Oklahomans love their casinos. We have more than any other state – 143 offering slots, blackjack and off-track betting.^[1] They don’t take bets on U.S. Supreme Court decisions, but as attorneys, wouldn’t it be great to know odds? Part of our work is playing the odds. We strategize based on factors like controlling precedent or persuasive case law and what we know about the judge’s prior decisions. I’m not setting odds on constitutional questions before the Supreme Court, but I wondered: If we look at the court’s decisions on religion in schools, what trends might stand out? What characteristics of the cases and the court could be generalized so that correlations among them might help explain how the court has decided cases in the past and possibly predict how it’ll decide the cases currently before it? And what would that data predict about the outcome of an Oklahoma case awaiting argument before the court, the St. Isidore case,^[2] a decision that could provide public funding for private religious schools in the U.S. like never before?

IDENTIFYING AND DEFINING CHARACTERISTICS OF THE CASES AND THE COURT

The court's religion-in-schools cases fall into two categories: those deciding whether religious practices violate the establishment or free exercise clauses of the First Amendment^[3] and those determining how government funding can support religious schools without breaching the separation of church and state.

As for characteristics of the court, the justices on the court and the era that shaped it can be sufficiently identified with the chief justice who presided over it. For example, the Warren Court, contemporaneous with the civil rights movement, stands out for its activism on religion-in-schools issues like state-sponsored prayer and scripture reading.^[4] Is there a similar identifiable tendency for each court? And do those tendencies hold true when deciding funding issues as well as religious practice issues?

A court’s stance on any case, a characteristic of its jurisprudence, can be characterized as activist or restraintist. Courts take an activist stance when they:

• strike down arguably constitutional actions of other governmental actors;
• ignore controlling precedent from a higher court or the court’s own previous decisions;
• legislate from the bench;
• deviate from accepted canons of interpretation to reach a decision; or
• engage in result-oriented decision-making.^[5]

Conversely, when not exercising activism, courts are practicing restraint.

Just as that dichotomy can be used to describe a court’s stance on jurisprudence in general, the court’s approach to religion-in-schools cases, in particular, adds a layer of data that may make its future decisions more predictable. Erwin Chemerinsky presents three competing approaches the court can take to its application of the establishment and free exercise clauses.^[6]

The first approach is strict separation, maintaining a wall of separation between government and religion to the greatest extent possible.^[7]

In the second approach, neutrality, the court expects the government to remain neutral on religion by neither favoring religion over secularism nor one religion over any other.^[8] Applying a neutralist approach, courts read the establishment and free exercise clauses together so that religious classification provides no basis for the government to confer any benefit or impose any burden; government neither endorses nor disapproves of religion.^[9]

Accommodation, the third approach, says the government accommodates a relationship with religion based on its significance to society and culture.^[10] As an example, in the accommodationist view, the government would only violate the establishment clause by literally establishing a church or coercing participation in a religion.^[11]

BRINGING CHARACTERISTICS TOGETHER IN ONE TABLE 

Figure 1 is a chronological list of the Supreme Court’s religion-in-schools cases since the Vinson Court, with additional columns to show the nature of the issue as funding or religious practice; whether the decision was based on the establishment clause, the free exercise clause or another First Amendment freedom; the court’s holding – constitutional if it upheld the government’s law or action, unconstitutional if it didn’t; the court’s stance on the case as activist or restraintist; and its approach to the case as separationist, neutralist or accommodationist.^[12]

Reasonable minds could reach different conclusions about the court’s stance on and approach to a given case. Their inclusion on the table doesn’t make them definitively correct. Their importance is in the invitation to think beyond what the court explicitly says in its opinions and to look at the unspoken beliefs that shape its decisions, yielding trends in the court’s past reasoning that offer clues about its future rulings.

LOOKING FOR TRENDS IN THE DATA

Now that the table – the “racing form” – is built, let’s turn to the data. What observations stand out? First, the issue most commonly brought before the court has shifted from religious practice to government funding. Before 1993, only three of 14 cases concerned funding issues. Since 1993, of the nine religion-in-schools cases the Supreme Court has heard, seven of those addressed funding, with three of the seven decided since 2017 by the Roberts Court.

Second, the court’s constitutional rationale has shifted over time. Before 1993, the establishment clause was the basis for 85% of religion-in-schools cases – or 12 of 14 decisions. In contrast, from 1993 on, less than half of the cases, four of nine, were decided on the establishment clause. The majority of cases relied on free exercise, with one, Kennedy v. Bremerton,^[13] incorporating free exercise and freedom of speech. Every case before the Roberts Court has involved free exercise.

Although the increase in challenges to government funding of religious schools has coincided with increased reliance on the free exercise clause, the two don’t appear in the same case as often as one might expect. Of the 10 funding cases the court has addressed, only four were decided on the free exercise clause. All four of those cases were decided after 2004. Every funding decision in the last 20 years, including three opinions from the Roberts Court, has been based on free exercise. Here, a pattern emerges that’s likely predictive.

Before the Roberts Court, only the Warren Court consistently took an activist stance. To date, the Roberts Court has done the same, invalidating the government’s action in each of the religion-in-schools cases it’s heard. As for approach, every previous court has been mixed in their application – sometimes separationist, sometimes neutralist, rarely accommodationist. The Roberts Court, however, has invariably accommodated religion both in government funding programs and in questions of religious practice. But here’s a twist: Prior to 1995, every funding case before the Supreme Court challenged the government’s use of funds to somehow support religion – paying for parochial school buses, allowing tax credits for families’ parochial school expenses or providing for a sign language interpreter in a religious school. Beginning with Rosenberger v. Rector,^[14] the cases flipped as to the government action being challenged. Since then, the court has only decided cases in which the government denied funding based on religion. All three of the funding cases before the Roberts Court have challenged the government’s denial of funding to schools or families based on religion. The Roberts Court has found the government’s action to be unconstitutional each time.

USING THE DATA TO MAKE A PREDICTION ABOUT THE COURT'S DECISION IN ST. ISIDORE

What does all this predict for the government funding of St. Isidore as a religious school? In the St. Isidore case, the Oklahoma City and Tulsa Catholic dioceses applied to the Oklahoma Statewide Charter School Board^[15] to approve their contract to make St. Isidore of Seville Catholic Virtual School a statewide public charter school.^[16] As the name suggests, St. Isidore plans to operate as a Catholic school and incorporate the teachings of the Catholic Church into every aspect of the school, including curriculum.^[17] The board approved their contract.^[18]

The Oklahoma Supreme Court held that the contract violated the Oklahoma Constitution and the Oklahoma Charter Schools Act, which prohibit the state from using public money for the benefit of religious institutions and require charter schools to be public and nonsectarian.^[19] The Oklahoma Supreme Court reasoned that when St. Isidore asked to be funded as a public school, it also applied to become a governmental entity and a state actor bound by the separation of church and state. The court distinguished St. Isidore’s case from those in which it allowed state-funded scholarships to be used at private religious schools because those scholarship funds did not directly fund religious institutions but instead went to families who made the choice to use the state funds at religious schools.^[20]

St. Isidore’s Catholic identity increases its attraction as a religion-in-schools test case because it brings to mind the anti-Catholic roots of the failed federal Blaine Amendment of the 19th century and the present challenges to state laws that Oklahoma and other states have enacted to prohibit public support of religious institutions.^[21] Considering the trend data that indicates the Roberts Court is persistently activist in its stance, it’s no surprise that the court is hearing the case and has scheduled oral argument in St. Isidore for April 30. What’s more, the Roberts Court has applied a consistently accommodationist approach in cases where the state is challenged for denying benefits based on an institution’s religious status. So here, where a challenge to the government’s denial of funding is based on the free exercise clause and is brought before a court whose record is activist and accommodationist, the data suggests the U.S. Supreme Court will likely overrule the Oklahoma Supreme Court and accommodate St. Isidore as a religious charter under the Oklahoma Charter Schools Act.

As with any gamble, playing the odds doesn’t guarantee a win. The court may instead find that the school’s church-based policies in admissions and operations discriminate in ways that disqualify it from public funds. St. Isidore maintains it will be Catholic in all aspects, including church-based policies in admissions and operations that could potentially be challenged as discriminatory. St. Isidore also asserts it is a private – not public – school, despite Oklahoma’s statutory definition of a charter school. The court could also object to the state providing funding to a religious institution in such a direct way, as opposed to the indirect government funding it has upheld in cases involving tax credits or vouchers to attend private religious schools.

CONCLUSION

After looking at the types of religion-in-schools cases the Supreme Court has heard, analyzing the kinds of cases in which the court has been activist or restraintist and considering its tendencies to be separationist, neutralist or accommodationist, we may be able to predict the court’s decision in St. Isidore more accurately than we could a hand of poker. But courts aren’t casinos. We don’t go there for the entertainment value or the loose slots. We go to the court for justice and to keep the constitution alive in our laws and policies. In that endeavor, may the odds be forever in our favor.

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FIGURE 1: COMPARISON OF RELIGION-IN-SCHOOLS CASES

Vinson Court, 1946 to 1953
Case	Issue	Basis	Holding	Stance	Approach	Note
Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1 (1947)	Funding: State funds were used to pay parochial students' bus fares to get to and from school.	Establishment Clause	Constitutional	Restraintist	Separationist	The result seems neutral. But the court said, "[The] wall (between church and state) must be kept high and impregnable." (18).
McCollum v. Bd. of Ed., 333 U.S. 203 (1948)	Religious practice: A public school released students to religious classes during school hours in the school building.	Establishment Clause	Unconstitutional	Activist	Separationist	Reasoning: Tax-supported school buildings were being used for the dissemination of religious doctrine.
Zorach v. Clauson, 343 U.S. 306 (1952)	Religious practice: A public school released students during school hours for religious class off school grounds.	Establishment Clause	Constitutional	Restraintist	Accommodationist	Allowing students to receive religious instruction during school was accommodating religion – no government funds or facilities were used. (313).
Warren Court, 1953 to 1969
Case	Issue	Basis	Holding	Stance	Approach	Note
Engel v. Vitale, 370 U.S. 421 (1962)	Religious practice: The state created a prayer that public schools led each morning.	Establishment Clause	Unconstitutional	Activist	Separationist	Reasoning: The government-composed prayer constituted a state endorsement of religion.
Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203 (1963)	Religious practice: A public school began each day with the Lord's Prayer and a Bible reading.	Establishment Clause	Unconstitutional	Activist	Neutralist	The court said, "[F]ree Exercise ... never meant that a majority could use the machinery of the State to practice its beliefs." (226).
Epperson v. State, 393 U.S. 97 (1968)	Religious purpose: State law illegalized the teaching of evolution.	Establishment Clause	Unconstitutional	Activist	Separationist	Reasoning: The law was derived from a particular religious doctrine of a particular religious group.
Burger Court, 1969 to 1986
Case	Issue	Basis	Holding	Stance	Approach	Note
Lemon v. Kurtzman, 403 U.S. 602 (1971)	Funding: Public funds supplemented parochial teachers' salaries for secular subjects that used public textbooks.	Establishment Clause	Unconstitutional	Activist	Separationist	Established the three-part Lemon Test, including the excessive entanglement prong.
Wisconsin v. Yoder, 406 U.S. 205 (1972)	Religious practice: State compulsory schooling laws disrupted the Amish way of life and parents' right to direct children's religious upbringing.	Free Exercise Clause	Unconstitutional	Activist	Accommodationist	Reasoning: Amish families' right to free exercise outweighed the state's interest in compelling school attendance.
Stone v. Graham, 449 U.S. 39 (1980)	Religious observation: The state planned to place a copy of the Ten Commandments in every public classroom using private funds.	Establishment Clause	Unconstitutional	Activist	Separationist	Reasoning: The act was religious in nature, and not all commandments are secular. The establishment clause was violated using the Lemon Test.
Widmar v. Vincent, 454 U.S. 263 (1981)	Religious practice: A state university denied a religious group the use of facilities for religious meetings.	Freedoms of Speech and Association	Unconstitutional	Activist	Neutralist	Reasoning: Excluding religious speech is not necessary in order to comply with the establishment clause.
Mueller v. Allen, 463 U.S. 388 (1983)	Funding: A state income tax credit for education expenses was available to public and parochial school students.	Establishment Clause	Constitutional	Restraintist	Neutralist	The court applied the Lemon Test. It also found the statute was neutral on its face.
Wallace v. Jaffree, 472 U.S. 38 (1985)	Religious practice: State law required one minute of silence in public schools for meditation or prayer.	Establishment Clause	Unconstitutional	Activist	Separationist	The court applied the Lemon Test. Its reasoning: Legislative intent clearly intended the measure to return prayer to schools.
Rehnquist Court, 1986 to 2005
Case	Issue	Basis	Holding	Stance	Approach	Note
Edwards v. Aguillard, 482 U.S. 578 (1987)	Religious practice: State law required public schools that teach evolution to teach creation science also.	Establishment Clause	Unconstitutional	Activist	Separationist	The court applied the Lemon Test. Its reasoning: The court found that the law's primary purpose was to endorse a particular religious doctrine.
Lee v. Weisman, 505 U.S. 577 (1992)	Religious practice: Clergy delivered prayer at a public school graduation.	Establishment Clause	Unconstitutional	Activist	Accommodationist	Reasoning: The court found coercion to participate in prayer, which violates the establishment clause, even from an accommodationist approach.
Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993)	Funding: A government-funded interpreter accompanied a deaf student to parochial school classes.	Establishment Clause	Constitutional	Activist	Neutralist	Activist because it seems inconsistent with the ruling in Lemon. Neutralist because the government provided benefits without reference to religion.
Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819 (1995)	Funding: State university assistance provided to secular groups was denied to a religious student group that published a campus magazine.	Freedom of Speech; Establishment Clause	Unconstitutional as to Speech; Constitutional as to Establishment	Activist	Neutralist	Reasoning: Free speech must be promoted equally. Activist because of the shift from the earlier decision in Rust v. Sullivan, 500 U.S. 173 (1991).
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)	Religious practice: A public high school elected a student to lead a prayer over a public address system at each football game.	Establishment Clause	Unconstitutional	Activist	Separationist	Reasoning: Prayer was authorized by the government and government-sponsored on government property. Many students were required to attend the games.
Zelman v. Simmons-Harris, 536 U.S. 639 (2002)	Funding: The state provided tuition vouchers students could use to attend any private school, secular or religious.	Establishment Clause	Constitutional	Activist	Neutralist	Reasoning: "[B]enefits are available to ... families on neutral terms, with no reference to religion." (653).
Locke v. Davey, 540 U.S. 712 (2004)	Funding: A state scholarship program included religious colleges but not ministerial studies because the state constitution prohibited public funding of religion.	Free Exercise Clause	Constitutional	Restraintist	Neutralist	Reasoning: The state could allow scholarships to be used by students studying for ministry, but denying it doesn't violate the free exercise clause.
Roberts Court, 2005 to Present
Case	Issue	Basis	Holding	Stance	Approach	Note
Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017)	Funding: The state gave grants to resurface playgrounds but denied a grant to a church school because the state constitution prohibited public funds for religion.	Free Exercise Clause	Unconstitutional	Activist	Accommodationist	Reasoning: The state denied an otherwise available public benefit because of a school's religious status.
Espinoza v. Montana Dep't of Revenue, 591 U.S. 464 (2020)	Funding: State tax credit was prohibited for religious schools because the state constitution prohibited funding religion.	Free Exercise Clause	Unconstitutional	Activist	Accommodationist	Reasoning: The state must have a compelling reason and no alternative any time it denies benefits to religious institutions that it allows to secular ones.
Carson as next friend of O. C. v. Makin, 596 U.S. 767 (2022)	Funding: The state provided funds to attend private schools in rural areas without public schools but did not allow funds for religious schools.	Free Exercise Clause	Unconstitutional	Activist	Accommodationist	"A state violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits." (778).
Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022)	Religious practice: A public school coach was fired for kneeling and praying midfield after games.	Freedom of Speech; Free Exercise	Unconstitutional	Activist	Accommodationist	Reasoning: "The District sought to restrict Kennedy's actions at least in part because of their religious character." (508).

 

 

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ABOUT THE AUTHOR

Brent Rowland is the legal director and one of the attorneys for the Oklahoma Appleseed Centerfor Law and Justice (OK Appleseed), a public interestorganization based in Tulsa. OKAppleseed works through community organizing, legislative advocacy and litigation in the areasof education, youth and criminal justice to protect the rights of and promote opportunities for allOklahomans. Mr. Rowland is agraduate of the TU College of Law

 

 

 

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ENDNOTES

 

[1]The Oklahoman, https://bit.ly/41Fh7NS, (last visited Nov. 29, 2024).

[2] Okla. Statewide Charter Sch. Bd. v. Drummond, Docket No. 24-294, SCOTUSblog, https://bit.ly/43gGBlC, (last visited Nov. 29, 2024) (awaiting certiorari at the time of writing, Dec. 3, 2024).

[3] U.S. Constitution, Amendment I.

[4] Rebecca E. Zietlow, “The Judicial Restraint of the Warren Court (and Why It Matters),” 69 Ohio State L. J. 255 (2008).

[5] Fern Fisher, “Moving Toward a More Perfect World: Achieving Equal Access to Justice Through a New Definition of Judicial Activism,” 17 CUNY L. Rev. 285 (2014), citing Keenan D. Kmiec, “The Origin and Current Meanings of ‘Judicial Activism,’” 92 Calif. L. R. 1441 (2004).

[6] Erwin Chemerinsky, Constitutional Law 1524, Aspen Publ’g (7th ed. 2024).

[7] Id.

[8] Id.

[9] Id. quoting Lynch v. Donnelly, 465 U.S. 668, 694 (1984).

[10] Id. at 1527.

[11] Id.

[12] See Figure 1: Comparison of Religion-in-Schools Cases.

[13] Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022).

[14] Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995).

[15] Formerly the Oklahoma Statewide Virtual Charter School Board.

[16] Drummond ex rel. State v. Oklahoma Statewide Virtual Charter Sch. Bd., 2024 OK 53, 558 P.3d 1.

[17] Id. at 6.

[18] Id.

[19] Id. at 7-9.

[20] Id. at 10, citing Oliver v. Hofmeister, 2016 OK 15, 368 P.3d 1270.

[21] See generally Ward M. McAfee, “The Historical Context of the Failed Federal Blaine Amendment of 1876,” 2 First Amend. L. Rev 1 (2003), available at https://bit.ly/3EW58m7. See also Frederick M. Gedicks, “Reconstructing the Blaine Amendments,” 2 First Amend. L. Rev. 85 (2003), available at https://bit.ly/3EW5clR (explaining state Blaine Amendments in light of recent U.S. Sup. Ct. decisions).