Joshua Z. Rokach

No-go for Oklahoma religious charter school

school building/
school building/

Oklahoma gave a Catholic diocese taxpayer funds for a religious charter school.  Believers in the First Amendment’s Establishment Clause shuddered. Two days later, in Allen v. Milligan, the US Supreme Court, by 5-4, held that a racial gerrymander in Alabama violated the Voting Rights Act. Opponents of the sectarian charter school found new hope.

The voting rights decision, a no-brainer for mainstream judges, came as a surprise from this hyper-partisan Court. Over 40 years ago, Congress strengthened Section 2. In addition to banning election rules having a disparate impact on minorities, the law now included a requirement that states draw legislative districts giving minorities “an opportunity” to elect one of their own. Starting in 1990, states created “minority majority” or near-majority districts.

This past census recorded Alabama’s population growth, mainly from African Americans. This translated into an additional seat in the House. Rather than allow a second African American the chance to go to Congress, the state expanded the existing district, leaving only one minority legislator. Any objective judge would find, as did the lower court, a blatant violation of Section 2. History showed whites hardly voted for African Americans. The new map perpetuated racial discrimination.

However, over the past decade, the Roberts Court has cut the legs out from under voting rights. First, in the face of extensive Congressional findings, the Court repealed Section 5, the requirement that jurisdictions with lower than 50% voter participation had to seek permission in advance from the Justice Department when changing election procedures. That left after-the-fact litigation under Section 2.

The Court had just begun. In a case from Arizona, the Court rewrote that, too. The justices allowed states disproportionately to burden minorities through fewer polling places and hours and voter IDs. Those created “inconvenience” but did not constitute discrimination. The Court also allowed states to suppress minority franchise by eliminating early and Sunday voting, which minorities used extensively. The Court held that the Act outlawed only schemes that existed when the law passed. Finally, states could do anything to combat non-existent voter fraud.

Now, however, the Court drew a line. The majority refused to ignore the “opportunity” requirement, or to hold, as the dissent urged, that apportionment, as opposed to rules applicable to individual voters, lay outside the coverage of the Act. Tellingly, Chief Justice John Roberts’s majority opinion refused to overturn precedent, as the dissent demanded.

What happened? Some see a safety valve for when the Court overturns affirmative action. Others think public disapproval from ethics scandals motivated the outcome. I think Alabama had gone too far. The current majority has always distinguished between partisan skulduggery and racial discrimination. The Court in cases from North Carolina (Republican) and Maryland (Democratic) four years ago washed its hands of partisan (mostly Republican) gerrymandering, but it left open federal challenges to the racial variety. Having given Republicans their wish, the Court saw no need to target African Americans directly.

A similar dichotomy influences the Oklahoma case. When the Court has breached the Establishment Clause in requiring public money to support religious schools, the justices have done so under the guise of the Free Exercise Clause, which forbids government from hindering practice of religion.

The Montana case in which the Court struck down a provision barring tuition money for sectarian schools, the actual program involved tax exemptions to corporations to give parents money pay those expenses. In the Maine case, when the Court required the state to pay tuition to religious schools in rural areas as surrogates for public institutions, the justices cloaked their holding in the fact that the state gave the money to parents. The Court claimed it was giving parents the right to exercise their religious beliefs in how to educate their children.  .

Even when weakening the Establishment Clause through direct grants, the Court never allowed direct support of religion. The Court required nonsectarian funding for facilities such as for playgrounds. Along the same lines, states may pay for transportation and remedial services, such as speech therapists, but not indoctrination.

Approving funds for charter schools involves the government directly funding religion. The Catholic academy will operate as a public school. It would also violate long-standing precedent, when New York could not create a school district comprising yeshivot only. Though the Court has changed its Establishment Clause jurisprudence, even the new standard (history and tradition) would not countenance such a brazen outcome.

Just as important, proponents of government funded religious education accomplish their goals under current law. Why stir the pot?

About the Author
Joshua Z. Rokach is a retired appellate lawyer and a graduate of Yale Law School.
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