Wave of New Policy Blurs the Line Between Education and Religion

There has been a rising movement in states across the country to enact legislation to permit greater inclusion of religion in public schools. Ohio and Indiana both recently enacted legislation requiring public schools to permit students to leave class to receive religious education. Texas passed a comprehensive school voucher program that has the potential to funnel millions of dollars to religious schools, and currently has a bill sitting on the Governor’s desk where it is likely to be signed to require the Ten Commandments to be posted in public school classrooms. At least fourteen other states joined Texas in introducing Ten Commandments bills this past legislative session, and Congress is currently considering its own voucher as a part of the Trump Administration’s “Big Beautiful Bill.” This influx of bills to bring religion and education closer together has created an equally large amount of court challenges to their constitutionality. 

American courts have long struggled to balance the Constitution’s guarantee of freedom of religion under the Free Exercise Clause and assurance of the separation of church and state under the Establishment Clause. While prior Supreme Courts have cautiously erred on the side of the Establishment Clause, the current court (with its conservative majority) has expressed greater sympathy towards the argument that exclusion of religion from policies is not neutrality but religious discrimination. Policies regarding public education in particular have frequently encountered friction between the two First Amendment principles. Over the last few months, the Supreme Court has heard two major cases on the balance between the Free Exercise Clause and the Establishment Clause in education that could open up pathways to state imposition of unprecedented levels of religious expression in public schools. 

In the Supreme Court’s first case, Mahmoud v. Taylor, parents of students enrolled in Maryland’s Montgomery County Public Schools filed suit against the school system for their refusal to provide notice and opt-out options regarding the use of LGBTQ-inclusive books in the classroom. The parents argued that these failures violated their right to religious freedom, asserting that the books ran contrary to their religious beliefs. The District Court denied the parents’ motion for a preliminary injunction, and the Court of Appeals affirmed that decision; however, despite the skepticism of the lower courts, parents encountered a much more receptive audience during Supreme Court oral arguments this past April. While an opinion has yet to be released, the majority of pundits predict a win for the parents in the case.

The second case, Oklahoma Statewide Charter School Board v. Drummond, began in 2022 when the Archdiocese of Oklahoma City and the Diocese of Tulsa filed an application with the Oklahoma Statewide Charter School Board to establish a virtual Catholic charter school named St. Isidore of Seville. The school was initially supported by the Republican state Attorney General, John O’Connor, however, O’Connor’s successor, also a Republican, Gentner Drummond, was not nearly as amenable to the idea. In fact, when the Charter School Board issued its approval for the school in the Fall of 2023, Drummond immediately sought to nullify the contract. While proponents of the school asserted that excluding religious institutions from establishing charter schools amounts to religious discrimination, Oklahoma’s Supreme Court sided with Drummond, determining that such a contract would violate the state Constitution’s prohibition against public money being used to benefit a sectarian institution, as well as the Establishment Clause of the US Constitution. The decision was immediately appealed to the Supreme Court, and this month, mere weeks after oral arguments, the court issued a surprising deadlocked opinion in the case, therefore affirming the lower court’s ruling against the school. The result in the case surprised many court watchers as despite the recusal of Justice Coney Barrett in the case, the court still maintained a conservative majority. Unexpectedly, however, one of the conservative justices sided with the three liberal justices to create a tie, although which justice is unknown, as they were not listed in the order.

The opinion in Drummond and impending opinion in Mahmoud will serve as litmus tests for future cases arising out of the recent state legislation that are sure to make their way to the Supreme Court. While the conservative majority seems poised to act as one in a decision in Mahmoud, a case primarily based on parental rights, the opinion in Drummond demonstrates the court’s less emphatic endorsement of religious state action. The unexpectedly small margins by which Drummond and a number of other recent Supreme Court decisions have been made create a less predictable judicial landscape than one would have predicted considering the court’s composition. As a result, states all over the country will likely continue to push the constitutional boundaries between religion and public education, providing the Supreme Court with ample opportunity to offer greater clarification on the issue.