Courting the Future

Four years from now, will the United States more closely resemble Europe and Canada?

When asked this question, one might reasonably presume that what is at issue is elevated rates of taxation, the provision of universal healthcare under a single payer system, or younger political executives. But what if the U.S. was to become more like much of Europe and Canada with respect to the manner in which private religious schools are funded? Though he doesn’t frame the issue in such terms, the Thomas B. Fordham Institute’s Michael J. Petrilli tees up the question in a thought provoking article titled, “For better or worse, religiously-affiliated charter schools are on their way.”

The path from here to there begins with the U.S. Supreme Court’s 2017 decision in Trinity Lutheran Church of Columbia, Inc. v. Comer. In that 7-2 ruling, the Court found that the exclusion of a private religious preschool from participation in a state-funded playground resurfacing grant program ran afoul of the U.S. Constitution’s Free Exercise Clause. In essence, the Court held that a state could not discriminate against a religious entity by sheer dint of its religious status.

The next step down the road occurred earlier this year with the Supreme Court’s 5-4 decision in Espinoza v. Montana Department of Revenue. There, the Court found it impermissible for a private religious school to be excluded from a state tax-credit scholarship program simply owing to a its religious nature. In the majority opinion he authored, Chief Justice John Roberts neatly summarized the matter, as follows: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

The Court’s ruling in Espinoza raised an immediate question: Is there a legal distinction to be drawn between being religious, and doing religious? In Trinity Lutheran, the Court found that a state can’t be barred from receiving a public benefit on the basis of religious status. However, the benefit in question consisted of a crumb-rubber playground surface designed to prevent scraped knees, not to teach religion. In Espinoza, the issue became murkier. Now, religious schools were deemed eligible to receive a state benefit that not only fulfills the secular purpose of teaching children literacy, numeracy, and critical thinking skills, but could be used to teach and model religious knowledge, beliefs, values, and practices. Could courts rightfully withhold such benefits on grounds of religious use?

As if to furnish a preemptive answer, Associate Justice Neil Gorsuch offered the following in his concurrence to the Court’s opinion in Espinoza:

“The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.

“The First Amendment protects religious uses and actions for good reason. What point is it to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands, attending Friday prayers, living his daily life in harmony with the teaching of his faith, and educating his children in its ways? What does it mean to tell an Orthodox Jew that she may have her religion but may be targeted for observing her religious calendar? Often, governments lack effective ways to control what lies in a person’s heart or mind. But they can bring to bear enormous power over what people say and do. The right to be religious without the right to do religious things would hardly amount to a right at all.”

Which brings us face to face with the question raised in Mr. Petrilli’s article: Can a state prohibit the provision of funding to a religious charter school?  Mr. Petrilli directs the question to the charter school community in which the Thomas B. Fordham Institute’s sister organization, the Fordham Foundation is an active participant. It comes in the form of an invitation to leaders of the charter school movement to think carefully about the risks and benefits accompanying a potential expansion of the terrain to include religious charter schools.

Private school leaders would do equally well to contemplate the matter. The COVID-19 pandemic has delivered both an exogenous shock and existential threat to the enterprise. If ever there was a time when private school opinion leaders, decision makers, and stakeholders should be open to some bold re-imagining of near-to-intermediate-term possibilities, it is now. Given the current composition of the U.S. Supreme Court, it is by no means inconceivable that legal barriers to the existence of religious charter school could be swept aside. If that happens, doors will open for the fashioning of schools that could look very much like state funded private schools in Europe, Canada, and Australia.

Crossing that threshold does not come without cost, and the attendant trade-offs, including the possibility of adherence to state-established curricular frameworks and assessments, teacher certification requirements, and unionization – may be non-starters for most existing private schools. Yet, when survival is at-issue, the risk-reward curve may bend in the direction of the once-unthinkable. And some may regard movement toward the “European Model” as a bold step forward, rather than a forced hand. In any event, forward-looking private school leaders would do well to begin considering the myriad ways in which religious charter schools would change the landscape of American private education. And there’s no time like the present.

Ron Reynolds

Note: The commentary and views expressed in this article are those of the author, and do not necessary represent those of the California Association of Private School Organizations, or its members.


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