“These support systems are what students really rely on,” one girl told the board. “As someone who struggles a lot with being overwhelmed and anxious, sometimes I just need someone to talk to.”

The layoffs will help reduce an $8.6 million budget deficit, due in part to the loss of 350 students. 

Sarah Neville, a board member in the Boston-area district, knows one reason enrollment is down. Under federal law, districts can’t ask whether students are U.S. citizens, but almost 90% of the 5,700-students are Latino and 47% are English learners. The state education agency estimates that the population of English learners in Massachusetts schools has since 2024. Officials from Chelsea and other metro-area districts say as Immigration and Customs Enforcement agents conducted raids in last fall.

“We’re low hanging fruit for ICE because so many of our folks are undocumented,” Neville said. “When they say, ‘We’re going to go target Boston,’ you find the vans actually hanging out in Chelsea.”

The district is among several across the country now confronting the financial impact of the Trump administration’s immigration enforcement efforts. Whether students are absent from school, families have been detained, or they’ve left the district or the country on their own, the empty desks add up.

Districts no longer have federal COVID relief funds to fall back on, and many already saw steep enrollment declines during the pandemic. The Chelsea board is one of asking the legislature for one-time grants to help address the shortfall. With fixed costs like payroll and contracts with vendors, a sharp drop in enrollment “creates chaos,” Neville said.

In Texas, officials from , and several districts in the are among those who say the immigration crackdown has contributed to further enrollment loss and, with it, potential drops in state funding. 

Districts’ heightened concerns over finances come as conservatives increasingly argue that American taxpayers shouldn’t be footing the bill to educate undocumented students in the first place. 

During a heated , members of a House judiciary subcommittee argued that the U.S. Supreme Court should overturn , a landmark 1982 ruling in a Texas case that guaranteed children a right to a public education, regardless of citizenship status.

“The financial costs of Plyler are undoubtedly staggering, clearly representing a significant burden on localities,” said Texas Republican Rep. Chip Roy, who chaired the hearing. “But it isn’t just fiscal costs we should be worried about. Our nation’s classrooms routinely deal with illegal alien students, many of whom know little to no English and may struggle with other learning disabilities.”

Pointing to Census Bureau figures, a from the subcommittee estimated that educating non-citizen students in U.S. schools costs about $68 billion a year. But during the hearing, Democrats highlighted of providing students access to education, like $633 billion paid in state and local income taxes and contributions to the U.S. economy worth more than $2.7 trillion.

The witnesses included James Rogers, senior counselor with the conservative America First Legal Foundation, who called the Plyler opinion ”egregiously wrong from the start” and an example of judicial overreach. He predicted that the current conservative majority on the court would overturn it if given the opportunity. Republicans in like have proposed legislation to collect students’ immigration status. If one of those bills passes, opponents are expected to challenge it in court.

But Rep. Mary Gay Scanlon of Pennsylvania, the ranking Democrat on the subcommittee, said that excluding undocumented students from school or charging tuition would mean “only certain classes of children whose parents can afford to pay are entitled to the blessings of liberty and the hope of a better future.” 

Thomas Saenz, president and general counsel for the Mexican American Legal Defense and Educational Fund, warned that at a time when chronic absenteeism remains above pre-pandemic levels, non-citizen children wouldn’t be the only ones out of school if the court overturned Plyler.

“It will extend beyond the families to peers and ultimately it will be impossible to enforce truancy laws,” he said. “Any child who doesn’t want to be in school will know to simply say ‘I’m undocumented.’ ”

The ‘bottom line’

For now, most Texas districts want to hang on to as many students as possible.

“When you’re a rural school district, every kid has a big impact on your bottom line,” said Kevin Brown, executive director of the Texas Association of School Administrators. “When you lose five or 10 kids, you have to cut programming. You can’t cut teachers, so you have to start looking for other ways to do it.”

He expects to see a request during next year’s legislative session to allow for some “transition period” before funding drops, but “whether something passes is another question.”

In California, where state funding is based on districts’ average daily attendance, Gov. Gavin Newsom last October that would have added immigration enforcement as one of the emergencies that triggers a waiver of the funding rule. The change was unnecessary, he said.

In Minnesota, districts are still hoping for some relief. On their behalf, a national nonprofit to temporarily suspend a state law that requires districts to drop students from the rolls if they’ve been absent for 15 straight days. The legislation allows exemptions for emergencies.

, in which the Trump administration deployed roughly 4,000 ICE agents to the Minneapolis area, “no doubt qualifies as a calamity that would trigger application of the exemption,” leaders of the National Center for Youth Law wrote to state House and Senate leaders last month. 

Fridley Public Schools, outside Minneapolis, has lost 20 students because of the 15-day rule. 

“Some of our children have been in an apartment for 14 weeks and haven’t been able to leave,” Superintendent Brenda Lewis said on a recent webinar. 

Roughly 100 more have left since the surge, possibly taking advantage of the state’s open enrollment policy to relocate to other districts. The loss means a $1 million hit to the district’s $51 million budget. The district also missed out on $131,000 in meal reimbursements from the federal government because low-income students weren’t in school to eat breakfast and lunch, Lewis said. 

Fridley’s enrollment would have been down another 400 students if the district hadn’t quickly implemented a virtual learning program, Lewis said. But federal agents used the device distribution process to apprehend those they suspected to be undocumented, she said. 

“We had ICE agents arresting people because they knew they were coming for the Chromebooks,” said Lewis, whose district is part of against the Trump administration over its policy of allowing immigration enforcement near schools and other “sensitive” locations. “ICE agents will board your buses. They’ll board your vans. They’ll pull the vehicle over and start interviewing children about immigration status. By interviewing, I mean interrogating.”

‘In-your-face presence’

The Trump administration recently such actions in an effort to end a government shutdown affecting the Department of Homeland Security. Julie Sugarman, who studies immigration policy affecting K-12 schools at the Migration Policy Institute, said a “less-aggressive” approach near school grounds would likely lead some missing students to return. 

“The in-your-face presence absolutely is causing people to stay home,” she said.

The Chicago Public Schools last fall saw steep declines in attendance that coincided with , according to by Kids First Chicago, an advocacy group, and the Coalition for Authentic Community Engagement, representing multiple nonprofits. On Sept. 29, the Monday after enforcement activity began, nearly 14,000 students at schools serving high percentages of Latino students were absent, the report showed. 

The district uses enrollment counts from the early part of the school year to make budget and staffing decisions. If students missed school on those days, or if the district eventually dropped students out for extended periods, those absences could affect funding, explained Hal Woods, chief of policy at Kids First Chicago.

District leaders can only estimate how many undocumented students are entering, or leaving, their schools, and that’s a problem, Mandy Drogin, a senior fellow at the conservative Texas Public Policy Foundation, said in testimony before the House subcommittee. She blamed that warned districts against asking for students’ or parents’ citizenship status for enrollment purposes. 

While many English learners are U.S. citizens, she called out districts under state takeover, like and nearby , which have English learner populations above 30%, according to the state. “Illegal students,” she said, are impacting schools as a whole. 

“Teachers are being forced to … do Google Translate on their phones,” she said. “All of these things obviously impact the total education system, and the taxpayers are left holding the bag.”

Rep. Jamie Raskin, a Maryland Democrat, said immigration enforcement affects all students. He pointed to Willmar, Minnesota, about 150 miles west of the Twin Cities and the site of a Jennie-O turkey plant that employs many . It’s the town where ICE agents in a Mexican restaurant and then returned to detain the owners and a dishwasher. 

In December, as rumors of an ICE raid spread, hundreds of kids, including white students, stayed out of school, Superintendent Bill Adams . 

“I remember walking in the hallways going, ‘Holy God, where are all the kids?’” said a district employee who declined to speak for attribution due to the sensitivity of the topic. “It was eerie.”

In October, Adams said enrollment in the 4,400-student district was down by over 170 students, amounting to a loss of more than $4 million. To make up for some of that gap, the district is it used to teach independent living skills, like cooking and doing the laundry, to older students with disabilities. 

“It’s just hit our community really bad,” the employee said.  

President Donald J. Trump, who watched from the gallery Wednesday in unprecedented fashion while the government made its case, signed an on his first day back in office last year banning birthright citizenship for the children of undocumented immigrants. His plan would also exclude babies born here whose parents are temporary residents.

Birthright citizenship was enshrined in the Constitution in 1868 by the 14th Amendment, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” 

Solicitor General D. John Sauer, arguing for the government, told the court he recognized the amendment was adopted just after the Civil War to grant citizenship to those newly freed from enslavement and their children, “whose allegiance to the United States had been established by generations of domicile here.” 

It did not, however, grant citizenship to the children of temporary visitors or illegal aliens, he said. And, Sauer maintained, unlike newly freed people, “those visitors lack direct and immediate allegiance to the United States.”

“For aliens, lawful domicile is the status that creates the requisite allegiance,” he said. “For decades following the clause’s adoption, commentators recognized that the children of temporary visitors are not citizens, and illegal aliens lack the legal capacity to establish domicile here. Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations. It demeans the priceless and profound gift of American citizenship.”

Several of the justices, including Chief Justice John Roberts, appeared skeptical of Sauer’s reasoning, peppering him with pointed questions and casting doubt on key elements of his argument. 

Many believe Trump is likely to lose this constitutional battle, though he has that hinged on presidential powers. Conservatives hold a 6-3 majority, with three of the justices in that bloc — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — Trump appointees from his first term.

Cecilla Wang, the ACLU’s national legal director and lead attorney in the case that involves several statewide ACLUs and other legal advocacy groups, argued on behalf of the mothers and babies who would be affected by Trump’s order. In a less than three-minute opening statement, she said the 14th amendment is critical to our nation’s understanding of itself.

“Ask any American what our citizenship rule is, and they’ll tell you: Everyone born here is a citizen alike,” said Wang, whose Taiwanese parents came to the U.S. as graduate students. “That rule was enshrined in the 14th Amendment to put it out of the reach of any government official to destroy.”

Birthright citizenship was codified and protected by the , which provided that “person[s] born in the United States, and subject to the jurisdiction thereof shall be nationals and citizens of the United States at birth.” 

This came decades after another critically related ruling, the 1898 Supreme Court case , which challenged the citizenship of a Chinese-American San Francisco resident. Ark, who was denied re-entry into the U.S. after visiting his parents in China, was found to be protected by the 14th amendment. 

Wang believes that case bolsters her argument. She said, too, Trump’s executive order would throw the country into chaos. The president left the court minutes into her remarks. 

“The 14th Amendment’s fixed, bright-line rule has contributed to the growth and thriving of our nation,” she said. “It comes from text and history. It is workable, and it prevents manipulation. The executive order fails on all those counts. Swathes of Americans would be rendered stateless. Thousands of American babies will immediately lose their citizenship. And if you credit the government’s theory, the citizenship of millions of Americans — past, present and future — could be called into question.”

While some members seemed more amenable to her arguments, conservative Justice Samuel Alito asked her about babies born in the United States who do not automatically become citizens, including the children of ambassadors, for example. 

“If those who framed and adopted the 14th Amendment had wanted to limit the citizenship test to just those specific groups that you concede fall outside the birthright rule, why didn’t they refer to those groups?” he asked. 

Wang said the answer was baked into the 14th amendment by the language that guarantees citizenship outside a few rare exceptions of those not “subject to the jurisdiction of the United States.”

Gorsuch said Wang had “good stuff on her side.” She, in turn, said the Trump administration’s proposed approach to citizenship contradicts what earlier leaders sought to achieve. 

“We can’t take the current administration’s policy considerations into account … to radically reinterpret the 14th amendment,” Wang said, adding she believed those who ratified it did, in fact, consider future immigration. “Contrary to the government’s arguments now, they wanted to grow this country, make sure we had a citizenry, populate the military and settle the country.”

But Sauer, the solicitor general, said birthright citizenship, as it stands, is “a powerful pull factor for illegal immigration and rewards illegal aliens who not only violate the immigration laws, but also jump in front of those who follow the rules.” 

And, he said, there is another problem. 

“It has spawned a sprawling industry of birth tourism as unaccounted thousands of foreigners from potentially hostile nations have fought to give birth in the United States in recent decades, creating a whole generation of American citizens abroad with no meaningful ties to the United States,” he said. 

When asked whether the government knew how many women came to the U.S. specifically to give birth, Sauer could not provide a solid figure. 

Several of the justices also questioned Sauer about his key argument that established legal domicile must exist to qualify for birthright citizenship, asking whether it referred to the domicile of parents or their offspring.

“Under the minimum definition of domicile,” Alito said, “a person’s domicile is the place where he or she intends to make a permanent home.” 

Normally, Alito said, one would think a person who is subject to arrest and removal could not establish domicile. But, he said, we have a unique situation in the United States where people may live here for years and be subject to deportation yet, “have in their minds made a permanent home here and have established roots — and that raises a humanitarian problem.”

Lower courts on numerous occasions have found Trump’s order unconstitutional and blocked its implementation. Since it was issued, Trump has launched a massive deportation campaign that has harmed students and schools and become with the American people — particularly after federal agents shot and killed two U.S. citizens in Minneapolis in January.

“This is potentially the most important civics lesson of a generation,” said Adam Strom, co-founder and executive director of Re-Imagining Migration. “Ultimately, birthright citizenship is about who gets to claim their place in this country … stripping that in a moment of aggressive immigration enforcement could render (children) stateless.”

Such a person is not recognized as a citizen of any nation and therefore has very limited protection. The U.N. estimated in 2019 that there were more than 4.2 million stateless  people around the world but the actual number is believed to be more than . 

Alejandra Vázquez Baur, a fellow at The Century Foundation, a progressive think tank, and director of the said undoing birthright citizenship would be a “disaster” for hospitals and a “nightmare for families” — regardless of their status — as they would have to prove citizenship for their newborn child to have basic human rights.   

“It’s no coincidence that they’re seeking to strip birthright citizenship protections for U.S.-born children of immigrants while simultaneously attacking the foundational right to education for all granted by Plyler v. Doe,” she said, referring to the 1982 Supreme Court ruling that a child cannot be denied a public education based on their immigration status. 

“Together, these attacks undermine our democracy and threaten to create an underclass of millions of children with uncertain futures and no rights in this country,” she said. “It is fundamentally immoral, unconstitutional, anti-child and un-American.”

The court is expected to render a decision in late June or early July.

In the California case, , the conservative justices reinstated a December district court decision that temporarily blocked schools from keeping such information private or from changing names and pronouns when parents say it violates their religious beliefs. The U.S. Court of Appeals for the Ninth Circuit had granted Attorney General Rob Bonta’s request for an emergency stay while the district court hears the case, and Monday’s order overruled that stay.

The Supreme Court relied on last year’s ruling in in which the justices sided with religious parents who wanted to opt their elementary school children out of lessons related to LGBTQ-themed storybooks. 

“California’s policies will likely not survive the strict scrutiny that Mahmoud demands,“ the order said, adding that “parents who seek religious exemptions are likely to succeed” at the district court level. 

Referencing one of the families in the case, they wrote: “At the beginning of their daughter’s eighth-grade year, she attempted suicide and was hospitalized. Only then did her parents learn from a doctor that she had gender dysphoria and had been presenting as a boy at school.”

U.S. Education Secretary Linda McMahon praised the decision. “Huge win for parental rights in education!” she on X. The administration agrees with many conservative groups that schools have kept parents in the dark about their children’s social transition and should proactively notify them when their child asks to use different pronouns or bathrooms. 

U.S. District Judge Roger Benitez’s temporary injunction said that California schools can’t mislead parents about their children’s gender identity and must prominently display wording that says parents “have a federal constitutional right to be informed if their public school student child expresses gender incongruence.” 

Bonta has argued that the state’s policies, including a 2024 law barring districts from forcing teachers to “out” students, don’t prevent schools from sharing information with parents. But he said Benitez’s blanket ruling — and the Supreme Court’s decision to keep it in place — puts students at risk if they’re not ready to disclose their gender identity. Advocates for LGBTQ students agree.

“In its rush to expand religious influence in public schools, the Supreme Court prioritized religious exemptions over children’s success and well-being and trampled on the rights and futures of transgender students without considering the full facts of the case,” Gaylynn Burroughs, vice president for education and workplace justice at the National Women’s Law Center, said in . 

‘The court is impatient’

That’s the same point that Justice Elena Kagan, one of the three liberals on the court, made in her dissent, which Justice Ketanji Brown Jackson joined. Kagan agreed that “parents have rights” when it comes to their children’s “life choices,” but that the court should wait until the case plays out before the Ninth Circuit. 

“The court is impatient: It already knows what it thinks, and insists on getting everything over quickly,” she wrote. 

If the conservatives wanted to consider the “thorny legal issues” involved, she added, they should agree to hear a Massachusetts case, Foote v. Ludlow School Committee, that makes similar arguments for parental rights.

“By recent count, almost 40 cases raising due process and/or free exercise objections to similar school policies are currently in the judicial system,” she wrote. “By granting certiorari on one (or more) of those cases, the court could ensure that the issues raised by such policies receive the careful, disciplined consideration they merit.”

The court has repeatedly delayed its decision whether to grant or deny a hearing in the Foote case and another one from . Both are scheduled for consideration again this Friday.

In a separate statement concurring with the majority, which Chief Justice John Roberts and Justice Brett Kavanaugh joined, Justice Amy Coney Barrett disagreed that the court was hasty in overruling the Ninth Circuit. 

“Under California’s policy, parents will be excluded — perhaps for years — from participating in consequential decisions about their child’s mental health and wellbeing,” she wrote. 

Teachers from the Escondido Union School District, near San Diego, originally filed the case in 2023, saying the state’s guidance violates their Christian faith. Parents later joined the case. Without giving a reason, the court denied the teachers’ request to set aside the Ninth Circuit’s stay, but Justices Clarence Thomas and Samuel Alito said they would have sided with the teachers as well. Justice Sonia Sotomayor said she would have denied the relief for all of the plaintiffs.

David Mishook, an attorney with F3 Law, which represents California school districts, said that given the Supreme Court’s “strong language,” he wouldn’t be surprised if Bonta drops any challenge to Judge Benitez’s injunction.

While neither Benitez nor the Supreme Court come right out and say that teachers must proactively disclose a child’s gender identity to parents, the order “suggests that teachers, and by extension their employers, now stand at great risk if they do not discuss gender expression with parents.”

The court’s ruling follows a late January decision in which the Education Department that California’s policies violate the Family Educational Rights and Privacy Act, which gives parents the right to inspect their children’s educational records. She pointed to instances in which schools used trans students’ preferred names and pronouns in school databases, but parents would see legal names when they logged in. 

The state risks losing over $5 billion in federal funds if it doesn’t comply with the department’s demands, including allowing districts to pass parental notification policies.

Bonta promptly the department, saying the penalty would cause “imminent and irreparable injury to California.” 

A group of Wisconsin parents, students, teachers, school districts and education advocates are suing the Legislature over the current school funding formula, arguing that the system does not meet the state’s obligation to provide educational opportunities to all students as required by the state Constitution. 

The was filed Monday evening in Eau Claire County Circuit Court by Madison-based nonprofit Law Forward and the Wisconsin Education Association Council, the state’s largest teachers union.

The plaintiffs in the suit are led by the Wisconsin Parent Teacher Association and include five school districts, including Adams-Friendship Area School District, School District of Beloit, Eau Claire Area School District, Green Bay Area Public School District, Necedah Area School District, the teachers union of each respective district, eight Wisconsinites including teachers, parents, students and community members, as well as the Wisconsin Public Education Network. 

The lawsuit names the state Legislature, Assembly Speaker Robin Vos (R-Rochester), Senate Majority Leader Devin LeMahieu (R-Oostburg), and the Joint Finance Committee and its Republican and Democratic members. 

Jeff Mandell, co-founder of Law Forward, told reporters during a press call Tuesday that schools have been doing their best to fully prepare students to be productive and active members of society but that the current funding system is making it almost impossible. 

“These folks are not magicians. They are not Rumpelstiltskin. They cannot turn straw into gold, and we do not have what we need for our schools to thrive,” Mandell said. 

Mandell noted that the Wisconsin Supreme Court has previously considered the way schools are funded in the 2000 case Vincent v. Voight. 

The Supreme Court found in the Vincent v. Voight case, which was initiated by a group of Wisconsin students, parents, teachers, school districts, school board members, citizens and the WEAC president, that the state’s funding formula was constitutional. 

The majority opinion indicated that the Legislature had articulated that an equal opportunity for a sound basic education is “the opportunity for students to be proficient in mathematics, science, reading and writing, geography and history, and for them to receive instruction in the arts and music, vocational training, social sciences, health, physical education and foreign language, in accordance with their age and aptitude.” The opinion also concluded that as long as “the Legislature is providing sufficient resources so that school districts offer students the equal opportunity for a sound basic education as required by the constitution, the state school finance system will pass constitutional muster.”

Mandell said that in the 25 years since the ruling “things have gotten considerably worse, and we are at a point where, for many districts … they are on the verge of crisis.” 

The lawsuit lays out the difference between how Wisconsin schools were funded in the  1999-2000 school year versus the 2023-2024 school year. School funding 25 years ago was comprised of 53.7% state funds, 41.6% local funds and 4.7% federal funding; in 2023-24, the mix had changed to about 45% state, 43% local and 12% federal funding.

“The fault for this crisis lies not at the feet of students, parents, families, teachers, staff, administrators, school districts, or elected board members,” the lawsuit states. “The shortcomings of our public schools are directly traceable to the Legislature’s consistent failures to ensure adequate state funding of public schools and to legislate a rational school finance system that meets constitutional mandates.”

The lawsuit states that school districts across the state are “facing financial crisis” because of expiring federal funding and stagnating state dollars. 

The suit also details the state’s history of funding schools and the increasing reliance on property taxes through school referendums to try to keep up with costs. It also details the ways that the state’s school choice program, which was launched in the 1990s and has grown exponentially over the years, has reduced funding for public schools. 

Law Forward was at the helm of the 2024 lawsuit that ended with the Wisconsin Supreme Court declaring the state’s legislative maps an unconstitutional gerrymander and is in the process of the state’s Congressional maps. 

Mandell said the plaintiffs in the suit include a geographically diverse group to highlight how this is a statewide problem. He said it is possible that other districts will reach out about joining the case and they will “figure that out as we go.”

Joshua Miller, an Eau Claire Area School District parent, told reporters that “the dire need for adequate funding has been made clear to the lawmakers, but they have refused to hear our pleas” 

“The situation is sad, absurd, and it’s infuriating,” he said. “Wisconsin’s current school finance system is broken and this lawsuit, which I am proud to join, would be a way for the courts to force legislators to make a new system that works and actually meets the needs of the students of Wisconsin.” 

Tanya Kotlowski, a plaintiff in the case and superintendent for the Necedah Area School District, said her district is going to referendum for a third time this spring to help fund its operations. In April, the school district plans to ask voters to approve a four-year operational referendum that would provide a total of $5.8 million in order to maintain the district’s current level of educational programming as well as operate and maintain the district. 

Kotolowski noted that she and other school leaders have spent a lot of time advocating on behalf of their schools to lawmakers for additional funding. During the recent state budget cycle, school funding was one of the top issues held by the budget committee.

“Despite all of those efforts, the funding system has not kept up with the needs of our children and the needs of our current realities,” she said. “Our local referendum, some would argue or could argue, has been 100% funding that mandated legal, constitutional obligation.”

According to the lawsuit, the Necedah Area School District has directed over $6.6 million — all of its operational referendum revenue — to its special education fund over the past eight years.

Kotlowski said her district has been underfunded by $13 million for special education costs over the last decade, and that if funding had kept pace with inflation, the district wouldn’t need to go to referendum this year.

Mandell said that referendum requests used to be fairly rare and used when a school district had large projects.

“What we’re seeing now is a system where school districts have no choice but to go to referendum regularly to try to fund basic operations to keep the lights on and to keep payroll flowing, and it’s really a tremendous problem,” Mandell said. 

Referendum requests that allow schools to exceed state-imposed revenue caps through approval from voters became a part of Wisconsin’s school funding equation in the 1990s. Lawmakers implemented school revenue limit caps as part of an effort to control local property taxes. 

The revenue limits used to be tied to inflation, but that was ended in the 2009-11 state budget, leaving increases up to the decisions of state lawmakers and the governor, who have not provided predictable increases budget to budget.

The recent state budget did not invest any additional state dollars into school general aid, in part because lawmakers were upset with Evers’ 400-year partial veto in the prior state budget. The partial veto extended a $325 per pupil school revenue limit increase from two years to four centuries, giving, schools the authority to bring in additional dollars from state funds or property tax hikes. Without the state providing additional funding, many schools have turned to raising property taxes using the school revenue authority to help support their operational costs. 

“I understand there’s a big political debate about that veto, and about that mechanism, we don’t have a position on this. What we’re saying is that the school funding mechanism is not sufficient and is unconstitutional, even with that,” Mandell said.

The state budget did provide additional funding for special education reimbursement, but recent estimates show that the amount of funding will not be enough to provide reimbursement at the promised rates of 42% and 45%. Increasing special ed funding is part of ongoing negotiations between legislative leaders and Evers. 

The lawsuit comes as the legislative session is coming to a close. 

The state Assembly adjourned for the session last week and the Senate will wrap up next month, but the only bills with a chance of becoming law are those that have already passed the Assembly. 

Even if a deal arises out of the current negotiations on property taxes and school funding, Mandell said the problem identified in the lawsuit will still exist. He noted that a proposal from Evers included $450 million towards school general aids — an amount that is $2 billion less than what schools would get if inflationary increases had continued in 2009. Mandell said Evers is not named in the suit because it is the Legislature that is chiefly responsible for appropriating funds. 

“This is not a problem that arose overnight. It has developed over decades, and it’s not a problem that will be solved overnight,” Mandell said. “Any deal that the Legislature and the governor might reach… is not going to solve the problem.”

Mandell said that the plaintiffs in the lawsuit  are not looking for the court to decide on a specific amount of money that the state should provide to schools, but instead want the court to “fully explain and delve into how the finance system works, what the needs are, and to make some of those decisions.”

The lawsuit asks the court for a judgement that declares the Legislature hasn’t fulfilled and cannot “shirk” its constitutional obligation to fund schools at a sufficiently high level to “ensure that every Wisconsin student has an equal opportunity to obtain a sound basic education that equips them for their roles as citizens and enables them to succeed economically and personally in a tuition free public school where the character of instruction is as uniform as practicable.” It calls for the current funding system to be ruled invalid. 

The lawsuit calls for relief that will “establish a schedule that will enable the Court — in the absence of a superseding state law, adopted by the Legislature and signed by the governor in a timely fashion — to adopt and implement a new school finance system that meets all relevant state constitutional guarantees.” 

Mandell said, however, that it likely won’t be up to the court to decide exactly how the state should fund schools. 

“There are almost an infinite number of options for how the Legislature could do this, but what we’re asking the court to do is to look at it and say to the Legislature, not good enough…. then we do expect that the Legislature and the governor will do their jobs,” Mandell said. 

Mandell said that ideally a ruling would give lawmakers the opportunity to make changes in the next budget cycle. The budget process will kick off again in January 2027, after the state’s fall elections which will determine the make-up of the Senate and Assembly as well as choosing a new governor. 

If the Legislature and the governor don’t fix the problem, Mandell said, the court should step in again.

is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Wisconsin Examiner maintains editorial independence. Contact Editor Ruth Conniff for questions: info@wisconsinexaminer.com.

The Oklahoma Statewide Charter School Board voted unanimously against an application Monday for a virtual Jewish charter school, citing the state supreme court’s 2024 ruling that public funding for a religious school would violate state law. As expected, some board members voiced support for Ben Gamla Jewish Charter School Foundation.

“I think our hands are tied,” said Board Member Damon Gardenhire, who said he didn’t see much difference between Ben Gamla’s application and a now-closed Native American charter school that featured a “spiritual component.” 

In a statement responding to the vote, Brett Farley, a member of the proposed school’s board, said organizers plan to challenge the decision in federal court. “Oklahoma families should have the freedom to choose schools that best meet their children’s needs — without losing strong options simply because they are faith-based,” he said.

The Oklahoma Statewide Charter School Board is expected to deny an application for a Jewish charter school Monday, but will likely welcome organizers of the school to take them to court.

Peter Deutsch, founder of the Ben Gamla Jewish Charter School Foundation, and a former Democratic congressman, made his pitch for the school in January, saying that he aims to bring “a rigorous, values-driven education” to Jewish parents in Oklahoma.

“I anticipate that our board would like to grant them the application,” Brian Shellem, the board chair, told The 74. “But we can’t snub our nose at the court either.”

He means the Oklahoma Supreme Court, which ruled against the nation’s first Catholic charter school in 2024. That decision still stands after the U.S. Supreme Court deadlocked over that case last year. The charter board’s likely denial of Ben Gamla’s application is expected to spark another lawsuit, pitting against those who say it would violate the Constitution’s prohibition on establishing a religion. With a case over a proposed Christian charter in Tennessee already in federal court and another religious school in Colorado founded to test the same legal question, there’s little doubt that the nation’s highest court will eventually settle the debate.

“It is hard for me to imagine the court doesn’t take the issue again when it comes to it,” said Derek Black, a constitutional law professor at the University of South Carolina. But after Justice Amy Coney Barrett recused herself in the case over St. Isidore of Seville Catholic Virtual School, resulting in the 4-4 tie, the justices likely in favor of religious charters, he said, “would want a case that was very strong.”

‘Pray and hear Scripture’

So far, the only case to watch is in Tennessee. Wilberforce Academy of Knoxville, a nonprofit that wants to open a K-8 Christian charter school, sued the Knox County school board because the district wouldn’t accept its letter of intent to apply. State law prohibits charter schools from being religious. 

“Students will begin to develop biblical literacy in kindergarten and begin taking catechism lessons by third grade,” according to Wilberforce Academy’s request for a quick ruling in the case. “And they will pray and hear Scripture together in a school assembly every morning.”

As St. Isidore did before them, Wilberforce argues that the nonprofit is a “private actor” and that approving its charter application would not turn it into a government entity.

The Knox County board told the court that it will “most likely” not take a position on the legality of Wilberforce’s argument. On Thursday, the board rejected asking state education Commissioner Lizzette Reynolds to consider granting Wilberforce Academy a waiver so they can open the Christian school.

The Knox board, however, also said the issue of religious charter schools “deserves a thorough examination by the federal courts.” 

Judge Charles Atchley Jr, for the Eastern District of Tennessee, thinks so, too. Last week, he allowed a group of Knox County parents and religious leaders, who oppose Wilberforce’s application, . 

The case, he wrote, has the “potential to reshape First Amendment jurisprudence in the educational context” and it wouldn’t serve the court or parties involved to not have “vigorous advocacy on both sides.”

Amanda Collins, a retired Knox County school psychologist, is among those who have signed up to fight against Wilberforce Academy. She has two children still in the district and one who graduated in 2024. She grew concerned about Wilberforce Academy when she learned the organization didn’t have a history of operating charter schools in the state and feels its attorneys are using the district to “merely force an issue up the ladder to the Supreme Court.”

“In Tennessee, we have plenty of things that are underfunded,” she said. “We don’t need to be wasting our local Knox County taxpayer money on somebody’s agenda that is not intended to promote the education safety and wellness of our public school students.” 

‘The clear constitutional boundary’

Another school that could spark a lawsuit over public funds for religious schools is Colorado’s , which advertises that it offers students a “Christian foundation.” 

The school operates “pretty much just like a charter school” said Ken Witt, executive director of Education reEnvisioned, the board of cooperative educational services, or BOCES, that contracted with the school. 

As , emails between the attorney for the Pueblo County district, which allowed the school to open within its boundaries, and the Alliance Defending Freedom, a conservative law firm, suggest the school was intentionally founded to test the legal argument over whether public schools can practice religion. 

After threatening to withhold state funds because of the school’s religious mission, the Colorado Department of Education funded Riverstone’s 31 students. But the state is also conducting a , which could take another year, before deciding whether it can legally provide money to the school. In the meantime, Riverstone had to close its building last week because of health and safety violations. It’s unclear whether students are learning remotely or in another facility in the meantime.

For now, Colorado Attorney General Phil Weiser, a Democrat running for governor, hasn’t issued an opinion on Riverstone, but his views on St. Isidore, the Oklahoma school, were clear. Last year, he in opposing state funding for the school.

In , he urged the Supreme Court “to preserve the clear constitutional boundary that protects both religious liberty and the integrity of our public education system.”

Oklahoma Attorney General Gentner Drummond, a Republican who is also running for governor, made a similar argument about St. Isidore before both the Oklahoma and U.S. supreme courts. 

But that’s where both he and Weiser split with the Tennessee Attorney General Jonathan Skrmetti. In his , Skrmetti states that categorically excluding faith-based schools from public charter programs violates parents’ rights to freely exercise their religion.

To Ilya Shapiro, director of constitutional studies at the conservative Manhattan Institute, it’s a matter of equity. Higher-income families can move into wealthier neighborhoods or pay private school tuition, he wrote in a on the Wilberforce case. The state, he added, already funds religious schools through education savings accounts. 

“But families who rely on charter schools are told that their options must be secular,” he wrote. 

Black, with the University of South Carolina, said the issue comes down to who authorized the school to begin with. In both Oklahoma and Tennessee, either local or state boards approve charter applications.

“That explicit state involvement, to me, makes it clear that state action is involved,” he said, “and thus the Establishment Clause applies.”

The U.S. Department of Education launched 18 Title IX Wednesday, a day after the Supreme Court heard two challenges to state bans on transgender girls competing in sports consistent with their gender identity.

The probes are based on complaints to the Office for Civil Rights that accuse colleges and school districts of violating the law because they allow trans students to participate on girls’ sports teams.

“We will leave no stone unturned in these investigations to uphold women’s right to equal access in education programs—a fight that started over half a century ago and is far from finished,” Assistant Secretary for Civil Rights Kimberly Richey said in a statement.

The list includes the New York City schools, the Tacoma and Vancouver districts in Washington and the Hawaii State Department of Education. 

The U.S. Supreme Court on Tuesday appeared to support allowing states to decide whether to ban transgender athletes from competing in girls’ and women’s sports — an issue that has dominated the Trump administration’s education policy for the past year.

In two separate cases, attorneys for track athletes from Idaho and West Virginia argued that such restrictions violate trangender students’ constitutional right to equal protection under the law. They say that through medication, these athletes have reduced any sex-based physical advantages that would create unfair competition. The West Virginia case also questions whether the state’s ban violates Title IX’s right to equal educational opportunities for women and girls.

West Virginia’s law treats Becky-Pepper Jackson, a transgender 10th grader, “differently from other girls on the basis of sex,” Joshua Block, an American Civil Liberties Union attorney, told the court. The Bridgeport High School student, he said, took puberty blockers and went through “female puberty.” It’s “absolutely reasonable,” for states to separate teams based on a biological definition of sex, he said, but argued that the states’ position is “invalid as applied to a discrete subset” of people who have mitigated physical advantages.

But the conservative justices seemed reluctant to carve out an exception for trans students, even those who have taken steps to reduce any competitive advantage.  

“If we adopted that, that would have to apply across the board and not simply to the area of athletics,” Chief Justice John Roberts said.

The court’s decision in the case could impact all with similar laws that prohibit trans girls from competing on teams consistent with their gender identity. 

Upon taking office, President Donald Trump moved aggressively to place restrictions on trans athletes and highlight the experiences of those who said they were either injured by a trans competitor or put at a competitive disadvantage. Through executive order, he said Title IX only applies to cisgender women and girls, while the Department of Justice is now suing and over allowing trans students to compete on teams consistent with their gender identity. LGBTQ advocates want the court to base its decision on the 2020 majority opinion in in which the court found that transgender employees are a protected class in the workplace. 

“This is unfair to me and every transgender kid who just wants the freedom to be themselves,” Pepper-Jackson said in a recorded message last week. “I’ve had my rights and my life debated by politicians who’ve never even met me.”

Education Secretary Linda McMahon, who attended the more than three hours of oral arguments, discussed the stakes for many women outside the court. 

“Americans have had enough of women and girls losing opportunities and being subjected to the indignity and danger of unfair competition due to the left’s warped application of federal law,” she said.

The department pressured the University of Pennsylvania, for example, to no longer allow trans women to compete on women’s teams. As part of a , the university erased trans swimmer and issued apologies to swimmers who lost to her.  

Attorney Kathleen Hartnett, who represents Boise State University student Lindsay Hecox, who takes drugs to suppress testosterone, told the court that some trans students might even be at a disadvantage.  They have “this larger frame with weaker muscles and no testosterone,” she said.

But conservative advocates disagree. 

“Physiologically, males have a larger heart, lungs, more bone mass, more muscle mass and are taller than females,” Beth Parlato, senior legal counsel at the conservative Independent Women’s Law Center, told The 74. “It is undisputed that males retain significant physical advantages over females, making sex-based categories essential to fairness and safety in women’s sports.”

‘Treated as individuals’

Inside the court, Hashim Mooppan, principal deputy solicitor general, argued for the Trump administration, saying that denying a “special accommodation” to a trans woman or girl is not discrimination.

But Justice Ketanji Brown Jackson, one of the liberal justices, questioned why Hecox didn’t have a claim. 

“In equal protection law,” she said, “We say all the time things like ‘People need to be treated as individuals and not as just as members of a group.’ ”

Justice Brett Kavanaugh, one of the six conservatives on the court, said he “hates” that trans students might be denied an opportunity to participate in sports. He also questioned whether it’s right to “constitutionalize a rule for the whole country” when the science is still evolving. But making a team or a starting lineup is a “zero-sum game,” he said. “Those things matter to people, big time.”

Observers believe the outcome could rest on how either Roberts or Justice Neal Gorsuch, who wrote the Bostock decision, rule. During Tuesday’s back-and-forth, Gorsuch asked whether transgender status could be considered an “insular class,” considering the history of discrimination against them. But he joined the majority opinion that allowed Tennessee to restrict gender-affirming care for minors. 

‘Not going to be satisfied’

The court heard the arguments in the the U.S. Court of Appeals for the Eighth Circuit is set to take up another federal case involving trans athletes. , a nonprofit that opposes trans students participating in women’s sports, sued Minnesota officials over the state’s policy allowing athletes to compete on teams based on their gender identity.

“Their argument is that Title IX demands exclusion of trans athletes from girls’ teams, which is not going to be our position,” said Brian Dittmeier, director of LGBTQI+ Equality at the National Women’s Law Center, which filed a brief in support of Minnesota. 

The decision in the Eighth Circuit case, he said, is likely to come before the Supreme Court rules in the Idaho and West Virginia lawsuits, and could “inform the narrative” in future cases. The Female Athletes United lawsuit, he said, shows that those opposed to allowing trans athletes to compete with women are “not going to be satisfied with a compromise of letting the states decide.” 

That’s the principle the federal government has long used to investigate and remedy disparities based on race, color or national origin in education and other programs receiving federal funds. But no longer, according to a Attorney General Pam Bondi posted earlier this week. 

The regulation does not “sufficiently serve the public interest” and violates President Trump’s about promoting meritocracy, she wrote. The law, she said, “promises that people are treated as individuals, not components of a particular race or group.”

The provision stems from Title VI of the Civil Rights Act of 1964, which prohibits discrimination in education, housing, health care and transportation. Historically, federal agencies used the law to warn districts that they could lose federal funds if they didn’t comply with orders to desegregate schools. Under the Department of Justice rule, officials could use data to determine whether discrimination exists. 

In a 2014 case, for example, an investigation in New Hampshire showed that under the Manchester district’s policy for assigning students to Advanced Placement and honors courses, Black students were enrolled in those classes at far lower rates. 

While Title VI applies to multiple programs and activities, from access to advanced classes to enrollment procedures, school discipline has been at the forefront of the debate over using data to prove discrimination exists. consistently shows that Black students are disciplined at higher rates than their peers, disparities that districts have been under pressure to address.

Bondi’s move to rescind the 50-year-old rule means that the government will no longer hold schools responsible for any neutral policies or behavior that, according to data, negatively affect students of a certain race or nationality. The action, without offering any opportunity for public comment, aligns with the Trump administration’s push to eliminate diversity, equity and inclusion initiatives from the nation’s schools. Fear of a federal investigation, conservatives argue, can interfere with districts’ ability to manage their schools.

Others argue rescinding the rule decreases the chances all students will receive an equal education.

“This has real-world implications,” said GeDá Jones Herbert, chief legal counsel at Brown’s Promise, a nonprofit that supports efforts to create more integrated schools. Discrimination, she said, isn’t always obvious. “Sometimes we can’t find the fire, and the smoke is enough.” 

A group of former Department of Justice attorneys, who left the administration in part because of its education policies, criticized the move. 

“We ensured children could attend accessible and integrated schools while protecting them from abuse at the hands of police or the juvenile justice system,” they wrote in . “We left because this administration turned the division’s core mission upside down, largely abandoning its duty to protect civil rights.”

The shift in policy comes as the Education Department calls back over 250 civil rights staff, who have been on administrative leave, to handle a mounting backlog of cases. A January , issued before Trump took office, showed that the volume of complaints continues to increase year over year.

‘Ideological weapon’ 

This week’s announcement applies only to the Justice Department, but other agencies, , plan to follow Bondi’s lead. Signaling its intentions, the Education Department has already an agreement, reached during the Biden administration, requiring the Rapid City schools in South Dakota to address discipline disparities.

An Office for Civil Rights found that Native American students in the district were twice as likely as white students to face discipline referrals during the 2021-22 school year and almost five times more likely to be suspended. The district was expected to hire staff to focus on equity in discipline, revise its policies and create a committee that included a member of the Native American community.

Rick Hess, the director of education policy studies at the conservative American Enterprise Institute, called the administration’s new policy a “necessary corrective.”

“The Obama and Biden administrations turned disparate impact into an ideological weapon,” he said.

In 2014, the Obama administration that said schools in which Black and Hispanic students were disproportionately suspended or expelled could be in violation of Title VI — even when those students misbehaved at higher rates. The document warned that even if a policy was “administered in an evenhanded manner,” it could have a “disparate impact.”

Michael Petrilli, president of the conservative Thomas B. Fordham Institute, that the guidance, and less-punitive “restorative” approaches to addressing misbehavior, kept districts from removing disruptive and violent students and robbed other minority students of the chance to learn. 

During the first Trump administration, Education Secretary Betsy DeVos rescinded the document, calling it an example of federal overreach. Under Secretary Miguel Cardona, the department indicated that it would reissue guidance related to discipline disparities, but officials held off. Experts speculated that it would be a politically risky move and that the pandemic had exacerbated behavior issues.

But the absence of explicit guidance didn’t hinder the Biden administration from investigating districts for disproportionality. Last September, Kentucky’s Jefferson County district entered into with the Department of Justice to address racial disparities in discipline. An investigation showed that Black students were disciplined at higher rates and faced harsher consequences than white students for the same offenses.

Joshua Dunn, executive director of the Institute of American Civics at the University of Tennessee, Knoxville, said that according to Bondi’s interpretation, the Obama-era discipline guidance did not comply with the law. 

“Students who suffer the most from disparate impact disciplinary policies are minority students who have their education sabotaged by a few troublemakers who are kept in the classroom,” he said. Those are the students, he said, who will be “the most significant beneficiaries of this change.”

Bondi wrote that the administration tried to find a compromise by requiring schools, for example, to “remedy unintentional discrimination.” 

“But any version of imposing liability for unintentional discrimination is inconsistent with Title VI’s original public meaning,” Bondi wrote. “Regardless, even a modified version of disparate-impact liability would not eliminate the department’s serious legal and policy concerns.”

They were right.

In Tennessee, the nonprofit Wilberforce Academy is suing the Knox County Schools in federal court because the district refuses to allow a Christian charter school. Attorney General Jonathan Skrmetti is on the school’s side. He issued last month that the state’s ban on religious charter schools likely violates the First Amendment. 

“Tennessee’s public charter schools are not government entities for constitutional purposes and may assert free exercise rights,” he wrote to Rep. Michele Carringer, the Knoxville Republican who requested the opinion. 

The legal challenge in Tennessee comes as a Florida-based charter school network prepares to submit an application to the Oklahoma Charter School Board for a Jewish virtual charter high school. Peter Deutsch, the former Democratic congressman who founded the Ben Gamla charter schools, began working on the idea long before the case over St. Isidore of Seville Catholic Virtual School even went to court. The 4-4 tie in May means that an Oklahoma Supreme Court decision blocking the school from receiving state funds still stands. 

“The prior decision shows that there’s an open question here that needs to be resolved,” said Eric Baxter, vice president and senior counsel at Becket Fund for Religious Liberty, a law firm representing the National Ben Gamla Jewish Charter School Foundation. “We hope the court will get it right this time. We hope the federal courts get it right without having to go to the Supreme Court.”

Idaho also confronted the issue earlier this year. The state’s first charter, Brabeion Academy, initially the school as Christian. But it in August as a nonreligious school and will open as such next fall. 

Deutsch, Skrmetti and other supporters of faith-based charter schools base their argument on three earlier Supreme Court rulings allowing public funds to support sectarian schools. They say that excluding religious organizations from operating faith-based charter schools is discrimination and violates the Constitution. But leaders of the charter sector and public school advocates argue that classifying charter schools as private would threaten funding and civil rights protections for 3.7 million students nationwide.

“Unless and until the U.S. Supreme Court takes up a future case and rules otherwise, we advise all charter school associations and public charter schools to adhere to the letter and spirit of the law in their respective states,” Starlee Coleman, president and CEO of the National Alliance for Public Charter Schools, said in a statement.

‘Not on our watch’

When the Supreme Court considered St. Isidore, Deutsch, was prepared to advocate for Jewish congregations to open schools that not only teach their language, but also their faith. He called the case “a historic opportunity” to bring Jewish education to thousands of children.

To Oklahoma Attorney General Gentner Drummond, the debate is settled, for now. In November, he said his office would “oppose any attempts to undermine the rule of law.” 

Americans United, which advocates for maintaining church-state separation, has also issued a warning over the new school. The organization represented parents and advocates in a separate case over the school. 

“Religious extremists once again are trying to undermine our country’s promise of church-state separation by forcing Oklahoma taxpayers to fund a religious public school. Not on our watch,” Rachel Laser, president and CEO, said in a press release.

The legal fight over religious charter schools began in 2023, when the Oklahoma Virtual Charter School Board voted 3-2 to approve a charter for St. Isidore, setting off a closely watched case that spanned two years. At the time, the Jewish Federation of Greater Oklahoma City, a nonreligious group, called the charter board’s decision unconstitutional. Rachel Johnson, the group’s executive director, didn’t return calls or emails requesting a comment on Ben Gamla’s proposal.

None of the members who originally voted on St. Isidore serves on the state’s new Oklahoma Charter School Board. But for one person involved with Ben Gamla’s application, this is familiar territory. Brett Farley is on the proposed school’s board, according to a letter of intent the foundation submitted to the charter board in November.

Farley once held a top position with the and is also executive director of the Catholic Conference of Oklahoma, which focuses on public policy issues involving the church. While preparing the St. Isidore application, with Notre Dame law Professor Nicole Stelle Garnett, whose scholarly work formed the basis of the legal argument for the school.

�Ҳ����Ա�ٳ�’s is that nonprofits running charter schools are like private contractors, and as with other publicly funded programs, can’t be excluded just because they are religious. She’s also close friends with Justice Amy Coney Barrett, who recused herself from the St. Isidore case. Experts speculated that Chief Justice John Roberts sided with the three liberals on the court, resulting in the 4-4 tie.

‘Passion for religious freedom’

The virtual school, the intent letter says, would initially enroll about 40 students, focusing on “college readiness, while developing deep Jewish knowledge, faith and values within a supportive learning community.”

But some are surprised Deutsch isn’t making his bid for a Jewish charter school in Florida, where his existing, non-religious charter schools have thrived.

“I think Florida could be a good option given the new attorney general’s passion for ,” said Daniel Aqua, the director of special projects at Teach Coalition, a nonprofit that advocates for Jewish education

The demand for a Jewish charter school would be much higher in Florida, which has Jewish population of nearly 762,000, compared with about 9,000 in Oklahoma. 

Charter founders in Florida submit their applications to local school districts first. The state recently added as authorizers, but Oklahoma, where organizers directly with the state charter board, offers a more streamlined process. 

‘Public Christian school’

But efforts to create publicly-funded religious schools are not limited to the charter sector. A new school in Colorado, Riverstone Academy, calls itself the state’s “first public Christian school.” Now serving 30 students in Pueblo, south of Colorado Springs, Riverstone is what is sometimes referred to as a “contract” school because districts sign agreements with private organizations to provide education services. In this case, Education reEnvisioned, one of the state’s 21 boards of cooperative educational services, or BOCES, authorized the school. 

In October, the Colorado Department of Education warned Ken Witt, the BOCES’ executive director, that the school’s per-student funding is at risk because it is “not operating in a nonsectarian nature.” The letter also went to District 49, near Colorado Springs, one of Education reEnvisioned’s member districts. 

In a response, Witt wrote that he was “alarmed at the threat” that the school might not receive funding. “We did not and legally cannot discriminate against this school on account of its religious affiliation,” he wrote. Examining Riverstone’s curriculum to determine if the school is truly sectarian, he said, would be “unconstitutionally entangling and discriminatory against different forms of religion.”

Witt told The 74 that funding usually doesn’t flow from the state to a new school until January, so it’s too soon to know whether officials will withhold funds.

‘Keep coming back’ 

“You’re going to see those within the charter sector and outside of it basically taking the same approach” — arguing that private groups delivering religious instruction can’t be denied public funds, said Preston Green, an education professor at the University of Connecticut. 

To Green, Riverstone’s identity as a “contract” school calls to mind a 1982 case, one that Garnett and other proponents of religious charter schools often highlight when they say that charters are not “state actors.” In , the Supreme Court said a Massachusetts private school that received public funds for educating teens with behavior problems did not act under the “color of state law” when it fired six employees. 

The question, experts say, is not if, but when the Supreme Court will eventually see another case about religious public schools Justice Barrett won’t have the same reason to recuse herself, Green said, and he’s not convinced that Roberts would side with the liberals a second time.

The advocates, he said, “keep coming back at this because they think that they’ll get the votes.”

Voters might have thought they settled the question of charter schools in Kentucky last year when a “school choice” amendment failed in all 120 counties.

But the state Supreme Court was told Thursday that no change in the state’s 1891 Constitution is necessary to allow charter schools under a law the Republican-controlled legislature approved in 2022.

Kentucky Solicitor General Matthew Kuhn said the charter school law does not violate the constitutional mandate to “provide for an efficient system of common schools” but would instead improve the system’s efficiency by expanding opportunities.

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The charter school law “fits neatly in our tradition of common schools,” said Kuhn on behalf of Republican Attorney General Russell Coleman. “In our common school system, the status quo can never be good enough.”

Lawyers for an education advocacy group and two local school districts contended the charter school law fails several constitutional tests, including a requirement that tax-funded schools be overseen by elected boards accountable to voters.

Attorney Byron Leet, representing the Council for Better Education and the Jefferson County and Dayton Independent school boards, called the law “the latest attempt by the General Assembly to redirect public school money, public funds to schools operating outside the common school system without the approval of Kentucky’s voters as required by the Constitution.”

The attorney general’s office is asking the Supreme Court to overturn a ruling by Franklin Circuit Judge Phillip Shepherd who struck down the charter school law and enjoined its implementation in December 2023.

Shepherd wrote then that the “policy goals of the legislation are not at issue in this case” but that there “is no way to stretch the definition of ‘common schools’ so broadly that it would include such privately owned and operated schools that are exempt from the statutes and administrative regulations governing public school education.”

Defending the law, Kuhn said Shepherd in his ruling had misapplied the 1989 Supreme Court opinion in Rose v. Council for Better Education, the landmark ruling that paved the way for the Kentucky Education Reform Act.

He said Shepherd’s ruling “treated Rose effectively as a straight jacket that prevents the legislature from meaningfully changing the common school system. Rose, however, requires the General Assembly to continually strive to improve on the status quo.”

Also arguing in support of the charter school law was attorney Paul Salamanca, representing Gus LaFontaine who is seeking to open a charter school in Madison County under the 2022 law.

‘Outside looking in’

In response to questions from the justices about charter schools being allowed to turn away students when their enrollment limit is reached, Salamanca said “that’s a good problem” because it’s a sign the school is filling a need. “And HB 9 (the charter school law) has a solution. You can start another school and another school. They can keep starting …  if that’s what people want.”

Both Kuhn and Salamanca told the court that 45 states have charter schools, including all the states bordering Kentucky, and praised their performance. They also likened charter schools to magnet schools in Louisville and Lexington that specialize in arts or academic rigor, saying charter schools would focus on serving at-risk youngsters who are not being well served in their current schools.

“Kentucky kids are really on the outside looking in on what has been a resounding success, especially in urban areas,” Kuhn said. “And so I really ask the court not to leave Kentucky kids on the outside looking in for this important educational development.”

Leet disputed the success of charter schools. “Let me just say there is nothing remotely resembling a consensus that charter schools are a wonderful thing. But frankly, I don’t think that’s the issue.” He said the questions before the court hinge on more than a century of legal precedent.

A provision in the law allows school boards in districts with fewer than 7,500 students to veto charter schools. Justice Angela McCormick Bisig questioned whether the provision would create discrepancies in offerings available to students across the state.

Kuhn and Salamanca said charter schools could not be religious and would have to follow numerous regulations including hiring only certified teachers, providing free or reduced-priced meals and following compulsory attendance laws.

Justice Michelle M. Keller in her questions focused on the potential harms from diverting money from existing schools into charter schools that “parents or the public at large who are actually paying the taxes have no control over. … We’re going to be paying the taxes through our property assessment tax we pay now, but we will have zero control over who administers the charter schools,” Keller said, in contrast to elected local boards who now oversee school districts.

‘Million dollar question’

Justice Pamela Goodwine asked what she called the “million dollar question,” noting that since the charter school law was enacted and enjoined, the General Assembly had put on the ballot an amendment giving voters the opportunity to “empower the legislature to use public funds for charter schools.”

“Should that impact our decision, or should we just ignore the nearly two thirds of the voters who do not wish to have taxpayer funds used in this manner?” Goodwine asked.

Salamanca acknowledged that if voters had approved the amendment “we wouldn’t be here today.”

But he contended that charter schools as they would be governed and operated under the Kentucky law meet constitutional muster.

“The referendum asked whether the people of Kentucky supported the idea of the General Assembly appropriating money for schools outside the system of common schools. We are not outside the system of common schools.”

Goodwine drew a flutter of laughter when she said, “So did the legislature not know how to word the amendment on the ballot or were they trying to mislead the voters?”

The Supreme Court held oral arguments at Centre College’s Norton Center for the Arts two days this week.

is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Kentucky Lantern maintains editorial independence. Contact Editor Jamie Lucke for questions: info@kentuckylantern.com.

OKLAHOMA CITY — An Oklahoma County lawsuit challenging a Catholic charter school has been dropped following the school’s failed appeal to the U.S. Supreme Court.

The upheld an Oklahoma Supreme Court decision against permitting the country’s first religious charter school to begin operating in the state with taxpayer funds.

While Catholic leaders, a small state agency and Attorney General Gentner Drummond , a separate lawsuit opposing the religious school . The coalition of local parents, faith leaders and public education advocates who filed the Oklahoma County case announced Monday they have their lawsuit in light of the higher court decisions.

The plaintiffs and their legal counsel — who include attorneys from the American Civil Liberties Union, Americans United for Separation of Church and State, and the Freedom from Religion Foundation — declared victory while dropping their case.

“We’re pleased that the courts stopped this direct assault on public education and religious freedom,” said Daniel Mach, of the ACLU. “ Public schools must remain secular and welcome all students, regardless of faith.”

The Oklahoma Parent Legislative Advocacy Coalition was the first plaintiff in the lawsuit. Chairperson Misty Bradley said the group is grateful for those who supported their case and for the attorney general’s “successful efforts to uphold Oklahoma’s constitution and protect its taxpayers and public schools.”

Officials from the Archdiocese of Oklahoma City and the Diocese of Tulsa first applied to open St. Isidore of Seville Catholic Virtual School in 2023. Later that year, the Oklahoma Statewide Virtual Charter School Board, a small state agency that oversaw online charter schools, approved the application to open St. Isidore, permitting it to operate with taxpayer funds.

St. Isidore would have offered an online education to students in all parts of the state. Although students of any religion or no faith could have attended the school, St. Isidore would have taught Catholic doctrine and functioned according to church beliefs.

The Oklahoma County lawsuit was the first to be filed against the school, followed by the attorney general’s request that the state Supreme Court intervene. The state Supreme Court that a religious charter school would be unconstitutional.

Both St. Isidore and the Oklahoma Statewide Virtual Charter School Board appealed the decision to the U.S. Supreme Court, which agreed to hear the case in May. 

The eight justices who heard the case deadlocked at 4-4, which allowed the state Supreme Court’s decision to stand.

Catholic leaders, who did not immediately comment on the Oklahoma County case Monday, said they are exploring other options to provide an online Catholic education.

Gov. Kevin Stitt, a supporter of St. Isidore, said the matter of publicly funded religious charter schools is “far from a settled issue” and suggested it would reach the U.S. Supreme Court again.

is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Oklahoma Voice maintains editorial independence. Contact Editor Janelle Stecklein for questions: info@oklahomavoice.com.

In two cases from and , trans girls challenged state bans that would have prevented them from competing on women’s teams. Lower courts sided with the students, allowing them to continue competing on their existing teams as their cases progressed.   

Encouraged by the Trump administration’s aggressive actions — and the court’s recent ruling upholding Tennessee’s ban on gender-affirming care for trans youth — conservatives see the court’s decision to hear the cases as an opportunity to settle a heated national debate and say definitively that Title IX does not pertain to gender identity. 

The Independent Women’s Forum called the news “a watershed moment for women and girls across America.” 

Advocates for LGBTQ students want the lower court decisions to stand. The U.S. Court of Appeals for the Fourth and Ninth circuits said Lindsay Hecox, a Boise State University student, and Becky Pepper Jackson, now in high school, would likely succeed in their arguments against the states.

With its 2020 , Idaho became the first state to bar trans girls from playing sports consistent with their gender identities. Idaho’s law includes a provision that requires students to submit to a physical exam to verify their sex in the event of a dispute. That’s a “broader concern” for all girls, said Brian Dittmeier, director of LGBTQI+ Equality at the National Women’s Law Center.

West Virginia’s came a year later. Twenty-five other states have , according to the Movement Advancement Project; two states, Virginia and Alaska, have regulations that also exclude trans girls from girls’ sports. President Donald Trump and Education Secretary Linda McMahon have further elevated the issue with efforts to withhold federal funds from blue states and schools that include trans girls in female sports. 

“The dignity afforded to transgender people is under attack,” Dittmeier said. A ruling in favor of West Virginia and Idaho, he said, would “provide opportunities for states to justify discriminatory laws.”

The court’s decision to hear the cases came the same week the University of Pennsylvania, under pressure from McMahon, to no longer allow trans women to compete on women’s teams. As part of the deal, the university erased trans swimmer and issued apologies to swimmers who lost to her.  

States not backing down

The administration’s case against Maine over its will go to trial next year, and California on Monday its trans-inclusive sports policies or issue apologies. The state drew in May when a trans girl took gold in two events at a state track and field championship. 

The state, however, also created a temporary rule that allowed other girls to compete even if they did not initially qualify. The rule allowed cisgender girls to earn whatever medal they would have received if trans athletes had not competed. As a result, A.B. Hernandez, the trans competitor, shared the podium with other first-place winners. 

That’s the kind of accommodation more states might explore, depending on the outcome of the cases, said Doriane Coleman, a Duke University law professor. She supports , but thinks that elite sports require special consideration.

She argued that while it’s hard to justify excluding a trans girl from afterschool sports teams, restrictions make sense in competitive athletics. 

“We’ve been in a period where trans girls, their parents, their doctors and their coaches haven’t been allowed, by the advocates, to want anything other than being in girls and women’s sports,” she said. 

She pointed to showing that while puberty blockers and hormones diminish some of the physical advantage trans female athletes have over cisgender girls, “the overall advantage is always retained.” 

Others argue that there’s to say trans girls have a consistent advantage and that socioeconomic issues, such as access to better coaching and training opportunities, also play a role.

The Biden administration tried to strike a compromise in the debate with a draft of a Title IX sports rule in 2023. It would have allowed elementary-age students and most middle schoolers to play sports consistent with their gender identity. In high school, the plan said districts could make a case for excluding trans athletes if they could show how that decision would have achieved an “important educational objective.” Officials the proposed rule before Trump took office.

Just days after his inauguration, Trump signed an executive order saying that Title IX — and the federal government in general — recognizes only two sexes and that they can’t be changed. 

Now the Supreme Court, which said in 2020 that discrimination against LGBTQ employees on the basis of sex is wrong in the workplace, will wrestle with the issue. Both Idaho and West Virginia ask the court whether requiring students to compete with the sex they were assigned at birth violates the Constitution’s guarantee of equal protection. The West Virginia case also asks if Title IX allows states to exclude trans girls from girls’ sports.

Dittmeier, at the National Women’s Law Center, said there are clear differences between the trans sports cases and In that case, the court upheld a ban on gender-affirming care for trans youth, allowing states to make their own decisions on the issue. Advocates for trans youth argued that the treatments can be medically necessary and that a ban violates the Equal Protection Clause.  

When the court ruled in favor of Tennessee, it didn’t consider whether the law discriminated against children and teens based on their sex. The court accepted the state’s argument that the ban was based on age or how puberty blockers or hormones were used.

The court won’t be able to avoid the issue of sex in the sports cases. The states, Dittmeier said, have to “meet a higher burden to justify the discriminatory action.” Pepper-Jackson, for example, has an amended birth certificate and has identified as a girl since the third grade. When the Fourth Circuit ruled in the case last year, Judge Toby Heytens wrote “Offering B.P.J. a ‘choice’ between not participating in sports and participating only on boys teams is no real choice at all.”

The 14th Amendment has long been interpreted to guarantee the right of citizenship to nearly all children born on U.S. soil. Three district courts concluded Trump’s Jan. 20 executive order taking away that right was likely unlawful and issued universal preliminary injunctions barring the order from taking effect.

In a 6-3 vote Friday, the high court’s conservative majority found the lower court judges overstepped. 

“When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too,” reads the majority opinion written by Justice Amy Coney Barrett. 

The court ruled that Trump’s birthright order would not go into effect for 30 days. During that time, the possibility exists that the plaintiffs could successfully reargue for another nationwide injunction under the new rules set by the Supreme Court. But if they fail, birthright citizenship may no longer be automatic in the 28 states that have not challenged the president’s directive.

Trump, appearing in the White House briefing room Friday, said “the Supreme Court has delivered , the separation of powers and the rule of law.” 

The decision does not address the constitutionality of Trump’s move to end birthright citizenship, considered settled  law for nearly 160 years. But it comes at a time when the president is aggressively trying to extend his powers through a barrage of executive orders that now can no longer be as forcefully blocked across the country by a single federal judge who deems them unlawful or unconstitutional. Judges have issued since Trump took office for a second term in January, the Associated Press reported.

It also coincides with the administration’s far-reaching and controversial immigration enforcement campaign that has targeted and swept up those without secure legal status, including students. Educators and advocates are particularly concerned about the fate of young children. 

“The timing could not be worse, with increased ICE activity across the country,” said Adam Strom, executive director of Re-Imagining Migration. “As educators, this makes our jobs even harder. When you fear that your citizenship can be taken away, it’s very hard to learn.”

The ruling came just days after the Supreme Court decided on Monday to to countries other than those in which they were born. Immigrant advocates say both decisions run counter to core American values. 

David C. Baluarte, CUNY School of Law professor and senior associate dean for academic affairs, said if Trump is able to implement his birthright order, some children born in the United States to undocumented parents or those temporarily in the U.S. would be in great jeopardy.

“That means they will be an undocumented immigrant here, and everywhere, in perpetuity — or unless they can convince some country to give them citizenship,” Baluarte said.

Walter Olson, senior fellow at the right-of-center Cato Institute, said now is a “particularly bad” time for the high court to weaken a critical means to check the power of a “scofflaw administration.” 

Olson said the president, through this particular directive, signaled from the outset of his second term that he was seeking to be “very radical” in his authority. He said the birthright issue was a remarkable choice because it was not at all up for debate. 

“The law was very clear on behalf of birthright citizenship,” Olson said. “So, the executive order deserved the immediate unpopularity and outrage that came with it. It’s settled law.” 

reads: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” Trump argued it “has always excluded” people born in the United States but not “subject to the jurisdiction thereof,” including those whose mother was unlawfully present in the country and whose father was not a citizen or lawful permanent resident at the time of the child’s birth. 

This same restriction applies to those children born to mothers whose presence in the U.S.  is lawful but temporary, including those visiting under the Visa Waiver Program or on a student, work or tourist visa — if the father is also not a citizen or lawful permanent resident, Trump contends.

Margo Schlanger, law professor and director of the Civil Rights Litigation Clearinghouse at the University of Michigan Law School, said the Supreme Court left open three pathways through which the lower courts can block nationwide policies by the Trump administration they believe to be unlawful.

The first is through a lawsuit filed against the government by a state. The second involves a nationwide class action lawsuit, which can be cumbersome, complicated and time consuming: It’s often difficult to prove any group of people have enough in common to constitute a class. The third would allow a lower court to “set aside” a rule it deems unlawful under the . 

Schlanger notes that every one of the three remaining pathways has “major” procedural obstacles. She predicts that the state plaintiffs will go back to their district courts and argue that even under these new Supreme Court rules, they still have grounds for a nationwide injunction because that is the only way to guarantee complete relief from an unlawful executive order. 

At the same time, she said, in one or more of the other cases, private plaintiffs might try to expand to a class. Both or either type of case could land the issue back before the Supreme Court — not for procedural arguments, but to decide the issue on its merits. 

“I don’t expect the Trump administration would win at that point,” Schlanger said. “What they were doing is using this case as an opportunity to restrict the authority of the non-Supreme Court federal courts.” 

Randi Weingarten, president of the American Federation of Teachers, said Friday’s decision leaves Americans with one less tool to fight an “out-of-control” executive branch. 

“Today, the justices have kneecapped the lower courts’ ability to protect Americans from Trump’s most pernicious policy abuses, making it far more difficult to resolve key questions by requiring additional litigation,” she said in a statement. “People need courts to protect them from this or any other administration wreaking havoc on our nation’s laws and Americans’ lives.”

In a 6-3 ruling, the conservative justices said the Montgomery County Public Schools must reinstate its opt-out policy. The opinion puts districts nationwide on notice that parents should have a greater say over whether their children are exposed to views that conflict with what they learn at home. 

“We conclude that the parents are likely to succeed in their challenge to the board’s policies,” Justice Samuel Alito wrote for the majority. “A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill.”

The case, , now returns to a lower court, which will consider whether the district violated the parents’ First Amendment rights. Eric Baxter, an attorney with the Becket Fund for Religious Liberty, which represented the parents, said he expects the district to settle.

“The court’s ruling clearly will extend through the end of this case,” he said. “I don’t think there are any facts the school board can produce that will change the court’s mind.” 

In , the district said it “will determine next steps and navigate this moment with integrity and purpose.”

‘The assault on books’

In a dissent, Justice Sonia Sotomayor expressed sympathy for district officials’ decision to stop allowing families to opt out. 

“The result will be chaos for this nation’s public schools” and “impose impossible administrative burdens on schools,” she said in the minority opinion, joined by Justices Ketanji Brown Jackson and Elena Kagan. What would happen, she asked, if a school had to alert parents any time a lesson or story might contradict what parents believe. “Next to go could be teaching on evolution, the work of female scientist Marie Curie, or the history of vaccines.”

PEN America, a free speech organization that advocates against restrictions on books, criticized the ruling, saying that it lays the “foundation for a new frontier in the assault on books of all kinds in schools.” 

The case reflects an ongoing clash between efforts to represent LGBTQ families in the curriculum and the rights of religious parents. The families who sued — Muslim, Catholic and Orthodox Christian — argued that simply having the books in the classroom offended their beliefs. But rather than demanding the district remove them outright, they asked that their children be allowed to leave class when teachers read the books. The Trump administration, 26 GOP-led states and 66 members of Congress sided with the parents.

“This ruling is more than just a legal win. It is a moral and spiritual triumph that acknowledges the sacred responsibility entrusted to parents,” said Billy Moges, a Christian mother of three and board member for Kids First, an advocacy group that formed to oppose the district’s move.

In a call with reporters Friday, Baxter called the ruling “a win-win” because it shows parents with religious disagreements “don’t get to veto everyone else’s practices.”

In 2022, the 160,000-student Montgomery district added LGBTQ inclusive books like “Uncle Bobby’s Wedding,” about a girl’s uncle who marries another man, and “Born Ready,” about a transgender boy, to its elementary curriculum. In March 2023, officials announced they would end their policy of allowing parents to opt their children out of listening to the stories and any classroom discussions about the books. They argued that the policy applied to all parents, not just those wanting opt outs for religious reasons. 

The books were not intended to influence students’ beliefs about sexual orientation and gender identity, officials argued, but to reflect the diversity of the community. That didn’t satisfy the parents who sued, some of whom left the district over the issue.

“I would have loved to keep my children in public school, … but I just didn’t have that choice,” Moges told The 74 before the oral arguments in April. 

‘Need not wait for the damage’

The conservatives rejected the U.S. Court of Appeals for the Fourth Circuit’s opinion that there was insufficient evidence of how teachers were actually using the books in the classroom to determine whether students were coerced into adopting the views they represented. 

“When a deprivation of First Amendment rights is at stake, a plaintiff need not wait for the damage to occur before filing suit,” Alito wrote. The books, he said, “are designed to present the opposite viewpoint to young, impressionable children, …present same-sex weddings as occasions for great celebration and suggest that the only rubric for determining whether a marriage is acceptable is whether the individuals concerned ‘love each other.’ ” 

The ruling came a day after the of the court’s landmark ruling in that made gay marriage legal nationwide. Alito, along with Chief Justice John Roberts and Justice Clarence Thomas, dissented from the majority in that case. 

In the Mahmoud ruling, the court also shot down the suggestion — one that Jackson elaborated on during oral arguments — that parents who don’t like what public schools teach can put their children in private school or homeschool them.

“Public education is a public benefit, and the government cannot ‘condition’ its ‘availability’ on parents’ willingness to accept a burden on their religious exercise,” Alito wrote.

The ruling means that schools will have to give parents, especially those with young children, more advance notice when lessons are planned that touch on religious beliefs.

“The court drew a clear line: simple exposure to ideas is allowed, but instruction that pushes a particular moral viewpoint — especially without room for dissent — can cross into a constitutional burden,” said Asma Uddin, a Georgetown University law professor who focuses on religious liberty.  

Some faith leaders argue the books never should have been viewed through a religious lens and that the court’s decision will further marginalize LGBTQ students and families at a time when the Trump administration is seeking to remove their legal protections.  

The ruling “is just the latest example of religion being used as a tool of discrimination and misappropriated to harm our neighbors,” Rev. Shannon Fleck, executive director of Faithful America, a Christian social-justice organization, said in a statement. “The truth is that there is no scripture or religious doctrine that denies the existence of LGBTQ people.”

The two new Texas laws are part of a broader push this year as Republican lawmakers in pursue bills that bolster the presence of religion in public schools — legislation critics contend violates the Constitution. The Establishment Clause of the First Amendment states “Congress shall make no law respecting an establishment of religion,” or favor one over another. Proponents of the policies in Texas and other conservative states have framed the laws as a matter of religious freedom and believe the Supreme Court is on their side. 

On the same day Abbott took those steps to legislate religion in public schools, a federal appeals court in New Orleans found a similar law requiring Ten Commandments displays in Louisiana classrooms was unconstitutional.

In Texas, and throughout the South in particular, the new laws have garnered overwhelming support from the public, the shows. While 52% of adults nationally said they favor allowing teachers to lead prayers that refer to Jesus, 81% felt that way in Mississippi and 61% did in Texas. In the Lone Star State, 38% of adults opposed having teachers lead Christian prayer. 

The latest results are “a lot higher than what we’re used to seeing” among Americans who “want to see the end of church-state separation or public displays [of the Ten Commandments],” Chip Rotolo, a research associate at Pew focused on religion, told The 74. 

Views on Christian prayers in public school, by state

% who say they oppose/favor allowing public school teachers to lead their classes in prayers that refer to Jesus

Note: The blue and orange bars show the confidence intervals around each estimate at a 95% confidence level. In the 16 states with unbolded names, the shares saying they favor and saying they oppose Christian prayers in public schools are not significantly different.
Source: Religious Landscape Study of U.S. adults conducted July 17, 2023-March 4, 2024

Jonathan Covey, the policy director at the nonprofit lobbying group Texas Values, told The 74 he wasn’t surprised by the survey results as people turn to religion as an “opportunity for moral clarity” and to find “comfort and encouragement in difficult times.” 

“The country wanting to see the involvement of religion in civic society, that has been a good thing, and we’ve seen that the Supreme Court has said that the Establishment Clause doesn’t demand a strict government neutrality towards religion,” Covey said. “Actually to the contrary, it’s always been understood that religion has a place in American civic society.”

Texas Values lobbied the state legislature to get the new laws across the finish line. One requires a 16-by-20-inch poster of the Ten Commandments be displayed in every public school classroom statewide. The second allows public schools to provide students and educators time during the school day to pray or read the Bible or other religious texts.  

Jonathan Saenz, the group’s president, called the new Ten Commandments requirement “a Texas-sized blessing,” noting in a statement that it “stands shoulder to shoulder with partner organizations” and is prepared to fight “against any court challenges brought against it.”  

Americans United for Separation of Church and State, a nonprofit that opposes government policies intertwined with religion, over the Texas law requiring the Ten Commandments be displayed in classrooms. The group has against a similar Arkansas requirement signed into law in April. In that lawsuit, seven Arkansas families with children in public schools — and who identify as Jewish, Unitarian Universalist, Humanist, agnostic, atheist and nonreligious — allege the law imposes one religious perspective on all students. 

Meanwhile, a three-judge panel of the Fifth Circuit Court of Appeals, considered among the nation’s most conservative, issued blocking Louisiana’s Ten Commandments law. The judges found the requirement to install a Protestant version of the commandments violated the Establishment Clause. 

Constitutional attorney Andrew Seidel, who serves as vice president of strategic communications at Americans United for Separation of Church and State, said the Fifth Circuit’s ruling made clear that “the separation of church and state is the best protection for religious freedom that we have.”

“These Ten Commandments displays are meant to tell the viewer — the captive kindergartener or third grader or seventh grader — which God is approved by the government, which God to pray to, which religion is correct,” Seidel told The 74. “That is inappropriate for a public school classroom, as inappropriate as it is clear that that tells the Buddhist students that they’re wrong, the Muslim kid that their religion is false, the Hindu child that their gods are fallacious, and the non-religious and atheist and agnostic kids are told by the state they’re misguided.” 

Religion is partisan

Results from the Pew study reflect a political split on support for the separation of church and state. Opposition to teacher-led prayer at school was strongest in Democratic strongholds like Massachusetts and California and highest in Washington, D.C., at 69%. Across 22 states, majorities of adults supported school prayers led by teachers. Opponents were in the majority in 12 states and the District of Columbia, and in 16 states, the share of respondents who supported school prayer was not statistically different from those in opposition. The nationally representative survey of nearly 37,000 U.S. adults, taken between July 2023 and March 2024, has a margin of error of plus or minus 0.8 percentage points. 

Rotolo, the Pew research associate, said he found the regional patterns particularly interesting. While support was strongest in the South, “you see right down the whole West Coast, most people oppose seeing Christian prayer in school.”

Pew , when 46% of adults said teachers should not be allowed to lead students in any kinds of prayers, a practice that saw support at the time from just 30% of respondents. However, 23% said they had no opinion on the issue. The latest survey didn’t give respondents an opportunity to choose “neither.” 

“Just by posing the question differently, we actually see some different results,” Rotolo said, acknowledging that the change could also reflect a shift in public opinion over the last four years. It’s also possible that some respondents who said they support school prayer in the recent survey “may not have particularly strong opinions about this” and may have chosen “neither” if given the option. 

Rotolo said the favorability of teacher-led prayer in public schools was dominant among Republicans, at 70%.  Just 34% of Democrats were in support. Older Americans were also significantly more likely to allow educator-led prayers in schools than recent high school students. 

Support also varied drastically between racial groups. Among Black respondents, 67% supported teacher-led prayer compared to 50% of white adults. Just 36% of Asian Americans were in favor. 

Seidel, of Americans United for Separation of Church and State, said he wasn’t particularly surprised to see the Pew survey results, in part because it reflects a “coordinated assault on the separation of church and state right now” amid attempts by lawmakers across the country “to promote Christian nationalism.” 

“Those folks in the minority, whether it be religion or nonreligious, are the biggest supporters of separation of church and state because they know what it is to have a government impose their religion on them,” Seidel said.

Meanwhile in 2023, in the nation to allow school districts to hire religiously affiliated chaplains to provide counseling services to students. As of April, has hired a full-time religious chaplain while more than two dozen others have opted out of the measure. In 2021, Texas lawmakers required schools to display any “In God We Trust” signs donated to them by private organizations, and in 2024, the State Board of Education that relies heavily on biblical teachings. 

The efforts to bolster religion in schools, including in Texas and Louisiana, could again appear before the Supreme Court, which has a 6-3 conservative majority. In 1980, the high court be displayed in classrooms, finding the displays served no secular purpose and ran afoul of the First Amendment. 

This time, Republican lawmakers are banking on a more favorable court makeup. In 2022, the Supreme Court found the First Amendment protected a Washington high school football on the field after games. Last month, an evenly divided Supreme Court blocked the opening of a religious charter school in Oklahoma, which would have been the nation’s first. If Justice Amy Coney Barrett had not recused herself in that case, some believe there would have been a majority permitting the school.

Covey, of the nonprofit Texas Values, said recent Supreme Court opinions have begun to abandon the 1980 opinion against the Ten Commandments displays in Kentucky schools. The court’s opinion upholding the Washington football coach’s right to pray on the field, he said, was “the nail in the coffin.” 

The U.S. Supreme Court, in a potential landmark decision, upheld Tennessee’s law prohibiting gender affirming care for minors, saying children who seek the treatment don’t qualify as a protected class.

In United States v. Skrmetti, the high court overturning a lower court’s finding that the restrictions violate the constitutional rights of children seeking puberty blockers and hormones to treat gender dysphoria. The U.S. Court of Appeals overturned the district court’s decision and sent it to the high court.

The court’s three liberal justices dissented, writing that the court had abandoned transgender children and their families to “political whims.”

Tennessee lawmakers passed the legislation in 2023, leading to a lawsuit argued before the Supreme Court last December. The federal government, under the Biden administration, took up the case for the American Civil Liberties Union, Lambda Legal and three transgender teens, their families and a Memphis doctor who challenged the law, but the U.S. Department of Justice under President Donald Trump dropped its opposition.

In its ruling, the court said that the plaintiffs argued that Senate Bill 1 “warrants heightened scrutiny because it relies on sex-based classifications.” But the court found that neither of the classifications considered, those based on age and medical use, are determined on sex.

“Rather, SB1 prohibits healthcare providers from administering puberty blockers or hormones to minors for certain medical uses, regardless of a minor’s sex,” the ruling states.

The ruling says the application of the law “does not turn on sex,” either, because it doesn’t prohibit certain medical treatments for minors of one sex while allowing it for minors of the opposite sex.

The House Republican Caucus issued a statement saying, “This is a proud day for the Volunteer State and for all who believe in protecting the innocence and well-being of America’s children. Tennessee House Republicans are pleased by the court’s courage to stand firm against ideology that denies biological reality. The sterilization and disfigurement of children will no longer be normalized. As we celebrate the precedent set by this decision, we remain committed to leading the nation in safeguarding the health, safety and future of all children.”

Senate Majority Leader Jack Johnson, who sponsored the bill, said he is grateful the court ruled that states hold the authority to protect children from “irreversible medical procedures.”

“The simple message the Supreme Court has sent the world is ‘enough is enough,’” Johnson said in a statement.

The Tennessee Equality Project, an LGBTQ advocacy group, expressed dismay at the decision: “We are profoundly disappointed by the U.S. Supreme Court’s decision to side with the Tennessee legislature’s anti-transgender ideology and further erode the rights of transgender children and their families and doctors. We are grateful to the plaintiffs, families, and the ACLU for fighting on behalf of more than across the nation.”

The group said gender-affirming care saves lives and is supported by medical groups such as the American Academy of Pediatrics and the American Medical Association.

The court also rejected plaintiffs’ argument that the law enforces “a government preference that people conform to expectations about their sex.” 

The court found that laws that classify people on the basis of sex require closer scrutiny if they involve “impermissible stereotypes.” But if the law’s classifications aren’t covertly or overtly based on sex, heightened review by the court isn’t required unless the law is motivated by “invidious discriminatory purpose.”

“And regardless, the statutory findings on which SB1 is premised do not themselves evince sex-based stereotyping,” the ruling says.

is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Tennessee Lookout maintains editorial independence. Contact Editor Holly McCall for questions: info@tennesseelookout.com.

Now Christian schools in Maine, where the case originated, want the courts to go even further. 

They object to a state law that requires them to accept all students, including those who don’t follow their religion, have disabilities or identify as LGBTQ. The U.S. Court of Appeals for the First Circuit heard the case in January.

“This moral panic over letting religious schools be religious — even if they’re receiving tuition subsidies — needs to end,” said Adele Keim, senior counsel with the Becket Fund for Religious Liberty. The nonprofit law firm represents St. Dominic Academy in Auburn, Maine, which sued over the rule along with CrossPoint Church, which operates . 

The nondiscrimination law, schools say, prevents them from participating in “town tuitioning” — a program that picks up a student’s private school costs if there’s no public option in their community. 

The state argues that it’s only asking religious schools to comply with the same rules public and secular private schools follow.

“The schools are asking for special treatment,” said Alexandra Zaretsky, litigation counsel for Americans United for Separation of Church and State. The nonprofit advocacy group submitted a brief to the court in support of Maine’s position. “It should be the state’s prerogative to say ‘If you’re getting funding from the state, then you have to follow our generally applicable laws.’ ”

Most states with voucher programs already allow private and religious schools to deny admissions to whomever they want. Maine is an outlier — a blue state that would prefer to keep religious schools out of the tuitioning program. 

The debate reflects a heightened concern among advocates for public education that the nationwide push for private school choice will further isolate students.

“Religious schools getting the taxpayer-funded ability to pick their own kids is one real goal of this school voucher push — a feature, not a bug,” said Joshua Cowen, an education professor at Michigan State University. Last year, he released a book that delves into the way culture war battles have fueled private school choice.

In March, in opposition to Texas’ new ESA law, which passed in April with help from President Donald Trump. The president of the state House, urging them to vote yes. Earlier in that , which lasted nearly 24 hours, Laura Colangelo, executive director of the Texas Private School Association, said private schools could deny admission to a child whose mother wasn’t married when she got pregnant.

says the state can’t force a school to modify policies tied to their religious beliefs. If the Maine case goes the religious schools’ way, such rules would be “less necessary,” Cowen said.

“I’m a Christian man. I sing in a church choir. I can still say what these schools want to do is wrong,” he said. “These guys just want a blank check to do what they want, even if it’s leaving some kids and families out.”

A ‘source of balkanization’

The issue was also at the forefront of Oklahoma’s legal fight to open a religious charter school, a debate that both supporters and opponents of the idea expect to eventually wind up back in court.

In April, the U.S. Supreme Court tied 4-4 on the question of whether charter schools are private and can explicitly teach religion. The deadlock allowed the Oklahoma Supreme Court’s decision against St. Isidore of Seville Catholic Virtual School to stand. Though promising not to turn any students away, school leaders said they would only call students by their birth names and pronouns and would refer students with disabilities to their local district if accommodating their needs disrupted class.

Some experts see the prospect of sectarian charter schools as a threat to American values. 

“Public education, including public charter schools, is one of the few things that holds our society together,” said Richard Kahlenberg, who directs the American Identity Project at the Progressive Policy Institute, a think tank. “It’s the common experience for 90% of American schoolchildren.” 

“If you suddenly have … Christian students going to their schools, Jewish students going to theirs, Muslim students going to theirs, that means fewer Christian students come to know Jewish and Muslim students as classmates and friends,” Kahlenberg said in a panel discussion prior to the Supreme Court’s ruling in the Oklahoma case. “Our public schools are already highly segregated by race and class, and this would just layer on religion as a new source of balkanization.” 

‘Infinite number of options’

In Utah, the state’s teachers union sued last year over a new ESA program because they say it “diverts” education funds to schools that discriminate in admissions. In April, a state district court judge ruled the program unconstitutional.

“We firmly believe, and a judge agreed, that public money belongs in public schools,” said Hailey Higgins, communications director for the Utah Education Association.

To choice supporters — and the Trump administration — the more private schools that cater to families’ individual preferences, the better. That’s the argument that the Institute for Justice, a libertarian law firm, along with parents currently in the program, made in to the Utah Supreme Court.

When she learned about the lawsuit, Amanda Koldewyn, an Ogden mother of four, said she felt “anger, frustration and panic.” Her 12-year-old son, who has autism, was getting sick from anxiety in public school and was “bored out of his mind” in class. The Utah Fits All scholarship allowed her to find a curriculum where he can move at his own pace and pay a private math tutor for her daughter. She hopes to use the program for her 5-year-old twins this fall as well.

“I can actually get the resources that aren’t just passable, but are fine tuned to what my children need,” she said. “I get really, really angry at those few teachers who think public school is the only way.”

The debate over whether religious schools in choice programs can refuse to serve families who don’t share their values is also playing out with younger students in Colorado. The state’s universal preschool program requires participating schools to accept students from families regardless of parents’ housing status, income level, or religion, sexual orientation or gender identity. 

Two over the regulation, saying they couldn’t participate in the program because their faith prohibits them from accepting LGBTQ students or parents. That means the state doesn’t pick up the cost for students in those schools. The case is now before the U.S. Court of Appeals for the 10th Circuit. 

In other countries, it’s far more common for students to attend religious schools at the government’s expense. , fully funds Catholic school districts. In European countries like the Netherlands, attend government-funded religious schools.

Many countries place on those schools that choice advocates in the U.S. would resist, explains Sam Abrams, director of the International Partnership for the Study of Educational Privatization at the University of Colorado, Boulder. Religious schools often follow the same criteria for student admissions as public schools, teach to national standards and submit to monitoring visits.

“It’s all regulated, and you can’t screen kids out,” he said, noting that in recent school choice cases, the conservative justices on the Supreme Court never referenced how these systems work in other countries. “They’re not going to talk about the European system. It forces them to acknowledge that what [the U.S.] is doing is very different.”

Maine’s demands on religious schools depart from the way the tuitioning program used to operate. For decades, Catholic and other religious schools were “willing and active participants in this program,” Keim said. That ended in the 1980s — what she called the “shag carpet-era view of the Establishment Clause” — when the legislature passed a law excluding religious schools.

“For 25 years, Maine families have been knocking at the courthouse door and asking the federal courts to let them back in,” Keim said. 

In 2021, as the Carson case made its way to the Supreme Court, lawmakers amended the to prohibit discrimination against students in all private schools receiving public funds, including religious schools. The real “poison pill,” she said, is a provision that requires religious expression without discrimination. 

“If they’re going to allow a Catholic pro-life club,” she said, “they’re going to have to allow a Catholic pro-choice club.”

If the schools prevail in court, St. Dominic’s won’t be accepting any high school students. While the pre-K through eighth grade school will still operate, the this year due to low enrollment. 

“I’m sure the picture would be different,” Keim said, “if they had been allowed to receive these subsidies over the long term.”

If the justices had agreed with the district’s longstanding argument, children with disabilities would have had to prove their school system intentionally acted in bad faith in denying them in-school accommodations. In “friend of the court” briefs, numerous advocacy groups had warned that holding special education students to a different — and extraordinarily strict — definition of discrimination would have made it virtually impossible for families to assert their rights. 

The court agreed, saying everyone who files suit under the ADA should have to meet the same standard of “deliberate indifference,” or disregard for an individual’s need for accommodations.

“That our decision is narrow does not diminish its import for A.J.T. and ‘a great many children with disabilities and their parents,’ ” Roberts wrote, citing language from a lower court decision. “Together they face daunting challenges on a daily basis. We hold today that those challenges do not include having to satisfy a more stringent standard of proof than other plaintiffs to establish discrimination under Title II of the ADA and Section 504 of the Rehabilitation Act.”

In a concurring opinion, Justices Sonia Sotomayor and Ketanji Brown Jackson elaborated, citing examples of discrimination that, intent notwithstanding, must still be addressed. 

“Stairs may prevent a wheelchair-bound person from accessing a public space,” Sotomayor wrote. “The lack of auxiliary aids may prevent a deaf person from accessing medical treatment at a public hospital; and braille-free ballots may preclude a blind person from voting, all without animus on the part of the city planner, the hospital staff or the ballot designer.”

“Today’s decision is a great win for Ava, and for children with disabilities facing discrimination in schools across the country,” said Roman Martinez, a lead attorney on the case. “This outcome gets the law exactly right, and it will help protect the reasonable accommodations needed to ensure equal opportunity for all.”

In a statement to The 74, a district spokesperson said the high court “declined to decide what the particular intent standard is for such claims,” noting that “the case will now return to the trial court for next steps consistent with the court’s ruling.”

In 2015, when Ava was in fourth grade, her family moved from Kentucky to Minnesota. Because her severe form of epilepsy causes frequent seizures during the morning, she had been allowed to attend school in the afternoon and early evening. Initially, the Osseo district agreed to a modified schedule, but reneged after the family moved, saying it was unwilling to provide services outside the normal school day. 

The state administrative law judge who heard the family’s initial complaint called the district’s arguments “pretextual,” saying it was more concerned with “the need to safeguard the ordinary end-of-the-workday departure times for its faculty and staff” than with outside evaluators’ assessments of Ava’s needs. 

As the case made its way to the , the district had consistently argued Ava had to prove the school system acted out of ill intent — a standard that would have applied only to K-12 students. But in the brief it submitted before oral arguments, Osseo , saying that a showing of bad faith is required in all ADA cases, not just those involving schools.

The April 28 hearing erupted in rare verbal fireworks when Justice Neil Gorsuch took exception to a statement by the district’s attorney that lawyers for the U.S. Department of Justice, who sided with the family, were “lying” when they said the district had changed its argument. Justice Amy Coney Barrett characterized the district’s shift as “a pretty big sea change,” while Jackson questioned whether the district was saying the ADA does not necessarily require accommodations for people with disabilities.  

In their concurring opinion, Sotomayor and Jackson noted that when they wrote the act, lawmakers addressed the question at the heart of the case head-on: “Congress was not naïve to the insidious nature of disability discrimination when it enacted the ADA and Rehabilitation Act. It understood full well that discrimination against those with disabilities derives principally from ‘apathetic attitudes rather than affirmative animus.’ ”

The decision comes at a time when disability protections have come under fire from the second Trump administration and a number of Republican governors. In October, motivated by new rules that said gender dysphoria could be considered a disability, 17 states . Gender dysphoria is the clinical term for distress caused when a person’s gender does not match their sex assigned at birth.

That suit, Texas vs. Kennedy, originally sought to have Section 504, the portion of the ADA that outlaws in-school discrimination, declared unconstitutional. The states have since dropped that demand from the suit but are to overturn rules prohibiting discrimination in a wide array of public settings. 

Whether the states will continue to press the new, broader case in the face of Thursday’s decision remains to be seen.

For their part, disability advocates were quick to celebrate. The district’s position was “flatly inconsistent with the law and would have stripped millions of people with disabilities of the protections Congress put in place to prevent systemic discrimination,” said Shira Wakschlag, senior executive officer of legal advocacy and general counsel for The Arc of the United States, which submitted a brief on the issues. “The very foundation of disability civil rights was on the line.”

But the reprieve may be short-lived. Both supporters and opponents recognize the constitutional debate over whether publicly-funded charter schools can explicitly promote religion isn’t settled.

“It’s obviously disappointing,” said Nicole Garnett, a Notre Dame University law professor. But the decision — a 4-4 tie — doesn’t set a precedent, she said. “The issue remains alive and will undoubtedly resurface soon.”

�Ҳ����Ա�ٳ�’s novel legal argument in favor of charters being private inspired Catholic church leaders in Oklahoma to apply for a charter in 2023. But ironically, her long and close friendship with Justice Amy Coney Barrett is the likely reason for the split decision. 

As The 74 reported in March, Garnett and Barrett met as Supreme Court law clerks in 1998, both taught at Notre Dame and raised their children in the same neighborhood. Josh Blackman, an associate professor at the South Texas College of Law, and a friend of �Ҳ����Ա�ٳ�’s, predicted at the time that the case “might go to a 4-4 decision.”

“I feel bad for Nicole,” he said. “This is her life’s work.”

Barrett recused herself from the case, and in a simple , the justices said the state supreme court’s ruling last year to deny a charter to St. Isidore of Seville Catholic Virtual School stands — for now.

“It’s a day of celebration and relief,” said Robert Franklin, a former member of the Oklahoma virtual charter board who voted against the school’s application. “I am not so naive [to think] that the matter doesn’t find breath again at a later date, but for today, it’s a day to exhale.”

While the opinion doesn’t say how the justices decided, experts largely suspect that Chief Justice John Roberts played a central role and sided with the three liberals on the court. Early in April’s oral arguments, he appeared skeptical of the school’s assertion that Oklahoma didn’t create or control the school.

The conservative-leaning court, which has increasingly ruled in favor of expanding religious freedom, agreed to hear the case just four days after President Donald Trump took office. Roberts is the author of the three most recent opinions that Garnett and other scholars consider to be a “trilogy” — a over whether a religious school could participate in a state program offering playground resurfacing materials and two cases involving state funds for religious education, in and . But Roberts is also known for restraint. The potential disruption to nearly 8,000 schools nationwide may have proved to be too much for the chief justice, said Robert Tuttle, a professor of law and religion at the George Washington University Law School.

The case “seemed to many people like a vehicle for expanding the idea of school choice as broadly as possible,” Tuttle said. But he speculated that the court — most likely Roberts — “recognized the concerns … that this would have the possibility of killing charter schools.”

He agrees with Garnett that a similar case could rise to the court, but for now, the matter remains unsettled. Even in cases of a tie, justices can issue their own opinions, something they did not do in this case.

“If it were settled, then you would have opinions,” he said. But the case presented multiple “red flags under the Establishment clause.” Thursday’s ruling, he said, means that when it comes to faith-based charter schools, the line between religious freedom and government entanglement is unclear. “What we know is that the Supreme Court doesn’t know it either.”

The decision leaves many Catholic families in Oklahoma, especially those in rural areas, without a publicly funded faith-based option. In a statement, Archbishop of Oklahoma City Paul Coakley and David A. Konderla, the bishop of Tulsa, said that they are “exploring other options for offering a virtual Catholic education to all persons in the state.”

Days before the oral arguments, Starlee Coleman, president and CEO of the National Alliance for Public Charter Schools, warned the court and the Trump administration that declaring charter schools to be private would threaten funding for students since state laws define them as public. 

Others argued that a decision in favor of religious charter schools would compromise civil rights protections since many faith-based schools deny admission or services to LGBTQ students or kids with disabilities.

“Families choose public charter schools because they provide innovative, student-centered learning environments tailored to students’ unique needs and because they are accountable to families and taxpayers,” Coleman said in a statement Thursday. “That’s what makes them special, and that’s what we’re here to protect.” 

The administration, as part of its school choice agenda, has heavily promoted charter schools since January by removing Biden-era regulations and increasing funding. But some experts say states might tweak charter school laws to clarify that charters are public despite being operated by private organizations.

“The fact that it was as close as it was is a signal. This is a chance to make some changes because it’s going to come up again,” said Preston Green, an education and law professor at the University of Connecticut. He has recommended that states amend laws to clarify that board members for charter schools are public officials.

Green recognizes that Thursday’s outcome may have been a fluke. A recusal such as Barrett’s is unlikely to happen again. “There’s just no guarantee that Coney Barrett is going to side with the liberals. There’s no guarantee that Roberts — or whoever it was — would come out that way the second time around.” 

Such a ruling would be bad for the country and deeply disruptive. It could upend the charter school sector, raising questions about the constitutionality of the federal charter school law and the laws in 47 states, all of which require charters to be nonsectarian. It could lead to blue states cutting back on charter schools and red states seeing a flood of religious charters open up, which would further balkanize an already divided country. 

Is there any hope? The best outcome would be if one of the conservative justices — most likely Chief Justice John Roberts — ended up siding with the liberal justices and rejecting a requirement that authorizers must permit religious charter schools. The second-best outcome would be if policymakers took creative steps (as I outline below) to comply with an adverse Supreme Court ruling while preserving social cohesion and retaining for charter schools the flexibility they need to flourish.

I have a modest hope that Roberts’s vote may be in play. If he votes with the court’s three liberal justices, a 4-4 decision would let stand the Oklahoma Supreme Court’s decision opposing religious charters. (Justice Amy Coney Barrett is recused in the case.)  

In the oral arguments, the justices on the central question in the case: Are charters public or private? If they are public, then the Establishment Clause of the First Amendment prohibits them from being religious. If they are private, by contrast, the court’s interpretations of the First Amendment’s Free Exercise Clause that government cannot discriminate against religious schools would apply. 

Roberts asked tough questions of both sides, but the most hopeful moment came when he noted that the state has “a much more comprehensive involvement” in charter schools than in private schools, which could tilt his thinking against religious charters.

Greg Garre, who served as solicitor general under former President George W. Bush, made a powerful case that charter schools are public. He noted that private schools differ from charter schools in eight respects: 

• “Private schools can open without any state approval.”
  
• “There are no requirements or supervision of curriculum for private schools.”
  
• Private schools “can charge tuition.”
  
• Private schools “can restrict admissions.”
  
• Private schools are “not subject to general state assessment tests.”
  
• Private schools are “not subject to nearly the reporting requirements or oversight as public schools”
  
• Private schools “not subject to state rules regarding student discipline, civil rights [and] health”
  
• “There’s no process for closing” private schools “short of consumer fraud.”

If Roberts nevertheless decides, along with other conservatives, that charter schools are private schools, and states are compelled to authorize religious charters, that would set off a number of consequences.

First, blue states are likely to rebel. As Justice Neil Gorsuch noted, some states may begin “imposing more requirements on charter schools,” essentially making them more “public.” For a sector that thrives on independence, this could constitute a “boomerang effect.”

Second, red states are likely to see a number of religious private schools convert to charter status. As Justice Elena Kagan noted, “There’s a big incentive to operating charter schools, since everything is funded for you.” She expected to see “a line out the door” of applicants.

Third, there is likely to be more litigation. As the justices asked in the oral argument: If charters are deemed private schools, then does that mean a conservative Christian charter school could, as a matter of religious liberty, bar the admissions of Jewish, Muslim and gay students? Could the same school discriminate against gay or non-Christian faculty members? Could it reject state standards requiring that it teach evolution?  

I found this all very depressing, but there was one compelling moment in the oral argument that gave me some hope and sparked an idea about how state charter school boards could minimize the damage of a negative Supreme Court decision: focus on the question of a school’s mission.

At one point during the argument, Justices Sonia Sotomayor and Ketanji Brown Jackson offered a hypothetical question. If the government wanted to commission a mural and a religious painter wanted to include religious images, could the government reject that approach? Yes, said James Campbell, the attorney for the charter school board, because in that case, “the government is trying to speak its own message on its own buildings.” He claimed that the charter school law in Oklahoma, by contrast, gives “broad autonomy to the schools to come up with their own mission.” 

Under that logic, what if charter school laws were amended to say that applicant schools were free to identify a number of missions, but that they had to identify as their ultimate mission teaching the liberal democratic values that bind together Americans of all backgrounds? That’s already a central premise the constitutions and laws of many states. As Albert Shanker, who first brought the idea of public charter schools to the national stage, argued, the primary mission of public education is to teach these values, which is bound up in “.”

Teaching liberal democratic values is probably consistent with the approach of most religious charter schools, but few are likely to agree that this is their most important mission. The Oklahoma school at the center of the Supreme Court case, St. Isadore of Seville Catholic Virtual School, says its “ultimate goal” is “eternal salvation.” For many religious leaders, saying that promoting liberal democracy is their school’s primary mission would constitute blasphemy. When former President Joe Biden called the ideals in America’s founding documents “sacred,” a Catholic priest objected in the pages of the Wall Street Journal, saying, “.”

The test for charter school applicants wouldn’t be religious; it would be one of mission. Not every religious school would fail the test, and not every secular school would pass it. If the government is entitled to “speak its own message on its own building,” why can’t a state ask the schools it funds to advance as their central message the preservation of liberal democracy?

Join The 74 and the Progressive Policy Institute at 2 p.m. ET Thursday for a special conversation about the pivotal case. 

PPI’s Curtis Valentine will lead a conversation with Richard Kahlenberg, Jason Zwara of the National Association of Charter School Authorizers and Eric Paisner of the National Alliance for Public Charter Schools about the potential implications of the decision for charter school governance, state funding, church-state separation and educational equity.

Sign up for the Zoom or tune in to this page Wednesday at 2 p.m. ET to stream the event.

Recent school choice coverage from The 74: 

• In Case the School Choice World ‘Dreaded,’ Justices Appear Open to Religious Charters

• The Justice, the Professor and the Friendship That Could Rattle a Pivotal Religious Charter School Case
  
• Jeb Bush: Texas’ Education Savings Account Victory Can Set Nationwide Standard
  
• Opinion: Supreme Court Must Not Undermine Public Education in Religious Charter Case

A ruling in favor of Osseo Area Schools, located in suburban Minneapolis, would mean students who claim their rights were violated will have to prove their school systems acted in “bad faith or gross misjudgment” — a higher standard than “deliberate indifference,” which the law requires in other disability discrimination cases. 

An estimated 1.5 million public school students receive disability accommodations under the ADA, ranging from modified academic materials — such as simplifying a text or supplying curriculum via a specialized device — to making classrooms, bathrooms and other school spaces accessible to wheelchair users and others. The law governs accessibility, while disabled children’s educational rights are guaranteed by a different measure, the Individuals with Disabilities in Education Act.    

Teenager Ava Tharpe has a severe form of epilepsy that causes frequent seizures during the morning. While planning to move from Kentucky to Minnesota in 2015, when she was in fourth grade, a school district that would agree to start her classes at noon and extend them into the evening. After the family relocated, the district reneged, saying it was unwilling to provide services outside the normal school day. 

When the Supreme Court , the district’s position had consistently been that disability discrimination suits had to prove the school system acted out of ill intent. that the legal standard, which plaintiffs have been held to in some federal court circuits but not others, applied only to K-12 students.

But in the brief it submitted before the April 28 hearing, the district , saying that a showing of bad faith is required in all ADA cases, not just those involving schools. 

“The statutes do not impose liability for nondiscriminatory, good-faith denials of requested accommodations,” the document asserts, adding that the high court “should not subject America’s 100,000 public schools and countless other state and local entities and federal-funding recipients” to the deliberate indifference standard. 

The hearing erupted in verbal fireworks after the district’s attorney accused the lawyers representing the federal government, which has sided with the family, of “lying” in saying that the district had shifted its argument. Justice Neil Gorsuch snapped back, and several minutes of heated debate ensued. 

Later in the hearing, Justice Amy Coney Barrett characterized the district’s shift as “a pretty big sea change,” according to posted by SCOTUS Blog, which also reported Justice Ketanji Brown Jackson was “all but incredulous” that the district argued that the ADA does not necessarily require accommodations for people with disabilities. 

Osseo officials declined to comment on the case, citing Tharpe’s right to privacy. “The school district educates nearly 21,000 students, including 3,000 students with disabilities who have the right to education from birth through age 22,” it said in a comment to The 74. “We’re committed to the principles and the ideals expressed by the Individuals with Disabilities Education Act.”

The Tharpe family initially filed a complaint with state education officials under the IDEA, which guarantees disabled pupils a “free and appropriate public education.” Noting that the girl had a right to a full school day, even if it extended into the evening, a state administrative law judge found that Ava’s educational rights had been violated. 

When the district appealed that ruling in federal district court, the family filed a second suit under the ADA. In March 2024, the Eighth Circuit Court of Appeals agreed that the family’s IDEA rights had been violated. But the appellate court rejected the ADA discrimination claim, ruling the Tharpes had not proven the district acted in bad faith.

The Supreme Court’s eventual ruling should not impact IDEA, which governs whether children with disabilities are entitled to special education services enabling them to make adequate progress toward their goals.

By contrast, the ADA requires equal access to school and an equal opportunity to learn once they are there, explains Ellen Saideman, one of the authors of a submitted by the Council of Parent Advocates and Attorneys and several other disability advocacy groups. They argue that a ruling in the district’s favor would unfairly subject schoolchildren to a much higher legal bar than other people who need accommodations. 

To illustrate the difference, she cites a 2004 ADA case, , brought by someone who had to crawl up the stairs to get into a Tennessee courthouse that didn’t have an elevator. Under the “gross misjudgment” standard, there wouldn’t be a claim.

“The building was built before the ADA was passed, so it wasn’t built with any discriminatory intent,” says Saideman. “Under deliberate indifference, they know a person has a disability and there are other people who have disabilities who can’t go up the stairs. If they don’t fix it, then there could be a claim.”

One of the ADA’s original drafters, former Rep. Tony Coelho of California, also submitted a brief that Congress’ intent was that families of disabled children have “the same rights, no more, no less, that are provided all other groups … including the right to seek relief under Section 504 [and] the ADA.”

​​A decision is expected in June or July, near the end of the court’s current term.

In 2023, Oklahoma’s Statewide Virtual Charter School Board approved St. Isidore of Seville Catholic Virtual School, an action that would make it the nation’s first-ever religious charter school. It would be governed by Catholic religious doctrine in its syllabus, operations and employment practices. It would use taxpayer dollars to pay for religious instruction. And it could turn away students and staff if their faith or identity conflict with Catholic beliefs. 

Here’s the issue: Charter schools were created to be public schools. They are open to all students, from every background, tradition and faith community. They are publicly funded and tuition-free. And they are secular. 

That’s not an arbitrary distinction – it’s a constitutional one, grounded in the law and embedded in charter schools’ very design. The First Amendment’s Establishment Clause bars the government from promoting or endorsing any religion through public spaces or institutions. This foundational rule has ensured that students of all backgrounds can access public schools. It does not stifle religious expression — the Constitution fully protects this freedom, and religious education is available in other venues. Personally, I was, in fact, educated at Jesuit Catholic schools for my entire academic career. 

Parochial education has long been an accepted and important part of the education ecosystem, serving a variety of students and often filling an important need. Religiously affiliated schools have a long history of educating and caring for children who are new to this country and underserved, and supporting families who are overlooked. But promoting the exclusive teachings of a specific religion with public funds in a public school violates a clear constitutional principle. 

The issue isn’t only a legal matter; it’s about the character of public education itself. Muddying the boundary between public and religious institutions would undercut a fundamental commitment made by the nation’s public charter schools: that they are accessible to every student. It would undermine legal protections that keep public services available to the public. 

Rather than creating more opportunities for America’s students, it would constrict opportunities for a high-quality education, especially in states that are hostile toward charters or alternative public school models. Legislative bodies could seek to eliminate funding for all unique school types if the court decision forced them to fund religious schools operating with public dollars. This would curtail or dismantle strong independent schools, 30-year-old public charter schools and schools with unique programs designed for special populations.

As executive director of the DC Charter School Alliance, and a long-time public charter school advocate, I’ve seen the importance of public charter schools firsthand. Here in the District of Columbia, charter schools serve nearly half of the public school students in the city. Outstanding educators from all walks of life teach a wide range of subjects with enthusiasm and expertise to prepare young people for success. Our students bring to the classroom an incredible range of experiences, including faith traditions. And every student, family and faculty member is welcome. D.C.’s charter schools reflect a core American value: the promise of a high-quality public education for all. 

The justices of the Supreme Court face a clear and critical choice: They can bolster that promise, or they can tear it down. If the court allows a religious school to operate with public funds, there is no doubt that it will open the floodgates to other proposals across the country. Taxpayers could be forced to foot the bill for countless new and converted schools, draining resources from an already financially strapped education system. True public charter schools — the ones committed to high standards, positive results and opportunity for all — could bear the cost. And the students who rely on them could suffer. 

Public education is one of America’s most vital institutions. It offers all children, no matter their background or beliefs, access to free, high-quality learning. Charter schools play an essential role in making that promise real. But allowing a religious school to operate with public funds turns public education into something much more restrictive, dismantling its very foundation.

The court must reaffirm this indisputable truth: Public schools should remain public — and open to all. 

The last two weeks of April featured a rare doubleheader at the Supreme Court, as the justices took up two cases dealing with the intersection of religious liberty and public education. In both instances, plausible outcomes could thrust the courts ever deeper into the daily operation of U.S. schools, with attendant line-drawing, hair-splitting and interference likely for decades to come.

But the court has a way out of that thicket that would respect the secular nature of public schooling while guaranteeing parents their right of free expression. And that is to declare that states must find a way to provide taxpayer support for a pluralistic education system, one that funds religious schools in addition to the public schools — though not necessarily through the charter school mechanism.

This approach might sound like judicial overreach, but it is much preferable to the road we are otherwise heading down — one that will bring endless lawsuits about the rules surrounding charter schools, as well as litigation to determine when and how religious parents can opt their children out of lessons and programs that public schools mandate but that parents find objectionable. The latter issue was  at play in last week’s case, . The particular question was whether the school district in Montgomery County, Maryland, violated parents’ First Amendment rights by not letting them opt their children out of early elementary lessons on LGBTQ-themed storybooks — books that clearly carry messages at odds with their religious views.

That question is easy, though, compared to others that might follow, as Justice Ketanji Brown Jackson . For example, do parents of faith have the right to insist that their children not be assigned to gay teachers? To pull their high school students out of biology classes that discuss human evolution? Is it feasible, much less educationally advisable, to turn public schools into an a la carte experience?

Imagine that last week’s case had been about Montgomery County, Ohio, instead of Montgomery County, Maryland. There, religious parents have the ability to send their children to private schools — including religious schools — at , thanks to Ohio’s multi-faceted school-choice options. That’s not the case in Montgomery County, Maryland, where district schools are the only taxpayer-funded options. (Someone might inform , who asserted that religious parents could always opt for religious private schools instead of public ones, without acknowledging the burden of paying for tuition.)

For states with private school choice programs, the courts could show more deference to public school districts, knowing that religious parents have the option of exiting those schools entirely, rather than on a lesson-by-lesson basis. And to do so with the support of government funding.

Such an approach would also be helpful when it comes to the issue at play in the other half of the double-header, Wednesday’s St. Isidore of Seville v. Drummond. Here, the question is whether the state of Oklahoma, and the with charter school laws, discriminate against nonprofit religious organizations by prohibiting them from applying to create and run public charter schools aligned with their faiths.

This case hinges on whether charter schools are “state actors,” i.e., public schools. If so, they clearly trigger the First Amendment’s Establishment Clause and cannot be religious. The contrary view is that charter schools should be considered private, in which case Oklahoma is indeed guilty of “rank discrimination,” as Justice Brett Kavanaugh put it, by not allowing religious entities to win contracts to run faith-based schools — in the same way that it would be unfair to disallow Catholic Charities from managing government-funded food banks or foster care services.

That may be so. Yet for the court to mandate that states support religious charter schools against their will would be to create massive upheaval in the charter sector. After all, federal and state law and practice for 30 years have rested on the assertion that charter schools are, in fact, public schools, and therefore state actors. For example, they must accept all applicants and, if oversubscribed, use lotteries, not selective admissions, to determine who will attend.  Could states require religious charter schools to abide by these same rules? Meaning that, for example, they would have to admit students and families who don’t adhere to their faith? What about LGBTQ children or families? (St. Isidore claims it will accept everyone.) What’s more, a determination that charter schools are private may mean — especially in blue states — that they’ll no longer be eligible for state formula funding, .

But here, too, the court could take a wider view. It could rule that so long as states provide some vehicle to support religious education, they would not be required to do so through the charter school mechanism specifically. In the case of Saint Isidore, it could simply participate in Oklahoma’s existing . Indeed, Jackson wondered aloud about Oklahoma’s voucher program — perhaps an indication that she’s already seeing the big picture.

Mandating that states provide public support for religious schools might sound like a long shot. No doubt it would lead to massive bellyaching in blue states and from the usual suspects in teachers unions and the rest of the education blob. But beyond being a grand slam for kids and families, it might be the best way to avoid constant judicial micromanagement of the public schools for decades to come.