“A holding here may apply in some states and may not apply in others,” Justice Neil Gorsuch observed Wednesday as the Supreme Court heard arguments about the constitutionality of publicly funded religious charter schools — displaying the caution this case demands.
We won’t try to second-guess how the Supremes should rule on the specific issue of whether Oklahoma public funds can (or maybe must?) go to St. Isidore, an online charter proposed by two Catholic dioceses.
But we absolutely hope the justices don’t attempt to set some needless national standard, declaring all charters to be “public” or “private” when it comes to the First Amendment’s ban on laws either establishing religion or restricting religious liberty.
Here in New York, charters are clearly public schools, albeit privately run — and their great success here rests on that balance; we pray the high court doesn’t upset it.
Generally speaking, it’s plain that denying (most) public funding to private religious schools does not impinge on the free exercise of religion, while using public funds for voucher or scholarship programs that can pay for attendance at religious schools does not “establish” religion.
Frankly, we’d warn any faith-based school against directly taking public money even if it were constitutional: That cash always comes with strings, as Harvard and other elite universities are now horrified to discover.
Meanwhile, the balance of political power in the Empire State is such that if the Supremes find that states must allow religious charters if they allow any charters at all, you’d most likely see the end of all charters — or, at least, the end of the independence that allows these schools to succeed.
New York’s teachers unions would love an excuse to have their Albany pawns and allies repeal the 30-year-old charter-school law, or bring charters directly under the control of local public-school bureaucracies (which the unions routinely bully if they don’t control them outright).
We understand that the justices need to rule on what the law actually says, without regard to the political or policy impact — but that duty extends to not forcing a reading of the law that imposes a single meaning on a term like “charter school.”
With sufficient humility, the high court can do right by Oklahoma (whatever that turns out to mean) without interfering with New York and other states’ educational policies.
After all, the people who wrote the Constitution and Bill of Rights also marched under banners reading, “Don’t tread on me.”
This story originally appeared on NYPost
