Conservatives have had an aggressive and largely successful campaign in recent years taking education issues to the court system, a combination of decades of ground work, a better political climate and a friendlier Supreme Court.
In the past few years, Republicans have snatched high-profile wins at the high court, including blocking student debt relief and getting rid of affirmative action in college applications, as well as making significant strides in school choice policies.
Those on the right are trying to capitalize on that momentum, but experts emphasize that the issues haven’t changed just because former President Trump was able to appoint three Supreme Court justices.
“I can’t conceive of anybody who would launch an effort saying, ‘Let’s try to get this school approved now because there’s a 6-3 conservative majority.’ I don’t think it works that way,” said Robert Pondiscio, a senior fellow at the American Enterprise Institute.
“I mean, clearly it seems like the legal environment is obviously more congenial to things that conservatives have always wanted, but it’s not like they want those things because there’s a conservative majority,” Pondiscio added. “You might be more likely to pursue legal remedies, you know, to get things done, but it’s a question of carts and horses, you know, like the education cart is not pulling the legal horse, so to speak — it’s the other way around.”
The right-leaning Supreme Court was a saving grace for the right in two of arguably its biggest education legal wins in the past few years, stopping universal student loan relief and ending affirmative action in the college application process.
And now conservatives are in court defending efforts that include a push to see more Christian teachings in the classrooms.
In Louisiana, the governor is fighting to get the Ten Commandments hung in every public school classroom. In Oklahoma, the state superintendent wants a Bible in every classroom and more lessons about the Bible’s impact on American history and culture; meanwhile, a Catholic diocese in the state is refusing to back down in its attempt to create the nation’s first openly religious charter school.
All those moves have been been met with lawsuits, with the proponents of the religious charter school asking the Supreme Court to take up the case.
Last week, a group of Oklahomans sued the government over the Bible mandate, arguing the lessons and the state’s intention to use taxpayer money to buy the Bibles violate the separation of church and state.
“The constant use of Oklahoma as a testing ground for religious extremism is growing tiresome,” said Colleen McCarty, executive director of the Oklahoma Appleseed Center for Law and Justice. “Oklahoma families deserve a public school system devoted to the education of their children, and instead we get flash-bulb political stunts and attempted erosion of the Constitution. The buck stops here. We will defend the principles our nation is built on, starting with the separation of church and state.”
While some see these recent moves as motivated by the previous wins with a Supreme Court that was friendly to conservatives, others stress factors such as a better political climate in general and decades’ worth of efforts on the ground.
“It’s not quite as simple as ‘Well, they see a friendly court,’” said Neil McCluskey, director for the Center for Educational Freedom at CATO Institute.
“The most clear-cut example of what I have in mind is the Oklahoma Catholic Charter School, where it’s not so much that they see a friendly court, it’s that the courts are more friendly to school choice and have developed precedent now to support that kind of move,” McCluskey said.
Conservatives have been working for years on school choice policy, finally seeing big strides in the last few with numerous states adopting education savings accounts.
McCluskey points to the school choice fight in the courts as far back as 2002 with the Supreme Court case Zelman v. Simmons-Harris. In it, the Supreme Court ruled an Ohio school voucher program was legal as long as parents got to pick between secular and religious private schools, saying the vouchers potentially going to religious schools does not violate the First Amendment.
“If people get a voucher and they choose to take it to a religious school, and there have been a number of rulings that have built on that, that have brought us to the point where we have precedent that says, ‘Well, the government cannot exclude people or person or organization from an otherwise readily available government benefit just for being religious,’” McCluskey said.
“It’s that courts have been more friendly to [school] choice over the last 20 years or so, which is created precedent that led to this point,” he added.
Conservatives have been fighting in the court system for more religion in public schools since the Supreme Court ruled back in the 1960s to take away prayer and religious acts.
In 2022, conservatives secured a landmark ruling in Kennedy v. Bremerton, where the Supreme Court ruled a football coach praying on the field after games did not violate the Establishment Clause.
And the same arguments built up over the past few decades are the ones that will be used by those supporting the religious charter school if the Supreme Court takes up the case.
“Over the last several decades, the Supreme Court’s decisions involving cooperation with public schools have made it pretty clear in a way that wasn’t true in the 70s and 80s, but now it is quite clear that the First Amendment permits governments to cooperate with religious schools when it comes to education that doesn’t violate the separation of church and state, so long as the programs are properly designed,” said Rick Garnett, director of Notre Dame Law School’s Program on Church, State & Society and who is involved in the legal case for the religious charter school in Oklahoma.
“And more recently, there’s been a run of cases in the last, let’s say, five, six, seven years where the Court has said governments are not allowed to discriminate against religious schools. So, you know, once the government decides that it’s going to partner with some non-state educators, it can’t exclude religious providers,” he added. “And so, you put those kind of two legal developments together, and it’s it creates a good environment for both litigators to go to the courts, but also just for legislators to draft new programs.”