By Jess Bravin and Matt Barnum
WASHINGTON—Since the first charter school opened 33 years ago in St. Paul, Minn., the movement for independently run but publicly financed and supervised education has exploded, now serving nearly four million students. And every one of the nation’s 8,000 charter schools is nonsectarian, because state and federal law has required it.
That appeared likely to change after Supreme Court arguments Wednesday, where conservative justices suggested it was discriminatory to exclude schools that teach religious doctrine from Oklahoma’s public charter school program. The case, one of the biggest on church and state in a generation, could hinge on the justices’ view of charter schools as private entities seeking public grants rather than extensions of the public school system that provides free education for all children.
“You can’t treat religious people and religious institutions and religious speech as second class in the United States,” said Justice Brett Kavanaugh.
The court’s three liberals saw the mix of government and religion as a recipe for disaster, as state-mandated curricula and nondiscrimination laws were bound to conflict with some sectarian beliefs.
“Religious communities are really different in this country and are often extremely different from secular communities in terms of the education that they think is important for their young people,” said Justice Elena Kagan.
With Justice Amy Coney Barrett recused, an eight-member court heard the case. Among the five conservatives, only Chief Justice John Roberts suggested that recent high court precedent might not require recognition of religious charter schools.
The Oklahoma case is the culmination of a debate that has been brewing for years.
“It’s abundantly clear that the First Amendment protects religious organizations’ right to participate,” John Meiser, the head of a religious liberty clinic at the University of Notre Dame law school, which represents a proposed online Catholic charter school in Oklahoma, said in an interview.
The state’s Republican attorney general, Gentner Drummond, said that argument turns the charter school concept upside down. Defining them as private schools “is exactly the opposite of what the charter school movement has been arguing for the last 30 years. They have fought hard to be considered public schools and have complied with all state public school requirements,” he said.
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