After Drummond: What’s Next in the Debate over Religious Charter Schools?

In Oklahoma Statewide Charter School Board v. Drummond, the U.S. Supreme Court took up the question of whether the operation of charter schools by religious entities was constitutionally permissible (or even required). The Court deadlocked 4-4, leaving in place a ruling by the Oklahoma Supreme Court that the religious charter school, St. Isidore of Seville Catholic Virtual School, violated the Establishment Clause. This forum will take up the questions left unanswered in Drummond and what the next phase of the debate over religious charter schools will look like, including whether charter schools should be considered state actors and whether the Free Exercise Clause prevents a state from prohibiting religious operators from forming charter schools.
Featuring:

Rachel Laser, President and CEO, Americans United for Separation of Church and State
Prof. John A. Meiser, Associate Clinical Professor and Director of the Lindsay and Matt Moroun Religious Liberty Clinic, Notre Dame Law School
(Moderator) Prof. Michael P. Moreland, University Professor of Law and Religion and Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy, Villanova University Charles Widger School of Law

Episode Transcript

Speaker 1 (00:02):
Welcome to FEDSOC Forums, a podcast of the Federal Society's
practice groups. I'm ny Kasmarrick, Vice President and Director of
Practice Groups at the Federal Society. For exclusive access to
live recordings of fedsock Forum programs, become a Federal Society
member today at fedsoc dot org.

Speaker 2 (00:18):
Hello everyone, and welcome to this Federalist Society virtual event.

Speaker 3 (00:23):
My name is Marco J.

Speaker 2 (00:24):
Lloyd, and I'm Assistant Director of Practice Couture of the
Federalist Society. Today we're excited to host a webinar after
Drummond What's Next in the debate over religious charter schools,
featuring Professor John Miser and Rachel Lazar. Our moderator for
today's discussion is Professor Michael Morlands. Professor Moreland is a
university professor of law and religion at Leonova University and

(00:46):
chair of the Federal Society is Religious Liberties Practice Group.
If you'd like to learn more about today's speakers, their
full bios could be viewed on our website fedsock dot org.
If you have a question at any point in today's program,
please enter into the Q and AA function at the
boggoin of your zoom window. We'll do our best answer
as many as we can. Finally, I'll note that, as always,
the Federal Society takes no position in particular legal or

(01:09):
public policy issues, and all experson's opinion are those of
the speakers. With that, Professor Morland, thank you for joining
us today, and the floor is yours.

Speaker 4 (01:18):
Thank you, Marco, and thank you as always to the
Federal Society for sponsoring these interesting, enriching programs about current
legal topics. I'll introduce the topic very briefly and then
introduce our panelists, and then we'll start our conversation. Leave
time at the end, as Marco said, for some questions
from the audience that you can put in the bottom

(01:38):
of the zoom window. In Oklahoma Statewide Charter School Board
versus Drummond, the US Supreme Court took up the question
of whether the operation of charter schools by religious entities
was constitutionally permissible or perhaps even required. The court deadlocked
for four leaving in place a ruling by the Oklahoma
Supreme Court that the religious charters St. Isidore of Seville

(02:01):
Catholic Virtual School violated the establishment clause. This forum will
take up the questions left unanswered in Drummond and what
the next phase of the debate over religious charter schools
will look like, including whether charter schools should be considered
state actors and whether the free exercise clause prevents a
state from prohibiting religious operators from forming charter schools. And

(02:24):
to discuss this topic, we have two outstanding panelists. Again,
I will introduce them briefly. You can learn more about
them and their backgrounds at the Federal Society website. Rachel
Laser is the president and the CEO of Americans United
for Separation of Church and State. And John Miser is
a social clinical professor and director of the Lindsay and

(02:45):
Matt Moron Religious Liberty Clinic at the Notre Dame Law School.
Thank you both for participating in this program. First, we've
done some programs on this topic before, including before and
after the oral argument in the case, But John, I
thought I would start with you for those who maybe
are new.

Speaker 3 (03:05):
To this issue.

Speaker 4 (03:06):
What was this case about, how did it get to
you up in front of the US Supreme Court, and
what were the primary issues?

Speaker 5 (03:12):
Sure, of course, and as so echo Michael's thanks to
Marco and the Federal Society for inviting me for hosting
this webinar, but this series in general, I think it's
terrific and Michael, thank you for coordinating all this.

Speaker 3 (03:26):
So yeah, So what is this case about.

Speaker 5 (03:28):
I think at the most abstract, this case is about
how do we how should courts draw the line between
what is the governments to control and what is and
what is private? What is private conduct that is entitled
to certain rights and privileges, including obviously those under the
First Amendment. So that distilled in our question is what

(03:49):
is a charter.

Speaker 3 (03:50):
School in Oklahoma?

Speaker 5 (03:52):
Right?

Speaker 3 (03:52):
Like?

Speaker 5 (03:52):
Is that a government run thing that the government gets
to controllers. Is it more of a privately operated thing
that is regulated by the govern meant that interacts with
the government, but that is entitled to certain rights under
the First Amendment. And as I think will become clear
in our discussion, I'll explain more in just a second.
As the case made its way to the Supreme Court,
one thing that became interesting, I think maybe to many observers,

(04:15):
is that the parties be the school sant is isidore
the state board that approved it all discuss the moment
and the opposition part of the Attorney General of Oklahoma
didn't really disagree on a lot of fundamental First Amendment principles,
which is to say, they all effectively agree that if
this school was essentially private, if its operation was essentially private,

(04:37):
that is entitled to certain rights to participate in a
charity school program, and if it's effectively government, then it wasn't.
So how did we get here? So? The school sant
isidore Seville Catholic Virtual School from Oklahoma was a project
that was started by the two Catholic dioceses in Oklahoma,
so the archdioceses of Oklahoma City the Diocese of Tulsa,
and it grew out of their experience which was I

(04:58):
think familiar across the country to educators, their experience during
COVID with online virtual education, and as they went online
sort of by necessity during the height of COVID, they
also realized that, hey, this isn't interesting. This virtual education
is an interesting and effective way to reach communities that
the many brick and mortar Catholic schools in Oklahoma don't

(05:20):
presently reach. It's a very rural state, so you just
can't physically have Catholic schools or maybe other types of
private schools close to everyone in the state, and they
found that it's actually even aside from proximity, there are
certain students who just who flourished, who did well in
a virtual setting. Certain learning needs were actually well addressed

(05:40):
in virtual setting. So they wanted to do this full time,
and they started thinking how we could they do that.

Speaker 3 (05:44):
It so happened and.

Speaker 5 (05:45):
They knew that Oklahoma had a virtual charter school program,
and that program allows private organizations to apply to a
state chartering board to start a new virtual chart school
so that these they're all online art schools that are
all statewide. They all have to admit all children, but you, effectively,
the operator, you pitch this state on what kind of

(06:06):
school you want to run, what kind of education you're
going to provide, and why that's an important thing the
state should get behind. In their stem ones, there's foreign
language immersion schools, theater art schools, there's all sorts of
different charter schools in Oklahoma. But Oklahoma, like every other state,
which I think is over forty that have charter schools,
define charter schools as public schools. And one consequence of

(06:29):
that definition is they also say charter schools cannot be religious.
They can't be religiously affiliated, and they can't teach religious curriculum.
So you would think as a non starter for the diocese,
but they were aware of this line of cases, which
ultimately culminated in Carson versus Making, where the Supreme Court said, look,
states don't have to subsidize private education through things like vouchers,

(06:51):
tuition reimbursements, things like that. But if they do, the
Supreme Court said, they can't discriminate against schools.

Speaker 3 (06:58):
That are religious.

Speaker 5 (06:59):
You can't offer a voucher, sure to attend a secular
private school, but not to attend a Jewish day school
or a Catholic private school. And so given the way
the Oklahoma's programmer structure, they thought, well, you know, these
are defined, these are called in the law public schools,
but they really look private. They're organized private entities. They
get to design their own curriculum, they sorts of things.
So why doesn't that rule apply to us through a

(07:23):
sort of like process that is not worth any of
the details of us. Suppose that the then Attorney General
of Oklahoma, John O'Connor actually wrote an opinion agreeing with
the school and telling the virtual charter board, yeah, this
school applies, you should not enforce our non religiou affiliation
requirement because that would be unconstitutional. So you have to
let them apply. And if it's a good application, if

(07:45):
the school is going to be good, you can't deny
it just because it's religious. His predecessor, excuse me. His
successor then took off as actually disagreed. Long story short,
the school was approved in the summer of twenty twenty three,
and then thereafter entered into negotiation an enter into a
contract with the sponsoring state board that would provided the
state funds to operate, and it would have then started

(08:08):
in the fall of twenty four. But then the two
lawsuits were filed, one by a group of parents and
some interest groups actually represented by, among others, Rachel's organization.
And then and they brought a host of claims under
Oklahoma law, primarily and then also the Oklahoma Attorney General,
which sort of became the centerpiece of the litigation, filed

(08:29):
a suit and action directly in the Oklahoma Supreme Court
to say, hey, this violates our constitution, it violates the
Federal Constitution. These are public schools and they can't be religious.
And ultimately the Oklahoma Supreme Court agreed on two different theories.
They said, both these schools are functionally government entities, they said,
the Supreme Court of Oklahoma said, they're sort of formed

(08:49):
by the government. They're obviously oversight provided by the government,
and they're defined as public. And I said, even if
they weren't, even if these are really private entities, they're
so heavily regulated they's source of They have to answer
to the government in so many different ways. They behave
in certain aspects like other government run schools, that therefore,
for the purposes of the Constitution, the government is that

(09:12):
as a state action. Doctor, I think the government is
the true actor here, and so therefore there are no
private first Amendent rights of issue. We so my clinic
among others represented the school. So we and and also
the state Approving Board both separately petitioned the Supreme Court. Obviously,
the court, as Michael says, took up these questions about well,
what is this school really?

Speaker 3 (09:33):
Is this really a private school, is this really a
public school?

Speaker 5 (09:36):
Is it really right that Oklahoma can keep religious actors
out of this program? Took up those questions, but as
I think we probably all know, did not answer those questions,
just as Barrett had recused yourself, and the court ultimately
divided for four teeing up our topic for the day.

Speaker 3 (09:51):
What are the questions left unanswered? All of them?

Speaker 5 (09:53):
I guess is the answer to your question. All of
the questions are left unanswered, And Mike, I don't know
if you want me to highlight one or two of
those questions now or wait, maybe.

Speaker 4 (10:02):
It we'll turn it over to Rachel for a bit.
To John's given us kind of the background of the
topic and how the case got up to the US
Supreme Court and what the issues were. Wonder what I
suspect you have a different view of at least what
the if not what the main questions were, at least
how those questions should have been answered. So maybe you

(10:22):
could say how you saw the case from the perspective
of your organization, and then we'll go on to what
those unanswered questions are.

Speaker 3 (10:30):
Thanks.

Speaker 6 (10:30):
Thanks Michael John, Federalist Society, Marco. I appreciate dialogues, cross differences.
I think that's what America needs for us. We did
bring our own case, John referred to that, and we
represented a group of families, pastors, and public school advocates

(10:51):
and that included Christian clergy and included Catholic families, which
I just wanted to stay here since we're talking about
a Catholic school and for our plaintiffs, really, this is
a case that is about America's promise of religious freedom,
and it's sort of religious freedom at its most fundamental level,

(11:13):
because it's a case about whether taxpayers can be forced
to fund a religion that isn't their own, and even
beyond a religion right, religious education, which I think we'd
all agree is in many ways sort of the heart
of religion because it sustains it. And so back to

(11:33):
sort of the court, you know, the Oklahoma State Supreme
Court that ruled in Republican Attorney General Drummonds case.

Speaker 3 (11:41):
So we brought our own case.

Speaker 6 (11:43):
Republican Attorney General Drummond, the attorney General of Oklahoma, brought
his case. That's the case that went to the Supreme Court.
But the Oklahoma State Supreme Court was where Republican Attorney
General Drummond brought his case, and they.

Speaker 3 (11:59):
Ruled in a way that I think was.

Speaker 6 (12:01):
Very sort of great, I suppose, which is that they
did find in John you referenced this that that ct
Isidore Charter School is a government entity and a state actor.
And you know, for a gazillion reasons, you know, and
you started to name them, John, I mean the fact

(12:22):
that it's created by the state, the fact that it
can be it's subject to dissolution by the state, the
fact that it has to follow state standards, the.

Speaker 3 (12:30):
Fact that it has to be open to all, that it's.

Speaker 6 (12:34):
Fulfilling a state function of a constitutional requirement of providing
public education that's open to all, et cetera, et cetera.
And what the court found was that say isidore of
civil charter school violates the federal and Oklahoma state constitutional
promise of religious freedom and also promise that public schools

(12:57):
can't be religious, as well as the Oklahoma charter school
law that John also referenced that that says that charter
schools are public schools and can't be religious.

Speaker 3 (13:08):
And see is a door.

Speaker 6 (13:10):
And I don't think anyone's contesting this right, but just
to state the obvious, is a Catholic school, you know,
its goal is to quote, create, establish and operate the
schools a Catholic school. It will be, according to its
own application for approval, a place of evangelization that participates
in the evangelizing mission of the church, et.

Speaker 3 (13:30):
Cetera, et cetera.

Speaker 6 (13:31):
And so the idea here is that as since is
a door, charter school is a government entity and a
state actor tax dollars.

Speaker 3 (13:41):
Going to a.

Speaker 6 (13:41):
School that's a state actor that's not open to all
students violates our constitution. So the bottom line here for
us is we think this is a great decision, and
it's a great decision because it protects religious freedom for
tax payers.

Speaker 3 (13:59):
That is very basic in this country.

Speaker 5 (14:03):
Right.

Speaker 6 (14:03):
Thomas Jefferson said that it's sinful and tyrannical to require
a man to fund a religion that's not his own. Like,
we feel like we're in the realm of that level
of basics here. Also, public schools are funded with public
dollars and they should be open to all, which Saint
Isidora obviously isn't.

Speaker 3 (14:23):
And let me just make this one final point.

Speaker 6 (14:27):
Religious education should be left to families and clergy, and
that is best for religion.

Speaker 5 (14:34):
Right.

Speaker 6 (14:34):
It means that religion isn't going to be subject to
government interference. That's a dangerous game for religion to play.
And that's also the system where public schools are open
to all and secular and religious education is what's taking
place with families and our Sunday schools and houses of worship.
That is the wisdom of church state separation in our country.

Speaker 3 (14:58):
Thank you, Rachel.

Speaker 4 (15:00):
Well, you can see we have a difference of opinion
here about the Oklahoma Streme Court opinion that was affirmed
by an equally divided US Supreme Court. Rachel says it
was great. I spect John think it thinks it wasn't
so great. But for John maybe the circle back. So
now that that decision has been is still on the books,
what are to take our panel's topic question? What are

(15:23):
the next questions and where does this whole issue go next?

Speaker 5 (15:28):
Yeah, I mean I'm going to focus first, Michael, on
the question of charter schools, in which obviously we're all
talking about.

Speaker 3 (15:33):
I think it might be useful later to step back
a bit and broad in.

Speaker 5 (15:37):
I think I think the questions lying underneath the specific
charter school issue in this case, and I guess and
potentially others down the road, is reflective of a deeper
issue about dividing or drawing the line between the government
and the private sphere. But yeah, so the questions in
this case or what are the next questions are I
think essentially right that the questions that are in this case,
and I think, as in all things, you know, a

(16:00):
lot of what Rachel was just saying, right is at
the most sort of abstract level of of course true. Right,
like government run schools. Public schools can't teach religion. They
can't force you can't require a child to go to
a school where he'll be taught our religion that his
parents didn't choose. You can't the government can't run parochial schools. Right,

(16:23):
things like that. But you know it's always the doubl's
in the details. Right. So the real I think hard
of this case is what do we do with the
fact that in Oklahoma or in other states, these schools
are called public schools. Right, So, like any person on
the street you say public school, I think we are
all going to have the same reaction. You think government school,
Your mind goes to government school and you think, well,

(16:45):
of course, the public school can't be religious. And again
I think all sides agree with that basic point that
government runs schools. The school that excuse me, that the
government creates and operates can't be religious. But this ring
has been clear for decades that just because you call
some thing a label doesn't make it make it so. Right,
just because you call something public doesn't mean that thing
is public, public broadcast, or things like this. Like there's

(17:07):
been a series of cases public utilities where they have
the word public, but they're actually effectively private. And so
what does the doctor and ask us to look at?
Asked us to look at, not just saying that the
government is responsible for this.

Speaker 3 (17:18):
But actually asking like, where's the evidence of that?

Speaker 5 (17:22):
So here it just to take our case as example,
but this will be what's relevant elsewhere. Santa Zadora is
a privately formed corporation that existed prior to that. It
applied as a privately formed corporation. It was formed by
the bishops of Oklahoma. It is a private, nonprofit corporation,
just as every other private nonprofit corporation in Oklahoma is.
The state didn't create it. It came up. It designed

(17:44):
its Catholic curriculum. Obviously state didn't tell it to do that.
There were no state entities involved. And importantly, and this
was a huge dividing line in the case law between
some corporations like Amtrak that are effectively public and those
that aren't. Well, the ones that are public have governing
a governing board that's controlled by public officials, right Saints
Or doesn't have a single public, publicly appointed official on

(18:07):
its board. The teachers at charter schools in Oklahoma are
not public employees. They don't have to have Oklahoma Teaching
certificates like the public schools do. So they are overseen
and regulated, and there's certain like curricular requirements and things
that have to follow. But that's just true when the
government gets involved in funding anything. Like my kids go
to a parochial school in Indiana which has a has
a pre robust boucher program. If you could look up

(18:30):
the Indiana rules for voucher participating schools, they have all
sorts of curricular requirements. Do teach this about Indiana history,
Do teach this about US history? But no one would
say that Saint Pius, the tenth Catholic church for my
kids go to school, is a government entity because of that, right,
And so what the questions? What are the sort of

(18:51):
central questions here is I think we all agree on
which side of the line, why the line matters, But
the questions that really matter are, Hey, when a state
comes in and regulates something or call something its own,
or is involved in some way in funding it. Right,
how much of each of those things makes it in
fact the government and just one last thing for this

(19:14):
and on it.

Speaker 3 (19:15):
I think Rachel knows this.

Speaker 5 (19:16):
We talked about this a little bit when we're playing
the call, Like the I understand her concern with taxpayer
dollars going to fund religious education or going to religious activity.
I think there's actually a very long history of that
throughout our whole, in the last two and a half
centuries of our country's history and before. But I guess,
more to the point, that's not a question presented by

(19:38):
this case that I mean, the Court has made clear
that there is no establishment clause concern in things like
voucher programs and things like that with money going to
taxpayers money excuse me, going to religious education. Like, as
long as everyone's on an equal playing field, it's being
doled out in a neutral way, and everyone's secular and
religious are participating, then that's okay.

Speaker 4 (20:00):
Thank you, John, Rachel over to you, maybe you could
say a bit about why you do think charter schools
and obviously some of this depends on each state's particular provisions.
Which we know the time to get into much detail.
But why you think that charter schools are public schools
and thereby are subject to the limitations of the establishment clause?

(20:23):
And maybe a little bit if you're if you'd like
to take up John's last point about why you think
that even if Zelman cases like that about vouchers are
right there, even if you don't think they're right, they're
now twenty five years old.

Speaker 3 (20:38):
But why this was in your view of bridge too far? Okay,
there's a lot in that, so let me try and
break it down.

Speaker 6 (20:47):
So I guess I'll start by saying, fine, let's even
go past this sort of definition in the charter school law, John,
you know, the charter schools or public schools. So then
we look at the fact that charter school have numerous
other characteristics that are in common with traditional public schools,
and that confirms that they're government entities that have to

(21:09):
be open to all. They can't charge tuition or fees,
they must provide academic programs that are aligned with state standards.
They receive state funding according to the same formulas that apply.

Speaker 3 (21:21):
To traditional public schools.

Speaker 6 (21:23):
They have to comply with the same rules that govern
traditional public schools on the school year length, and on
transportation and student testing, et cetera, et cetera.

Speaker 3 (21:32):
I also want to talk to the.

Speaker 6 (21:34):
Point about sort of whether they'd exist or not without
the government, because say.

Speaker 3 (21:40):
Is a door is very free to.

Speaker 6 (21:43):
Open its doors tomorrow and join the thirty other Catholic
schools in Oklahoma and au would not.

Speaker 3 (21:53):
Go do that.

Speaker 6 (21:53):
Great, that's not in our terrain of Americans United, right.
But the only reason that s Isidore exists as a
charter school is because the government brought it into existence,
and similarly, it's subject to dissolution by the government. Let
me make one more point, because John is talking about governance.

(22:15):
When Saint Isidore was approved as a charter school, its
board members became public officials by state law, so it
is in fact also governed by the state. So I mean,
I'm talking very technically, and we can talk about.

Speaker 3 (22:34):
What the problems are here.

Speaker 6 (22:35):
And there are so many problems with having sort of
state governing of religion for religion, you know, very dangerous.
I've worked for the Religious Action Center of Reformed Judaism
for many years and I'm a proud Jew, and I
certainly wouldn't want that to happen to Jewish schools, right, But.

Speaker 3 (22:55):
We can save that topic.

Speaker 6 (22:57):
You asked also about school vouchers, and you know Espinosa
and Carson, and we would really strongly distinguish those cases
from here because those cases are about indirect and partial funding,
right that goes through parents, and private school vouchers is

(23:19):
a whole other topic, and we can take that up separately,
and the problems with it and the way you know,
the test scores aren't good and it helps families that
already can afford private schools, and some and the roots
of it and resistance to round versus Board of Education,
et cetera, et cetera.

Speaker 3 (23:35):
But we can come back to that, Michael if you want.

Speaker 6 (23:38):
But really like the distinction here is we're talking about
direct and full taxpayer funding of religion, and that's a
very different situation. It would be a sea change, It
would be a sea change for our democracy to have
religious public schools, and it's dangerous for taxpayer's religious freedom.

(24:03):
And once again, I just want to go back to
how dangerous it is for religious schools because no one
wants the government to be overseeing what religious schools curricula
should or shouldn't be.

Speaker 3 (24:15):
That's that's not a good situation for religion.

Speaker 4 (24:20):
John back over to you maybe to respond if you like,
to some of Rachel's comments and choose any of them
that you wish. But one in particular that I know
is picked up in the brief by Greg arr And
on the side of the Attorney General of Oklahoma, that

(24:40):
the that the board or that the entity somehow only
came into existence by virtue of Oklahoma state action, and
that it sort of changed the character of it into
more of a government actor or a government entity by
virtue of that.

Speaker 5 (24:54):
Yeah, so I can start there, Michael. I mean, this
is quite in the weeds, so I'll try not to
on it too long.

Speaker 3 (25:01):
But you're right.

Speaker 5 (25:02):
So at the Supreme I mentioned at the Oklahoma Spreme
Court there were kind of two avenues of thought at
the Oklahoma Supreme Court's decision, the majority's decision as to
why an oklahomatury school is a state actor. It was one,
it is a government entity, became like the thing itself
is part of the government, as opposed to second, well,
maybe if the school even isn't part of the government,
it's so entwined or regulated by it that it's still

(25:25):
subject to state actor analysis at the Supreme US Supreme
Court level. It was really just a former argument that
they focused on. And like you say, it was this idea,
so like no one can deny what I just said
a minute ago, that the school went and applied, right,
it was a privately formed non profit organization. The argument
from from the other side went that, yes, but and
I think this is kind of what Rachel was just
getting at that. But when you entered this chartering process, right,

(25:48):
and this process of application and approval on contracting and
all that, the result of that process was to spin off.

Speaker 3 (25:56):
A new entity, so to speak, a charter school.

Speaker 5 (25:58):
And that charter school whatever or the private organization that
applied was that charter school is a specifically governmental entity.
I think is the essence of the idea. The problem
is it feels a little like alchemy. It's a little existential, right,
and you have to step back and say, well, what
is a corporation? Was any corp? I don't mean like

(26:19):
a capital C corporation, but any sort of corporate group,
what is it? It's just an association of people, right,
doing something. And so then to define what kind of
entity any given entity is you have to look at
who are the people that formed and ran it. And
again this is where this is all in the briefing
of the Supreme Court, the US Supreme Court. If you
look at those cases like the Amtrak case and others,

(26:41):
where the Supreme Court has found a corporation nonetheless to
be public, it's because the corporate charter, I mean, it's
not not charter. I'll address the word of charms, but
the corporate sort of like formation documents were done by
the government, where the government was involved in it and
designing it. But more explicitly, the government has populated the

(27:01):
controlling board right like there are presidential presidential appointees, there
are congressional appointees, there are things like that. So then
and then the only thing that really left is this idea. Well,
it's chartered, it's publicly chartered school. But all private corporations,
of the Supreme Court has pointed this out, nearly all
hold a charter given by the state governers. So the
fact that the government involves itself and makes it makes

(27:21):
you come through the government to form an entity in
some way or another, doesn't make that the entity you're forming.
The governments I'm going to pivot to something broader, if
that's okay, Michael. And oh and then on the last
point about I think Rachel mentioned that the government. Oh
so in our case, it was the exact same by laws,
same governance documents, same board, like literal, same human beings

(27:43):
on the board, from the original corporation to post chartering process,
so that nothing new came into formation. It was the
exact same thing. And there is nothing in the law
that that establishes that these people, like the chancellor of
the Archdiocese of Oklahoma became a government official, not in
the law. But aside from all that, like why does

(28:04):
this matter, right, because you could say, I think a
lot of the tone of what Rachel's getting at is,
you know, there's other things you can do right, and
and maybe choosing to go through this chartering out maybe
that's actually I think this could be a fair fight,
a debate that could be had among policy experts or
religious educators, which is is it better or worse to
go through this route versus another? But that's not you know,

(28:25):
those choices about what's better for the Catholic schools in
Oklahoma or any other state is made to those Catholic
educators who run those schools, and they, you know, they
get to make those choices just like all other secular
private educators get to make them. Whether the government conditions
are sort of worth you know, whether that makes it
more preferable to do something else or not, that's kind

(28:46):
of a policy choice for them to make. But the
thing that I think really matters is it's this doesn't
just take one option off the table. This is and
this is representative of a move that governments try a lot,
and if it's successful, we'll cut religious groups out of
a lot of sectors of activity. And I'll just give
one example, which I think Fulton versus City of Philadelphia,
the case a few years back about Catholic social services

(29:10):
in Philadelphia participating in the foster care system, something they've
done for centuries. The exact same arguments that are being
made here were made there, and actually theton the Fulton
oral argument really focuses on this, Well, this is the
government's program, it's the government's contract. Can't they decide who's
in and who's out. Can't they make foster care service
providers agree to certain non discrimination provisions. In that case

(29:33):
about same sex couples, and the same argument that Rachel
just made would apply there. Catholic Social Services in Philadelphia
can do a lot of things, but if it chooses
to participate in the state's foster care system, if it
wants to be a foster care certifier, well that's a thing,
just like being a charter school.

Speaker 3 (29:49):
What is a charter school?

Speaker 5 (29:50):
A charter school is a school that participates in a
state charter program. So to tell the organization, they can
do a lot of different types of schools, but you
can't do this kind of school. Is very similar to
telling Catholic Social Services in Philadelphia you can do a
lot of stuff for families and kids and adoption, but
if you want to be a state foster care certifier,
that's a state run thing and you're now part of us.

(30:11):
That argument didn't fly in Fulton, and if it were
to be given legs here, it could be applied a
lot across a lot of different areas where the state
really relies on needs relious organizations to provide, like critical
services like shelter and all sorts of other things.

Speaker 4 (30:26):
Rachel feel free to respond in you, Yeah.

Speaker 6 (30:29):
I mean I agree, John, Like we could kind of
go endlessly in the weeds at sort of the details.
But I think the bottom line is was there substantial
government control? Is there substantial government control here? And the
answer is absolutely. Also Fulton just sort of just to

(30:50):
go loyally firm anent. Fulton was a very limited decision
based on you know, this funkiness and the contract and
this discretionary exam stuff, and it actually didn't even consider
a foster here. Agencies are state actors, So I just
did want to distinguish it in that way.

Speaker 3 (31:10):
So yeah, back to you, Michael, So we do we.

Speaker 4 (31:14):
Already have some questions, So maybe one round of another
question that I mentioned to the panelists when we were
preparing for this, and then we'll look to some audience questions.
And it's this, given that we're now talking about what's
next in this debate about religious charter schools, John, and
I'll sort of ask the inverse of the question each
of view, John, would there be ways in which a state,

(31:35):
if it really wanted to prevent the operation of charter
schools by religious entities, could change or amend or look
at its charter school laws in such a way that
the Saint is our option would be foreclosed and then
I'll to Rachel ask the question, would there be ways
if a state wanted to invite religious participants into its
charter school program that it could do so in such

(31:56):
a way that, while you might not like it, you
would have to concede that the constitutional doctrine in this
area who leans that direction?

Speaker 5 (32:04):
So John to you, Yeah, I think it's our conversation
is unpacked. And as like the briefing arguments in the
case make it clear the way a state, if state
wants there to be a system of schools to which
religious educators don't get to apply or participate, the only
way we can do that is if those schools are
government schools. Right, Like the whole point of Carson and

(32:27):
the whole line of trending Lutheran cases is that a
state need not subsidize private education, like that's a policy choice.
But it does subsidize private education. They can't kick out
the religious. So how how do they design a charter
program that would allow a state who does not want
there to be religious charter schools into the program.

Speaker 3 (32:46):
They have to do the work themselves. Those have to
be government run schools.

Speaker 5 (32:49):
So, like these touch points we've been identifying, creation control.
And I don't mean control by regulation. Everything in the
country is regulated. Boeing is regulated as much as you could.

Speaker 3 (32:59):
Be no things.

Speaker 5 (33:00):
Boeing is the US government. But control, like formal control
on the school. Is it run by a public school district,
like a school board of a point excuse me, elected individuals?

Speaker 3 (33:12):
Curricular design.

Speaker 5 (33:14):
So I don't mean just like again, like the parochial
schools that my kids attended, and Dan, I don't mean
just you have to teach these seventeen subjects. It's more
than seventeen, and you have to do it for this
many days a year and things like that. But I
mean the whole point of a charter program is to
design schools that will look different from each other.

Speaker 3 (33:31):
And that's great, But if.

Speaker 5 (33:33):
The state wants a program like that, it's going to
have to come up with, you know, the designs itself.
So if I were a state who wanted to have
something like a charter program that allows me to regulate it,
regulate out I suppose keep out religious schools, it would
have to be the schools need to be like really
formally formed and controlled by public officials. And I think

(33:53):
there's going to have to be really close attention to
just how much are they designing and controlling the day
to day operations of the school beyond the simple idea
of regulating right which which we see a lot.

Speaker 3 (34:04):
Of Rachel Well, I don't love the question, but well
I don't want to.

Speaker 6 (34:15):
I guess you know what I would say is, look,
we already have this line of cases that started with
Zelman in two thousand and two, and frankly we don't
like them, but that allow government dollars to go through
to pass through parents indirectly, and to fund religious education partially.

(34:37):
And anything that goes beyond that just so clearly runs
a foul of the Constitution. And I would just also
sort of back out of it a little bit and
just say, you know, religious education is doing well. It's
it's it's thriving. And what will guarantee that it continues
to thrive is if it stays step from becoming too

(35:02):
closely related to the government. I mean, look, we've seen
with this administration the way when the government sort of
controls the purse strings, it can control the agenda. You know,
some people applaud that, and you know some people don't.
But I think the point is, like with real government,
involvement and support strings are attached, and they should be attached,

(35:27):
and that is not a good thing for religious schools.
So I would say, let you know the whatever they are,
over one hundred religious schools, thirty Catholic schools in Oklahoma
continue to thrive.

Speaker 3 (35:40):
Let's say, isidor become a thirty one or whatever.

Speaker 6 (35:45):
But it's just not it's running a foul of our
constitution to allow charter school with the way charter schools
function to be religious.

Speaker 4 (36:00):
Right. Well, I said we would get to some audience questions,
and again, if you have some, put them in the
Q and A at the bottom of the zoom window.
There's a couple here that maybe I'll try to assimilate together.
One question some of us the Saint is door only
except Catholic children or non Catholics allowed to enter in Chicago.

(36:22):
The Catholic schools especially do not require being Catholic. Someone
else asked, was admission to St is door limited to
Catholics or open to others? John, you probably know the
end of that question.

Speaker 5 (36:34):
Yeah, this goes hand and hand with the sort of
conditions point that Rachel just ended on and the thing
I was saying earlier, where yea. Conditions are going to
be attached to funding, and it's up to individual private
educators to figure out what's best way forward for them.
So for this particular question, yeah, I mean Santa's door
is no more. But were it to have opened, yes,

(36:57):
it was. It was explicit throughout in the application and
in the litigation it was open lottery enrollment. So right, So,
I think one of the commenters pointed out that when Chicago,
the schools they're familiar with have some sort of preference
or priority for Catholic students. I think that's also true
in Oklahoma's other private, you know, parochial schools. But this

(37:21):
is a different model, right, This was they went in
with open eyes and they said, if we're going to
do this, it's going to have to look a little
bit different than at least around some aspects than our
other schools might. And one of those was they were
not going to give any preference to Catholic schools students.
Excuse me, because I understood that condition applied and it

(37:41):
made sense in the program, and it was one that
they were happy to take on. I understand some schools
might not make that choice, and this came up at
oral argument. And this is a big, big open question
not but it's not just in ours, but in the
Carson in all cases. So you have to let these
groups into the programs? What conditions can be attached, conditions
that might be religiously.

Speaker 3 (38:01):
Onerous?

Speaker 5 (38:03):
And that's just this whole other area of law about
the constitutional conditions doctrine. And our case actually didn't really
present that as came out of an argument because the
school had agreed to comply with that.

Speaker 3 (38:12):
Ooh, can I come into this? Yes, I remember.

Speaker 6 (38:16):
You know, just when I was first learning about the case,
and so I was sort of wondering about this very question,
and so I went onto the Saint is a Door
website to sort of see what they say, you know,
because a requirement is that charter schools be open to all,
and sort of how are they going to deal with that?

Speaker 3 (38:33):
And you can apply if you're not Catholic.

Speaker 6 (38:36):
You know that is true, But what the website said
is basically their website, that you have to comply with
their policies and procedures and their morality code, which is
in keeping with the Catholic Church.

Speaker 3 (38:48):
So I mean, this is a this is a Catholic school, so.

Speaker 6 (38:52):
To me it's pretty empty to say, you know, you
everyone's welcome here, but you know you, as a Jewish family,
have to be comfortable with your kids potentially being taught
that when everybody dies, you know your kids won't be
in good shape or you know. I mean, it's it's

(39:14):
it doesn't feel very real to me.

Speaker 5 (39:17):
I mean, I don't think that there's any point in
a litigating what a hypothetical school would wouldn't have done.

Speaker 3 (39:22):
That's never going to open.

Speaker 5 (39:24):
But okay, this is not a fair representation of the
schools the school. Yeah, the school made kids could not
only apply but en role like admission was open to anyone,
uh and not denied on any basis whatsoever to do
with religion or anything else. And then the fact that
all children were required to abide by the standards of
Connor is true across all Oklahoma chartis and Oklahoma doesn't

(39:47):
have to design it this way. But I'll just give
you a couple of examples, like there is uh I forget.

Speaker 3 (39:52):
Which tribes is.

Speaker 5 (39:53):
There's a handful of tribal charter schools in Oklahoma, one
of which, in their disciplinary policies says is an operating
charge school in Oklahoma and in their disciplinary policies it
says that student conduct will be handled through spiritual practices
they invoke before opening the student conduct meeting, they invoke
spiritual guidance from the tribal uh, you know, in course
of the trial tribal practices. There are others that have

(40:14):
peacemaking processes, and there's some there's one that's in the
Hillsdale model. It's a very strict classical curriculum and disciplinary
model where it accepts sort of like no broaches of
decorum or something like that. So the disciplinary policies in
all of these schools look very different from each other.
And I fully agree that some children or some families

(40:35):
would find themselves able to fit within some of these
disciplinary expectations or these rules expectations, and some wouldn't. But
that's very, very different from saying you're not allowed in
the school, you're not welcome here, And it's just not
true that sators or wouldn't have welcomed kids of any
faith or not. But again, like this is all hypetic,
like the school is not even going to open.

Speaker 6 (40:52):
It's it's hypothetical. But we saw their application and their application,
and I just found it right, and I'm quoting says
that admission assumes the student and family willingness to adhere
with respect to the beliefs, expectations, policies, and procedures of

(41:13):
the school. So you know, to say you can apply
from all belief systems, but you're expected if we admit
you to adhere to our beliefs, that's not very sincere.

Speaker 5 (41:24):
I mean, there's one word in a several hundred page
application that I was when I spelled out in the
school's policies, it was very clear students didn't have to
believe in the Catholic faith. They could even there's only
a couple annual masses, and schools were allowed. I mean,
students were allowed to seek exemptions not to attend the
mass if it didn't accord with their faith. So it's
just I understand that you can pick us and it's

(41:46):
here there out of an application, but when't put into practice,
there's there's no evidence that the school wouldn't ever have agreed.

Speaker 3 (41:53):
To the things they said in litigation repeatedly.

Speaker 5 (41:55):
Of course all kids are welcome, but again I think
we should step back, like this broader question about what
conditions can be applied, whether they be on admissions or
discipline or anything else, and how they could be applied.
This is a huge question left in the doctrine, but
I want to emphasize as is not a unique question
to this charter school world. Like right now in Maine

(42:18):
they're litigating the follow on from Cars and Versus Making
where main lost in Carts and Versus Making, they can
no longer kick out schools that teach in a religious way.
They've now attached new conditions to their participation in that
same program, and it's presently being litigated about whether those
conditions effectively foreclosed religious schools from participating in the program.
And are there foreign constitutional as well. This is a

(42:39):
question in a lot of different areas that the Court
is going to have to take up probably relatively soon.

Speaker 6 (42:45):
But sorry, just one last thing, Michael, I promise that
this is what we're I mean, I don't want to
gloss over though this idea that like this idea that
Catholicism sort of permeates the school or that it's not
really a play for all is sort of misrepresented in
that one sentence that I said, because I actually think

(43:06):
that doesn't do justice to the Catholic school. I mean,
and I just want to point out, so you know,
another part of the application says, the tradition and teaching
of the Catholic Church and the virtue of Christian living
will permeate the school day and will be expressed through worship, prayer, religion, classes,
and the general climate of the school. And that's a

(43:27):
good thing. And that's a good thing as it should
in a Catholic school. Like if I'm a parent, you know,
I sent my kids to Jewish like preschool because I
wanted them to learn our values and everything. And that's great,
Like I don't this is exactly what I mean that
like in defending it as a government sort of run government,

(43:51):
you know, subject to a lot of government things. School, John,
I'm hearing you have to almost like back down.

Speaker 5 (43:58):
It's Catholicism. And no one for the school. No, no
one would suggest the school would be anything. But the
school is very open, I think, very forthcoming. I think
it does not do justice to the Catholic tradition and
the Catholic faith and Catholic education to suggest that a
school where the Catholicism permeates is a school where those

(44:20):
who are not Catholic are not welcome. That's just not true.
It hasn't been true across centuries. We could go through
example after example of people who have come to and
benefited from and are deeply thankful for the opportunity to
receive a Catholic education, who are not themselves Catholic, who
did not become Catholic, and who did not die Catholics.

Speaker 3 (44:40):
So again, I don't really think it's the point of
what we're doing here.

Speaker 5 (44:42):
But the school, of course would have been open to
all students, and the fact that Catholicism would permeate the
classroom does not change the answer to that.

Speaker 4 (44:53):
Maybe let me jump out with a question here that
maybe Rachel you could take a stabic think you might
I have something to say about it. The question say,
is I think the more difficult establishment question relates to
the question sorry, the choice of whether to approve a
charter application. I don't think it's possible to create a
sufficiently comprehensive matrix that says if an applicant checks all

(45:13):
these boxes, then the authorizer will approve, which is to say,
some degree of judgment enters in. If that's true, what
happens when an authorizer approves an application from one church
but not another without the intervening actor that Zellman contemplates,
how does an authorizer avoid an establishment problem? Wouldn't the
authorizer inevitably put their thumb on the scale in favor
of one religion over another. So some a long question,

(45:36):
but I think it kind of tease up the issue there.

Speaker 3 (45:38):
That's a softball, Yeah, I mean that.

Speaker 6 (45:41):
I mean, I think, but I think we're all human beings,
and I think that's exactly right.

Speaker 3 (45:46):
It's hard to imagine.

Speaker 6 (45:48):
It's almost impossible to imagine that there wouldn't be bias
that comes into let's say there's like a limited number
of charter schools that you can approve, or a limited
number of dollars that you can divvy out, or something, say,
you know, I don't know, the Satanic Temple applies or
these you know, the Church of Flying Spaghetti Monster, or
I don't know, you know, and someone applies, and you know,

(46:09):
it's it's just hard to imagine an individual's bias not
coming into play.

Speaker 3 (46:16):
And that is.

Speaker 6 (46:19):
Actually, I think one of the worst things possible for
America right now. That's what I want to say, because
I think I hope, I hope that everyone on this
called Marco, you two and everyone listening would agree that
we're very divided right now, and that's not a good thing.
Like the level of divisiveness is it's actually dangerous right now,

(46:39):
right And I mean our founders knew that, you know,
the government playing any favorites when it comes to religion
is bloody warts that it really does.

Speaker 3 (46:52):
Divide us in very serious ways.

Speaker 6 (46:54):
You can look even across American history like the Philadelphia
Bible riots right where people were killed. I mean, it
has continued to show up, and I would argue, and
I know it's self interested, but I am a student
of this and I've spent almost eight years looking at
it every day that the continuous undermining of the separation
of church and state, which is the guarantee of religious freedom,

(47:18):
is part of the reason.

Speaker 3 (47:20):
That we are as divided as we are right now.

Speaker 4 (47:23):
So yes to that question, John, since it is an
important issue for as we've been as the panel is
about the next the next stage of all this, does
the authorization process inevitably have more of an establishment clause
con set of concerns to it, as the questioner was
employing that than than maybe in the Oklahoma case.

Speaker 5 (47:47):
Yeah, So I think the authorization process is obviously a
government run process, right, so you get to skip that SEP. Right.
And so if the government authorizers are making choices doing
out benefits based on religious preferences, like their own religious preferences,
then yeah, I think that's obvious. I could raise very
serious first amount of concerns, and I take Rachel's point

(48:08):
the right about individual biases, and like none of us,
there's no system one could design right to safeguard that
stuff out of it. But the lesson of Carson at all,
you know, whether we preferred or not, the lesson of
Carson at all is if you open up a neutral
benefits program, why wouldch I mean, like anyone can apply.

(48:30):
If you open up a benefits program to subsidize private
conduct or private entities or whatever else, even if it's
application driven, you can't say at the front end, no
application from a church will be considered, right, You can't
say everyone except the religious can apply.

Speaker 3 (48:47):
Now, I agree, and evaluating those applications.

Speaker 5 (48:50):
It needs to be done on a neutrally, on a
religiously neutral basis.

Speaker 3 (48:54):
I also agree that's.

Speaker 5 (48:55):
Not always at the margins, maybe going to be easy,
but as we done on neutral bas is about all
sorts of the biases that we all know about, right, Like,
you can't doll out benefits based on someone's biases against
a certain race, or against a certain ethnicity, or against
anything else, right against a certain sex. Do individuals do
that and when they're making decisions? Yeah, probably unfortunately so,

(49:15):
but that's just human nature. And you can't at the
front end say we're really afraid of someone doing this
in an unconstitutionally discriminatory way, and so the way we'll
do it, we'll just we'll just embed the unconstitutional discrimination
in on the front end.

Speaker 3 (49:29):
You can't do it that way. I have a response
if you want, can we.

Speaker 4 (49:37):
Let's should we go into another question, maybe your comments
into the rest that they're all sort of a lot
of overlapping it. So one question is is there anything
relatively unique about Oklahoma system that affects the characterization as
public or private? In other words, with the federal establishment
clause reasoning of the Oklahoma Supreme Court apply with equal

(49:58):
force to other states systems.

Speaker 3 (50:01):
Rachel, I mean a lot of.

Speaker 6 (50:06):
States say that charter schools are public schools explicitly like Oklahoma.
Other state systems are generally similar, is.

Speaker 3 (50:17):
What I would say.

Speaker 6 (50:20):
And I do have a response to what John said
that I'll just quickly bring up, even though I can't
quickly figure out how to tie it to what I
just said and be smooth about it. Apologies, but I
did just want to say that, you know, I think
the thing about religion and religious freedom is that there's

(50:40):
something really like particular and special about religion in this country,
and that our founders were so dedicated to this Enlightenment
idea of the importance of freedom of conscience and religious freedom.
Like they got right, like people are literally willing to
die for it, and we see.

Speaker 3 (50:56):
That every day around the world.

Speaker 6 (50:58):
Right, they got how important it was, and so they
were dedicated to separating religion from the government in order
to protect that freedom of conscience. And what concerns me
about John, like the idea that you were talking about about, Oh,
we can't leave religion out, you know, like, is like

(51:19):
to think about that in non charter public school context, right,
think about that just like in the public like what
you would consider like traditional public school context. Right, Like,
we cannot get to a place in this society where
abiding by the constitution becomes a constitutional violation, where you

(51:40):
know where like because you agreed, I think earlier in
the conversation that like public schools should be secular.

Speaker 3 (51:47):
Right, and so like, yeah, the government runs school of course, yeah.

Speaker 6 (51:50):
Right, And so that is the concern that like we
are moving too fast towards a place where you know,
treating religion in this special way by separating religion from
the state in order to protect religion and religious freedom
in and of itself, becomes accused of disparaging or discriminating

(52:13):
against religion, because really that's backwards and it protects religion,
and it's part of the DNA of America.

Speaker 3 (52:23):
Michael, I don't remember the original question, but I will
I was one question.

Speaker 5 (52:32):
Oh sorry, if I I want to comment on this
this theme that's come up for the last few minutes
about you know, religious plural so like right, so the
answer to all of this is equality and pluralism, right,
you know. Justice brier He during Carson and some other arguments,
would bring up this idea that if we allow funding

(52:53):
taxpayer funding to go to religious education, and obviously taxpayer
a might like taxpayer bes education that he sort of
like partially funded, and then there's going to be riots
and all these things. This is not true and we've seen,
you know, since Espinoza, Carson, Trendy Zelman. It's not as

(53:13):
if we're having religious wars in the streets. And relatedly,
why because one of I think the historically proven surest
ways to help foster religious harmony and pluralism and the
things that Rachel is describing is by letting everyone in
equally to participate in the things that government administers.

Speaker 3 (53:34):
And it cannot be lost that the Bible.

Speaker 5 (53:37):
Riots that were referenced in the nineteenth century grew directly
from police starting in New York, and it's spreading it
towards the west by Catholic educators that the government run
schools at the time were hostile to Catholic immigrant children.
And when they were told they couldn't exempt themselves from
particular practices that were hostile to their religion instead of

(53:59):
including reading from the King James Bible, hence the Bible Rights,
they said, well, then let us get some some cut
of the tax paryam money to form our own schools,
and like you know, we won't have all this friction
in these schools that are openly hostile to us and
intentionally hostile to us, because it's a sort of nativist
driving thing against the Irish immigrants that erupted in violence.
So it's stemmed from an early plea in New York.

(54:22):
Dagger John Phelps was sort of run out of town
when he sought equal fair funding of Catholic schools. So
it was those who wanted to not fund private religious
education that responded to the request with violence. Now I'm
not suggesting at all that that's what's happening today, but
the idea that violence follows from equal funding, I think

(54:42):
actually gets the historical story backwards.

Speaker 3 (54:47):
May I respond, Ah, Rachel, who we're here for us first? Okay, Yeah,
here we go.

Speaker 6 (54:53):
The Bible riots were caused by the unfortunate reality that
there was a pref for one religion over others in
public schools. That is actually what caused the riots.

Speaker 3 (55:06):
Right, and the idea that.

Speaker 6 (55:10):
Religious minorities, you know, and Baptists have in their theology
a commitment to church state separation because they remember when
they were treated poorly and were the religious minorities in America.
But the idea that religious minorities could be equally served
in a government system that sort of opens itself up
is flawed for so many reasons.

Speaker 3 (55:31):
I don't even know where to begin.

Speaker 6 (55:32):
But let me start by saying the bias that we
just referenced right that we come into play. Let me
also give an example from the Jewish Telegraphic Agency Press
of an oak law of a Florida charter school operator,
a Jewish one, who claimed, oh no, this is good though,
you know, because we can fund our Jewish yeshivas as well.
And he took a visit to Oklahoma and immediately was

(55:55):
quoted as saying, oh no, forget it, like scratch, that
there aren't enough of us here for that to happen.
So it's not it's just it's unrealistic. It's a constitutional violation.
And America would do best to stay committed to its
promise of church dates separation in the realm of public

(56:16):
education and education that's supported.

Speaker 3 (56:19):
By the government, to cut down on.

Speaker 6 (56:22):
Division, to protect taxpayers, religious freedom, and to protect religion itself.

Speaker 4 (56:28):
We maybe have time for one more question. We've covered
a lot of terrain. We've covered the background of this case.
We talked about some of the finer details about public
private entities that will be the next phase of litigation
or the next phase of this issue litigated or not,
and We've also talked a bit about, obviously, some of
the larger underlying concerns that both John and Rachel have

(56:51):
in mind. Here here's a question though, that is I
thought kind of an interesting new one since the case
was since the case was decided quote unquote or not decided,
the audience member asked, since the core this topic seems
to be about whether charters are governmental and the distinction
would not apply just to religious entities that want to
have a charter, but all charters. How would the Mariland

(57:13):
case decided this term to allow parents to opt out
on religious grounds apply to charter schools or would all charters,
as private actors be able to religiously discriminate? So an
interesting question there about in this next turn of these
issues about school funding and religious education and parents, how
does Mahmoud versus Taylor affect any of these issues in

(57:36):
your view?

Speaker 3 (57:38):
John?

Speaker 5 (57:38):
Yeah, well, I mean, and I think this is an
important pointed end on Maybe you know, all of the
concerns that Rachel's articulated or that you'll see about this case,
they only manifest about if we're wrong, if I'm wrong
that a charter school in Oklahoma or whatever other state
if I'm wrong and it really is the government, then

(58:00):
we agree, right then it can't be Catholic, it can't
do so. So all these concerns about what the government's
going to do to our children, they only manifest if
I'm wrong that it's not the government, right, so and
so to bring that into the my mood. So if
charter schools are governmental, then then you right, then they're
state actors and the constitutional restraints.

Speaker 3 (58:18):
Apply to them and et cetera.

Speaker 5 (58:20):
So suddenly you you know that I think my mood
becomes relevant. I would say the particular question in my
mood about opting out and the coercion about if you
offer this public school option and there is no other
opt out, and you know, what's a kid or a
parent who wants to raise their kid in a different
way with respect to their religion, what do.

Speaker 3 (58:42):
They do about that?

Speaker 5 (58:42):
They need an ability to opt out for chartersool I
might be wrong, but I think all, if not all,
or nearly all across the country charter schools are opt
in models. So even though it would be state action,
if if they are the government, the opt in opt
out question becomes very different because you showed up they're
in the first place, and you presumably chose it over
a different option, so I'm not really sure.

Speaker 3 (59:01):
Shakes out the same.

Speaker 5 (59:02):
Of course they're charter schools if I'm right, and charter
schools in many of these states are not governmental, well
then it's just like choosing any other privately run school, right,
and like they design their creaklim as they design it.

Speaker 3 (59:15):
Rachel, any thoughts about that issue, Yeah, I mean just that,
lots of thoughts.

Speaker 6 (59:20):
I mean, firstly, we disagreed with the Mamoud decision on whole.
We think public schools should teach our kids how to
coexist across their differences, much like we're doing today, and
to respect everyone. And in that regard, you know, they're
glue for our pluralistic democracy and parents are always free
to impart separately their moral and religious values at home

(59:42):
and through religious education.

Speaker 3 (59:45):
But also imagine how.

Speaker 6 (59:47):
Unworkable like mood would make religious charter schools, because you know,
we just had this conversation earlier about how they have
to be open to all right, and John, you are
celebrating families, you know, who aren't Catholic who've gone right.
But when the mood comes into play, then the religious
charter school would have to provide an opt out for

(01:00:09):
families for parents from all religious instruction, okay, to which
the parents object, right.

Speaker 3 (01:00:16):
The free exercise clause would require it.

Speaker 6 (01:00:19):
And so now take a school like Saint Isidor, which
integrates religious instruction into all of its secular subjects very intentionally,
having to offer those opt outs.

Speaker 3 (01:00:28):
It's just unworkable.

Speaker 5 (01:00:31):
Yeah, And to be clear, like if the school is Catholic,
is therefore again the Saint Isador. If it's allowed to exist,
it's because it's private and so therefore you can't sue
it in the same way you could sue the government.

Speaker 3 (01:00:43):
So again, and it's an opt in model.

Speaker 5 (01:00:44):
So I think for two different reasons, even if it
were the government, but especially if it's not the government,
I think the claims made in my mood look very
different for a school you opt into, especially if it's privately.

Speaker 4 (01:00:56):
Well, we are past one hour, and I am grateful
for this civil and robust discussion between John Meser and
Rachel Laser about what the next issues will be in
the discussion about religious charter schools following the Supreme Court's
non decision in the Drummend case. And we will stay

(01:01:18):
tuned to see what the next issues might be, and
we'll be back, we hope, with another webinar when ready,
but until then we are adjourned.

Speaker 3 (01:01:28):
Thank you, Billy, Thanks thanks Hi everyone, Thank you John.

Speaker 1 (01:01:32):
Thank you for listening to this episode of fedsock forms,
a podcast of the Federal Society's Practice groups. For more
information about the Federal Society, the practice groups, and to
become a Federal Society member, please visit our website at
fedsoc dot org.