Efforts to create religious public schools are back in court after the U.S. Supreme Court split 4-4 over the issue last year in St. Isidore of Seville Catholic Virtual School v. Drummond. In St. Isidore, Justice Amy Coney Barrett recused herself and didn’t participate in the case. By splitting 4-4, the nation’s high court set no nationwide precedent but left in place an Oklahoma Supreme Court decision that had barred charter schools from promoting religion to students or coercing students to take part in religious activity.
The Oklahoma Supreme Court’s decision — which adopted many of the arguments that Americans United and allies had presented in an amicus brief — reasoned that religious charter schools would violate the separation of church and state. In other words, charter schools are public schools and need to act like them.
Now, conservative legal groups are scrambling for another shot at convincing the U.S. Supreme Court to erode church-state separation by green-lighting religious public schools. In a handful of new attempts to create a test case on this issue, we’ve seen plenty of the usual grievance-airing over supposed anti-religious bias. But these would-be schools and their backers haven’t spent much time focusing on the whole running-a-school thing.
Take, for example, Riverstone Academy, a “contract school” in Pueblo, Colo., that has been described as Colorado’s “first public Christian school.” (Note that Riverstone is not actually a charter school but the result of a rather dubious interpretation of a Colorado law that authorizes contracts for educational services.) Riverstone was apparently created to spark a lawsuit that would end up at the Supreme Court. And sure enough, Riverstone filed a lawsuit in federal court last month.
But here’s the thing: Before Riverstone could even file its lawsuit, it got shut down by Pueblo County for various zoning and health-and-safety violations. The school seemingly prioritized its rush to the Supreme Court over the basic safety of its students. The school is apparently operating from a temporary location, but its long-term viability seems uncertain. No matter, it’s still pursuing what is clearly its raison d’être: attacking church-state separation in court.
And then there’s Ben Gamla Jewish Charter School, which is yet another effort to create a religious public charter school in Oklahoma. Like St. Isidore, Ben Gamla plans to infuse religious teachings “into every dimension of its life,” and it has waffled on whether to commit to complying with antidiscrimination and disability-accessibility laws that govern charter schools.
These are big problems, but they’re not Ben Gamla’s only faults. Oklahoma Jewish groups have raised alarms over Ben Gamla, not only because it would violate the separation of church and state, but also because the would-be school’s Florida-based backers “bypass[ed] community consultation” with Oklahoma Jews. In other words, nobody asked for this. Indeed, in the lead-up to the St. Isidore case, Ben Gamla founder Peter Deutsch concluded that Oklahoma’s small Jewish population made the state a poor location for a Jewish charter school. And as Jewish leaders in the state have pointed out, there’s no lack of opportunities for Jewish education in Oklahoma.
So what’s Ben Gamla really after? Again, it seems the main point is to set up a test case, facts on the ground be damned. And Ben Gamla doesn’t even appear interested in hiding the fact that this is nothing more than a scrambled request for a mulligan on St. Isidore. One of Ben Gamla’s board members was also a board member of St. Isidore, and several portions of Ben Gamla’s initial charter application appear to have been hastily copied from St. Isidore’s application and other sources.
What’s more, Ben Gamla’s board apparently failed to complete several necessary application steps, such as completing pre-application training and submitting proposed governing bylaws along with its application. And it submitted multiple conflicting versions of enrollment projections and corresponding budgets.
While Ben Gamla may not be particularly serious about educating children, it’s plenty serious about going to court. Shortly after the Oklahoma Statewide Charter School Board denied Ben Gamla’s deficient charter application, Ben Gamla — backed by the Christian Nationalist legal group Becket Fund — promised to file a lawsuit challenging the denial in federal court. It followed through on that promise earlier this week.
For all their deficiencies, Riverstone and Ben Gamla at least managed to take some steps toward opening a school. The same can’t be said for would-be religious public charter school Wilberforce Academy in Knoxville, Tenn., which filed a lawsuit challenging Tennessee’s requirement that charter schools be nonreligious before even submitting a charter application.
Americans United and allies have intervened in that lawsuit on behalf of several Knox County taxpayers, clergy, and public-school parents. Of course, we’ll defend church-state separation against Wilberforce’s attacks, but it’s worth bearing in mind that this case shouldn’t exist in the first place. Wilberforce is asking the court to weigh in on a pure hypothetical, which courts are not supposed to do.
The Constitution says that the job of courts is to decide actual “cases” and “controversies” arising from real — not imagined — facts. Courts mustn’t weigh in if those facts don’t exist or if they cease to exist (because, say, your school got shut down for operating in a troublingly combustible building in a location zoned for things like marijuana dispensaries). This rule is especially important when it comes to the Constitution’s religion clauses, which exist in large part to minimize religious conflict. When those hungry for a test case rush into court with hypothetical problems, they undermine the religion clauses by generating religious conflict where it wouldn’t otherwise exist.
Make no mistake, lawsuits are an important tool for vindicating rights and resolving constitutional questions. But when litigants (and courts) lose sight of the real world, our divides and conflicts will only deepen.
