Makin decision, “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” Accordingly, the justices ruled, it was unconstitutional for Maine to exclude “sectarian” schools from a program that helped pay the private school tuition of kids who live in rural areas without government-run schools. By the same token, the Oklahoma attorney general’s letter correctly reasons, a state may not open up a charter school program—one that permits private entities to accredit and operate a wide variety of schools—but exclude otherwise qualified schools simply because of their religious character or affiliation. 

Note that St. Isidore’s argument is not that secular, civil governments in the United States may or should operate religious enterprises. After all, the First Amendment also protects religious freedom by outlawing religious establishments. Under our Constitution, religious and political institutions and authorities are distinct. They may and often do cooperate, to be sure: Governments have long funded religious agencies’ healthcare and social welfare services, asylum resettlement and anti-human trafficking efforts, and schooling and research. What our “separation” of church and state means, though, is that secular governments do not decide matters of religious doctrine or interfere with churches’ religious affairs. 

In practice and on the ground, however, charter schools are not government schools. They are publicly funded and regulated (like many religious schools), but their appeal has long been precisely that they enjoy meaningful independence and flexibility and are generally approved and run by private operators. They are not, in legal terminology, really “state actors.” And so the conclusion follows neatly from Carson: Once a state decides to engage and cooperate with non-governmental actors to educate its residents, it cannot single out for exclusion actors whose motives or methods are “religious.”

https://mirrorofjustice.blogs.com/mirrorofjustice/2023/02/garnett-garnett-on-religious-charter-schools-in-oklahoma.html

Garnett, Rick | Permalink

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