The Trump administration is joining two major U.S. Supreme Court cases on public education and religion, filing briefs this week in support of state funding for a Catholic charter school and the right of parents to opt their children out of LGBTQ+ lessons.
The friend-of-the-court briefs were not a surprise, but they come in widely watched cases that could transform public education. One case could lead to requiring states to open their charter school programs and funding to religious schools on a significant scale. The other could give parents with religious objections to class materials the right to keep their children away from the curricular choices of professional educators.
Both cases will be argued in April, with decisions expected by the end of the court’s term in late June.
One case is Oklahoma Statewide Charter School Board v. Drummond, which involves the proposed online charter school based on traditional Catholic teachings. The St. Isidore of Seville Catholic Virtual School, sponsored by the Roman Catholic Archdiocese of Oklahoma City and Diocese of Tulsa, has been in limbo since the Oklahoma Supreme Court ruled last year that it would violate both the state and federal constitutions. It is scheduled for argument on April 30.
The other is Mahmoud v. Taylor, about the appeal of parents who object on religious grounds to a Maryland school district’s policy of preventing them from removing their children out of LGBTQ+ inclusive “storybooks” used in elementary English/language arts classes. That argument is set for April 22.
Two lower federal courts declined to block the no opt-out policy, with a federal appeals court ruling that the policy did not burden the parents’ 1st Amendment free-exercise-of-religion rights because there was no evidence the policy compelled the parents to change their religious beliefs or what they taught their children.
A major shift in positions on legal status of charter schools
In the Oklahoma charter case, the brief filed March 12 by Acting U.S. Solicitor General Sarah M. Harris argues that the Oklahoma Supreme Court’s ruling wrongly excluded a religious-based charter school from the state’s publicly funded charter program.
“That restriction should have been a non-starter,” the brief says. The Trump administration essentially rejects the traditional view of charter schools as a form of public school even when they are managed or controlled by outside organizations.
“Charter schools like St. Isidore that are neither government-created nor government-controlled are not part of the state for federal constitutional purposes,” the brief says. While state law mandates that charter schools be open to all students and may not charge tuition, “those requirements do not transform such schools into governmental entities,” it says.
Harris, the acting solicitor general who is a political appointee of President Donald Trump, acknowledged in her brief that the Biden administration had taken a different view of whether privately run charter schools are “state actors” for constitutional purposes. In a brief in a separate case that the court was considering but in 2023 opted not to grant full review, the Biden administration argued that the charter school in question was engaged in state action because it performed an educational function that was traditionally exclusively reserved to the state.
Harris, in her brief, said, “After the recent change in administration, the United States has concluded that charter schools do not perform functions exclusively reserved to the state.”
Meanwhile, Harris argued that St. Isidore has First Amendment free exercise rights of its own, which are violated by the state’s exclusion of it from the charter program, the brief argues.
“Oklahoma has singled out and excluded one type of private entity—religious organizations—from participating in the charter-school program,” the brief says. Playing on language in recent U.S. Supreme Court opinions that have expanded the inclusion of religious schools in state choice programs, the brief says, “States need not offer private entities the opportunity to open and operate” charter schools, “but when states choose to do so, they cannot say religious entities need not apply.”
The brief was filed on the deadline for allies to file briefs in support of the two entities fighting for the inclusion of religious charters—St. Isidore itself and the state charter board. They are joined by Oklahoma Gov. J. Kevin Stitt and Superintendent of Public Instruction Ryan Walters, both Republicans, among other politicians and conservative groups.
Oklahoma Attorney General Gentner Drummond, also a Republican, has led the battle against opening up the state charter school program to religious schools. He has argued that the state supreme court correctly determined that charter schools in Oklahoma are public schools that must provide a “strictly secular” education.
Drummond, who represents the state’s position in the case despite being pitted against the state charter board and the other state officials, will file his merits brief on March 31, with groups allied with him to file soon after.
In case of opt-outs from LGBTQ+ books,the Trump administration suggests a narrow way to rule
The Trump administration’s brief in the parental opt-out case was also signed by Harris. She argues that the religious parents who object to the LGBTQ+ “storybooks” used as curricular resources in the 160,000-student Montgomery County, Md., school system have a free exercise right to keep their children from such lessons.
The storybooks include Intersection Allies, Born Ready, and Jacob’s Room to Choose.
Harris says the no opt-out policy “burdens [parents’] religious practice by forcing them to send their children to classrooms that will instruct their children using the storybooks’ materials involving gender and sexuality.”
That is “textbook interference with the free exercise of religion,” the brief says.
The administration argues that the court could issue a narrow ruling based on the policy burdening the free exercise rights of the parents and then send the case back for further proceedings on whether such a policy would be constitutional notwithstanding such burdens. But the court could go further, the brief says, and hold that such burdens must withstand the highest level of constitutional review, known as strict scrutiny.
The Montgomery County district’s policy would be unlikely to be upheld under strict scrutiny because the school system has offered ad hoc excusals for religious reasons before, including for sex education.
The school district will file its full merits brief later this month, but it has argued that it initially allowed parents to opt their children out of the storybooks for religious and secular reasons. But a large number of opt-out requests led to concerns about high student absenteeism, the infeasibility of administering opt-outs across classrooms, and the risk of stigmatizing LGBTQ+ students and their families.
“These consequences would defeat [the district’s] efforts to ensure a classroom environment that is safe and conducive to learning for all students,” the school system said in a preliminary brief.
