The Supreme Court Will Get Another Shot at Church-State Separation

At issue in Drummond were two significant constitutional questions. First: Are privately run charter schools state actors if they are publicly approved and funded? And second: If they are public, does the First Amendment’s free exercise clause prohibit a state from excluding religious schools from its charter school program—or does the establishment clause require it to exclude them?

In 2023, the Statewide Virtual Charter School Board approved St. Isidore as a virtual charter school. However, contrary to state law, the board excluded terms from its standard contract with charter schools requiring any charter school to be “nonsectarian in its programs, admission policies, employment practices, and all other operations.” This exception raised concerns that the school could reserve the right to discriminate in admissions, hiring, or discipline on religious grounds, potentially barring or expelling LGBTQ+ students or staff or denying services to students with disabilities.

As Rachel Laser, president and CEO of Americans United for Separation of Church and State, pointed out in an interview, “The establishment clause provides us the freedom to control our own bodies, freedom to live as LGBTQ+ people, freedom to read and learn, freedom to access health care on equal grounds with others, freedom to access jobs and stores and public accommodations, freedom to access social services, and freedom to receive a good public education.”