St Isidore of Vanishing Civil Rights

Weeks before the Supreme Court elevated religious free exercise over the Establishment Clause by ruling that Maine’s town tuitioning program could not bar private schools from putting taxpayer money to religious uses, attorney and leading education policy scholar Kevin Welner made a prediction: such an outcome in Carson v. Makin, he argued, would act as an invitation for church-run charter schools.

Sure enough, Oklahoma’s virtual charter board (with two new right-wing appointees) voted in June to grant a charter for St Isidore of Seville Catholic Virtual School (SISCVS), which will be operated by the archdiocese of Oklahoma City and the diocese of Tulsa. This month the board approved the school’s contract, bringing it one step closer to furthering the “evangelizing mission of the Church” on Oklahoma taxpayers’ dime. But the board’s chairman refused to sign the contract — demonstrating the high level of contention surrounding SISCVS within the conservative Bible Belt state.

A religious charter school runs afoul of both the Oklahoma Constitution and the Oklahoma Charter Schools Act — to say nothing of the US Constitution’s promise of church/state separation. Back in 2016, nearly 60% of Oklahomans voted against a constitutional amendment that would have allowed public money to be used for religious purposes. While Oklahoma’s Republican governor Kevin Stitt has been among SISCVS’s most avid cheerleaders, the state’s attorney general, Gentner Drummond (also a Republican), has vehemently opposed the school, asserting that “Christian nationalism is the movement that is giving oxygen to this attempt to eviscerate the Establishment Clause.”

In the SISCVS charter application, the archdiocese of Oklahoma City states that the school “will operate in harmony with faith and morals, including sexual morality, as taught and understood by the Magisterium of the Catholic Church.” Instruction will assist parents in “forming and cultivating” children who believe, among other things, “that God created persons male and female,” and that if we “reject God’s invitation,” we will “end up in hell.”

In response to Drummond’s charge that the school appears intent on violating the 1964 Civil Rights Act, the archdiocese insists it is “committed to providing a school environment that is free from unlawful discrimination, harassment, and retaliation” (emphasis added). But, emboldened by Supreme Court rulings subordinating antidiscrimination laws to religious free exercise, they suggest that these practices are lawful when they’re required by faith.

In July, a nonpartisan nonprofit and nine Oklahoma residents, including Christian faith leaders and parents, filed a lawsuit in state court to stop the school from opening. Represented by Americans United for Separation of Church and State, the ACLU, the Education Law Center, and the Freedom From Religion Foundation, the plaintiffs’ arguments include that the charter is unlawful because it will discriminate against kids and families based on religion, LGBTQ identity, disability status, and other protected characteristics, and indoctrinate students in Catholic religious dogma. As Rachel Laser, president and CEO of Americans United, told Jacobin, the case is about standing up to “religious extremists who want to impose their beliefs on other people’s children using the power and imprimatur of the state.”

Last week, AG Drummond filed his own lawsuit against the virtual charter board members, arguing that,“not only is this an irreparable violation of our individual religious liberty, but it is an unthinkable waste of our tax dollars.”

The fate of religious charter schools, Kevin Welner explained to Jacobin, will depend on a number of interrelated legal questions: Are charters “state actors,” meaning that their students have constitutional rights while in school? (This SCOTUS recently declined to review the state action question with regard to a North Carolina charter school.) Relatedly, are charters public or private, and must they remain secular? If charters can be granted to religious institutions, can those institutions engage in faith-based discrimination?

How courts answer these questions will have serious implications for K-12 education in the United States. As Welner noted following Carson v. Makin:

If courts side with a church-run charter school, finding that state attempts to restrict religiously infused teachings and practices at the school are an infringement on the church’s free-exercise rights, then the circle is complete: Charter school laws have become voucher laws.

Privatization Undermines Democracy

The prospect of a state-sponsored Sunday school is alarming. And Welner, who directs the National Education Policy Center at the University of Colorado, Boulder, told Jacobin he expects there are already parallel efforts underway in other states.

But church-run charter schools are just one front in the war against secular public education. Private-school vouchers and education savings accounts allow public education dollars to flow to private schools that evangelize, discriminate, and create hostile environments for kids whose identities don’t align to a narrow definition of Christian morality. And various networks and right-wing institutions manage “faith-friendly” classical or “back-to-basics” charter schools that market themselves to conservative white families, cloaking their Christian nationalist curriculum in an oh-so-thin veil of secularity.

The Network for Public Education (NPE) recently published an extensive investigation into this rapidly growing branch of the charter sector, which is disproportionately operated by for-profit entities. NPE’s executive director and the report’s coauthor, Carol Burris, told Jacobin: “We already have quasi-religious charter schools. . . . If there once was a line in the sand, clearly winds from the Right have blown it away.”

Arguably though, there never was such a clear line defining the publicness of charter schools, or protecting our kids from discrimination in an increasingly privatized education landscape. Writing about Carson v. Makin, law and political economy scholar Kate Redburn explains how the libertarian and Christian wings of the conservative legal movement

have orchestrated a two-step process to shift the democratic articulation of public values and the allocation of public resources to private religious power. The first step . . . is to privatize public goods and services. The second step is to eliminate the distinction between religious and secular in the newly empowered private sphere.

When educational institutions are publicly operated, it’s possible for states to attach strings to funding, ensuring that schools are meeting the needs of all students. But when governments turn public education dollars over to private hands, they lose their ability to regulate those dollars’ use for the common good.

In the revised application for SISCVS, the archdiocese of Oklahoma City argues that, regardless of their “public” label, “Oklahoma charter schools are not operated in any meaningful way by the state but are subject only to broad oversight, with private — even for-profit — organizations given control over their day-to-day operations.” In other words: How, in this Wild West of unregulated private operators, can the state expect to safeguard the secularity of its charter schools?

Public Schools Are the Only Public Schools

School-choice Democrats like Cory Booker, Barack Obama, and Arne Duncan mastered the contortionist art of pitching school privatization — which strips families of their right to democratically elected school boards — as “the civil rights issue of our time.” Publicly funded, privately managed charter schools, they argued, would increase opportunities for marginalized students, leveling an unfair playing field.

It was never true, and decades of research have shown us that charter schools don’t outperform their publicly managed counterparts — but they do drain funding from neighborhood schools attended by poor kids. Nevertheless, a sheen of “equity” and “opportunity” sparkled around bipartisan charter school initiatives in the Bush and Obama days of education reform.

But in the Trump era, Besty DeVos, a privatizer laser-focused on state-funded Christian education, made the school-choice brand feel icky to its D-column champions. While DeVos treated the federal Charter Schools Program (CSP) as “a slush fund for large charter chains,” Carol Burris and her team launched a series of reports documenting the rampant waste, fraud, and abuse the program was enabling. By the 2020 presidential primary it was clear that Democrats were looking to distance themselves from the charter movement, taking their cues from organizations like the National Association for the Advancement of Colored People (NAACP), which called for a moratorium on new charters in 2016.

Biden’s education department attempted to make good on a campaign promise to eliminate federal funding for for-profit charter schools (thanks in no small part to the work of Burris and NPE, who marshaled a grassroots network of public education advocates willing to take on the charter sector’s powerful Washington guardians). And while the department’s new CSP rules don’t go quite that far, they do make it much harder for profit seekers to cash in on the program. They also increase transparency and accountability for grantees, and set up requirements aimed at combating resegregation and federally financed “white-flight charters.” In Congress, the 2023 House Appropriations Bill supported these tighter rules and reduced CSP funding by $40 million, seemingly in recognition that the federal government caused grave harm by promoting reckless charter expansion.

But the CSP overhaul drew pushback from Democrats like Colorado governor Jared Polis, a libertarian with ties to Democrats for Education Reform — the hedge fund–powered PAC dedicated to grooming pro-charter legislators. Burris explained to Jacobin that while most of the party has distanced itself from the charter movement, “there are very few indications that Democrats are ready to stand up to the charter lobby.” Illustrating this, she points to the Democratic-controlled Michigan legislature, which presides over a state with “one of the most corrupt for-profit charter sectors in the nation.”

The big picture is that Democrats have changed their tune on charters, and that’s a good thing. Now they need to back up their pro–public school rhetoric with stronger efforts to halt charter growth, as well as reforms shoring up the publicness of existing charters (since charter schools are a statutory creation, state legislatures have the power to redefine them). And remaining Democratic charter boosters like Jared Polis and Elena Parent? They need to get on board and recognize that the bipartisan “equity and opportunity” charter movement was always a trojan horse for school vouchers and rightwing ideology.

Fighting the rising tide of illiberalism means fighting all the forms of privatization that eat away at democracy. We simply cannot have it both ways.