The United States Could Commit Itself to Strengthening Our Public School System. Instead, We're Shattering It.

The Supreme Court looks ready to sacrifice public education to a twisted notion of religious liberty.

May 04, 2025

The Supreme Court heard a case last week that has the potential to not only demolish the separation of church and state but shatter the United States’ public education system.

The issue in Oklahoma Statewide Charter School Board v. Drummond is whether a state with a charter school program must allow religious organizations to operate charter schools. A charter school is a publicly-funded educational institution run by private contractors that operates independent of local public-school administration. Some may find it odd the government would hire private contractors to operate schools, but charter school advocates would point out the government hires private contractors to complete many government tasks, so perhaps it isn’t so strange the government would contract with a private company to deliver educational services.

Despite their independence, charter schools must still meet certain state requirements, such as complying with basic curricular and testing standards, accommodating students with learning disabilities, and admitting any student who applies. Yet the government grants charter schools significant latitude when it comes to how they deliver their educational services. For example, some charter schools emphasize group learning while others are focused on independent learning. Some place an emphasis on STEM programs, art academies, environmental studies, physical activities, classical education, or language immersion. Others tout small class sizes, are entirely virtual, or structure the school day in unique ways. Charter school advocates point to this variation as a selling point, since it gives parents and students more options beyond their standard one-size-fits-all local public school, which parents and students may find unsatisfactory.

The key point, though, is that despite their independence, charter schools still fall under the public-school umbrella, since they receive public funds, are tasked with fulfilling a public objective, and must follow certain public requirements. When a student enrolls in a charter school, public money is diverted from the public school to the charter school, typically on a per-student basis. That public money is taxpayer money.

Oklahoma, like 45 other states and the District of Columbia, has a charter school program. A private Catholic organization sponsored by the Roman Catholic Archdiocese of Oklahoma City and the Roman Catholic Diocese of Tulsa applied to operate what they hoped would become the nation’s first publicly-funded religious school. Oklahoma’s charter school board approved the application, but the Oklahoma State Supreme Court overturned that decision, ruling that the First Amendment did not allow the state to use taxpayer money to fund a religious educational institution.

This case is the definition of a no-brainer. By authorizing the creation of a publicly-funded religious school, the state of Oklahoma basically passed a law respecting an establishment of religion. The First Amendment prohibits the state from passing a “law respecting an establishment of religion.” The Oklahoma Supreme Court was right to reject the Catholic organization’s application. Yet, stunningly, it looks like there are at least four justices on the Supreme Court who disagree (Thomas, Alito, Gorsuch, and Kavanaugh) and another who is on the fence but can’t be trusted to get it right (Roberts.) (Justice Barrett recused herself from the case.)

The conservative argument is that once a state sets up a system to disburse state funds or award contracts to private actors, it must make those funds available to all private actors who seek those funds, including private religious actors. To do otherwise would be to discriminate against someone because of their religion. Fair enough: Someone shouldn’t be denied a government contract because they’re Catholic or Mormon or Muslim or (let’s just push this really far) a Satanist. If the government needs to hire someone to clear their parking lot of snow, it shouldn’t matter if the applicant worships Satan or claims they have been called by Satan to plow snow so long as they meet the necessary criteria and (if the position is competitive) put forth the best bid.

But we’re not talking about snow removal here. We’re talking about an educational organization that wants public money to provide religious instruction to kids as part of its regular school day. There’s no way that should be permissible. Public money should not be used for religious indoctrination.

The First Amendment addresses religion for a very good reason: Religion is a political lightning rod. As difficult as it is for the political sphere to settle debates over public policy, it is impossible for the political sphere in a religiously diverse republic to resolve religious disputes that hinge on assertions of faith rather than public reason. When these religious disputes did enter the political sphere in our pre-Enlightenment past, they often resulted in bloodshed. The fact is that religious matters—the nature of God, what happens to us when we die, how we ought to treat those who either don’t believe in God or hold incorrect beliefs, what is ultimately right and true and what we must do to serve God and God’s eternal truth—are far too momentous and divisive to become the subject of politics, let alone a public-school curriculum. I don’t want my taxpayer dollars spent teaching kids lessons I find highly objectionable about what people need to do to stay in God’s good graces, and I assume people who disagree with me on matters of faith would feel the same way. We should not want these religious disputes to escalate into political conflicts. The First Amendment is there to keep that from happening.

The Court’s conservatives would argue, however, that a private religious group is no different than any other private group. That’s false on its face: Private religious groups are different from other private groups in that the former are religious and the latter are not. That’s a constitutionally significant distinction.

The Court’s conservatives would then cite that differential classification as proof the state discriminates against religion in general by preventing all religious groups from operating charter schools. But that’s the point. Rather than run the risk of either favoring or discriminating against a religious group by entangling religion with public authority, the First Amendment ensures that no church gains a foothold in the state. (In return, the state stays out of the affairs of churches.)

The Court’s conservatives would counter by arguing that instead means the public space favors the secular worldview over the religious worldview. That’s an argument conservatives like to fall back on, but it’s beyond time we call it out, as conservatives are getting way more mileage out of that argument than they’re entitled to. Beyond a vague acknowledgement of a divine power, the notion of a “religious worldview” is not a meaningfully distinct concept. It’s far too broad. There is no unified group of religious people with a common worldview. When a conservative claims the secular state is discriminating against “the religious worldview” they really mean the state is discriminating against a religious worldview they sympathize with. Excluded from that claim are religious people who hold different perspectives. Consequently, in First Amendment arguments, conservatives can’t pit the secular worldview against a conceptually-vague “religious worldview.” I would contend the secular public space is instead a theologically-neutral space, one any citizen can enter without feeling a specific theological claim is being imposed on them.

Still, the Court’s conservatives would argue there’s nothing wrong with offering families a public religious school as an option. Someone who does not believe what that religious school teaches can keep their child enrolled in the standard public school or send him or her to a different charter school. No one is forcing them to enroll their child in a religious school.

But this case isn’t strictly about religious charter school organizations, parents, and students. It also involves taxpayers. Remember, public schools aren’t funded by parents paying tuition but instead, in most cases, by taxes levied on property owners, many of whom do not have kids in school. Taxpayers who object to funding a religious educational institution certainly shouldn’t be required to support that school’s educational mission.

My unease with this case stretches beyond First Amendment concerns, however. By allowing states to grant charter school contracts to religious organizations—which already teach 77% of all private school students in the United States—the Supreme Court could devastate the United States’ public school system. The Court’s members may insist they’re just looking at the constitutionality of a law and don’t take such practical concerns into account when making their decisions. In this case, though, nefariously, I think they actually are.

The truth is that families in states with charter schools do not have unlimited options when it comes to picking charter schools. They may actually have very few options. Given the finite number of students in a school district, only a certain number of charter schools can operate at one time. (A school district with 400 high school students not only couldn’t open 400 charter schools, but it probably couldn’t even open 10 and hope to have enough enrollment in each of them for all of them to continue operating.) There’s also the possibility that even if a handful of charter schools open with distinct programming, parents and students may find none of them are viable options. Charter school advocates promise choice, but the choices are often limited.

That may suggest public schools will be fine, as a charter school’s narrower appeal may work against it. I fear the opposite, though. Imagine a well-funded private religious organization receives a contract from a state to open a charter school and then uses its substantial resources to provide a state-of-the-art educational experience: Not only excellent academics with a wide range of classes, but excellent athletics, music, and art programming. I won’t knock it for doing that; I wish every kid could have that experience. Not only does the religious school draw a large number of students who agree with its theological message, but it also draws students who want to take advantage of its curricular and extra-curricular opportunities. In short order, their friends follow them to the school, too.

In the meantime, the public school begins to fall on hard times. It never had the financial resources to offer the full range of programming provided by the charter school. With tight budgets, it can’t offer competitive salaries to teachers or improve its facilities. Nearly every student interested in sports or fine arts has transferred to the charter school, leaving its extra-curricular activities a shell of themselves. Course offerings begin to get pared back. Even students who don’t want to attend the charter school because they disagree with its religious worldview conclude the charter school is their only real option because the public school no longer offers college prep courses/can’t field a football team/doesn’t have enough kids to stage a musical/eliminated its coding program. Even though the subject matter violates their deeply held beliefs, they’re required to take classes that proselytize the school’s theology alongside true believers and those the charter school has converted. When students object to the school’s religious lessons, administrators tell them that if it really bothers them, they should just return to their public school, yet the public school only remains an option in theory, not in practice.

If someone wanted to gut the American public school system and replace it with a system of religious academies, that’s how they’d do it. I fear the Supreme Court’s conservative majority—nearly all of whom are graduates of private religious schools; who all seem to gaze upon America’s public school system with a sense of either pity or revulsion; who should know the idea of a publicly-funded religious school runs counter to America’s constitutional tradition—are more than happy to aid and abet religious school activists in their mission.

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A similar story is playing out with school vouchers. A voucher is a publicly-guaranteed cash grant (typically equivalent to the amount of money spent by the state on a per-pupil basis) that a student can use to pay for the cost of tuition at a private school, including religious private schools. Voucher advocates often argue vouchers don’t directly fund religious education since vouchers are given to parents to use as they see fit, but that’s a pretty shady assertion. It’s like arguing a suitcase full of money on a non-stop flight from New York to Los Angeles somehow changes in nature if it is instead put on a plane traveling from NYC to LA by way of Chicago O’Hare: The effect is the same so long as that suitcase ends up in the City of Angels. Looked at that way, one could argue vouchers are a money laundering scheme concocted to turn public money into private money that can be spent at religious institutions.

Conservatives have sold the public on vouchers by hyping the benefits of school choice. But as ProPublica (which has reported extensively on the subject) has found, vouchers mostly transfer money from the financially squeezed to the financially well-off, destabilizing the nation’s public school system in the process:

The risks of universal vouchers are quickly coming to light. An initiative that was promoted for years as a civil rights cause — helping poor kids in troubled schools — is threatening to become a nationwide money grab. Many private schools are raising tuition rates to take advantage of the new funding, and new schools are being founded to capitalize on it. With private schools urging all their students’ families to apply, the money is flowing mostly to parents who are already able to afford tuition and to kids who are already enrolled in private schools. When vouchers do draw students away from public districts, they threaten to exacerbate declining enrollment, forcing underpopulated schools to close. More immediately, the cost of the programs is soaring, putting pressure on public school finances even as private schools prosper. In Arizona, voucher expenditures are hundreds of millions of dollars more than predicted, leaving an enormous shortfall in the state budget. States that provide funds to families for homeschooling or education-related expenses are contending with reports that the money is being used to cover such unusual purchases as kayaks, video game consoles and horseback-riding lessons.

To elaborate a bit more on that, roughly 75% of all voucher money currently goes to families who were previously paying tuition at a private school. Maybe you think that’s a good thing, as that saves those families some money, but remember, if those families really wanted to save money, they could just send their kids to their local public school, which wouldn’t cost them a dime. Additionally, don’t think for a second that a state that suddenly finds itself crushed beneath the costs attendant to funding a voucher program will trim the value of their vouchers. Instead, as public-school enrollment declines, they’ll probably strip it out of public-school funding instead. That can leave local school administrators in a pinch, particularly if the decline in enrollment is too small to justify faculty cuts even as the loss of funding leaves them with no other choice.

Conservatives often argue vouchers and charter schools are necessary to save kids from a failing public school system. But if that’s the problem, there is something else we could be doing: Committing ourselves as a nation to the creation of an A+ public education system. Given the American tradition of local educational control, that would seem to be a goal a supermajority of Americans could rally behind. Most Americans consider it a moral obligation to support the public education system, as doing so is a way to pay the system back for supporting them when they were students. More importantly, though, we all know that getting a good education is a predicate to effective democratic self-governance and to fulfilling the American Dream. If that’s something we believe every American is entitled to pursue, then it’s our responsibility as a society to supply all our children no matter their religion, race, gender, ability, etc., with an excellent public education. When we do that, not only do we provide future generations with the skills they need to thrive as individuals, but we also prepare them to participate in public affairs as conscientious citizens and collectively reap the benefits of an educated populace. Generations of Americans have considered this a noble civic undertaking.

Yet many conservatives today believe the only way to save the public education system they’ve spent decades demonizing is to destroy it. They’ve added fuel to that fire by claiming the public school system—whose greatest virtue is its egalitarianism—is a repulsive collectivist undertaking and the site of liberal indoctrination. Even worse, they’ve rallied to their side those who believe the main problem with our public school system is its failure to indoctrinate children in conservative Christian theology. And now, the Supreme Court’s conservative majority is on the verge of gifting those who would raze our public school system a wrecking ball. If they do side with the charter school advocates, their decision would serve as even more proof that this Court has gone rogue.

Our public school system is far from perfect, but rather than let it rot, we are called as Americans to try to perfect it. To do otherwise is a betrayal of this nation’s civic spirit and its core values. The current Court doesn’t understand that. This nation and its children deserve better.