Publication Date

Spring 2024

Document Type

Article

Abstract

This article explores how constitutional law concerning religion has reached the point where the validity of a publicly funded religious school is even a debatable issue. It argues that the First Amendment provides a simple formula for achieving optimal protection of religious freedom, by maximizing religious rights in the private realm while minimizing the role of religion in public matters. For decades, the Supreme Court largely succeeded in maintaining this boundary line between the private and public spheres. A key turning point occurred in 2002 when the Court decided Zelman v. Simmons-Harris and upheld a program in which families received vouchers that could be used to pay for tuition at private religious schools. That case posed a difficult issue, because it was about public money funding private choices. It concerned a program in which families made private decisions about religious education for their children, but it opened the door for enormous amounts of money to flow from public sources to private religious uses. That decision led to a string of other rulings by the Supreme Court that have consistently and substantially dissolved the distinction between the private and public realms when it comes to religious freedom. Those rulings in tum have set the stage for further encroachments of religion into the public realm, such as the proposed Catholic charter school in Oklahoma. With the litigation concerning the Oklahoma school already underway, it may ultimately generate the next major Supreme Court decision concerning religion and education. This article analyzes the arguments that might persuade the Court not to give its blessing to the unprecedented blending of public education and sectarian religious interests.

Litigation concerning the proposed Oklahoma school is just getting started, and the scholarly debate over the issue is also in its early stages but will surely be heating up quickly. So far, most participants in that debate have taken the position that the constitutional door is open for religious charter schools, at least to some extent. A resistance is emerging, with a few writers opposing the slide toward allowing public schools to be religious. This article, the first that is focused specifically and directly on the Oklahoma situation, joins and builds on that resistance and warns about the perils of crossing the line into having public schools devoted to particular sets of religious beliefs.

Publication Title

Tulsa Law Review

Volume

59

Issue

2-3

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