U.S. Supreme Court agrees to hear cases involving religious school funding, parent rights to opt out of grade school curriculum

In the past two weeks, the U.S. Supreme Court has agreed to review a pair of religious liberty cases, one of which is a closely watched case in Oklahoma that may reshape the landscape of church-state law surrounding government funding of religion.

In Oklahoma Virtual Charter School Board v. Drummond, the Court will consider whether the First Amendment’s Free Exercise clause requires Oklahoma to include privately owned religious schools in its charter school program, despite decades of Establishment Clause jurisprudence barring direct taxpayer funding of religious instruction. The fact that the U.S. Supreme Court decided to review the charter school funding case — after the Oklahoma Supreme Court ruled against it — raises concerns that a majority of Supreme Court justices are poised to further erode constitutional safeguards restricting taxpayer funding of religion.

The case arises out of a 2023 decision by the Oklahoma Charter School Board to approve a Catholic school’s application for charter school funding, making it the first religious charter school in the country. The board’s action drew immediate condemnation. BJC Executive Director Amanda Tyler warned that “funding private religious schools with public dollars violates core legal principles protecting religious freedom for all.” Even Oklahoma’s own Attorney General blasted the move as “contrary to Oklahoma law and not in the best interest of taxpayers.” The Oklahoma Supreme Court agreed, striking down the charter school approval as unconstitutional under both the Oklahoma and U.S. Constitutions.

Despite those warning signs, the Supreme Court decided to review the decision. After troubling rulings requiring state funding to include religious institutions in Trinity Lutheran (2017), Espinoza (2020), and Carson (2022), will the Court finally find a religious funding line they won’t cross?

The other case, Mahmoud v. Taylor, involves parents’ challenge to Maryland’s Montgomery County School District’s removing their ability to opt out of reading curriculum assignments that they object to on religious grounds. The Court agreed to review a recent 4th U.S. Circuit Court decision in which the appeals court declined the parents’ request for an injunction that would require the school district to reinstate the opt-out while the litigation is pending.

By a 2-1 vote, the 4th Circuit emphasized that the record of the case is “threadbare” and lacks sufficient evidence that the parents suffered a “cognizable burden” on their religious freedom. The fact that an opt-out from reading assignments is not available, the court wrote, is not in itself enough to satisfy that requirement, writing:

Supreme Court precedent requires some sort of direct or indirect pressure to abandon religious beliefs or affirmatively act contrary to those beliefs. And simply hearing about other views does not necessarily exert pressure to believe or act differently than one’s religious faith requires.

The trial court, which the appeals court upheld, put it even more directly:

“Public schools are not obliged to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the student” violate his or her faith during classroom instruction.
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With or without an opt-out right, the parents remain free to pursue their sacred obligations to instruct their children in their faiths. Even if their children’s exposure to religiously offensive ideas makes the parents’ efforts less likely to succeed, that does not amount to a government-imposed burden on their religious exercise.

Both cases will be heard this term, with a decision expected by the end of June. Stay tuned.