Opinion | Oklahoma Breaches the Wall Between Church and State

If I had to sum up the current debate within the American right, I’d describe it as a contest between liberty and authority. To what extent should the political project of the conservative movement focus on the preservation of individual and institutional freedom versus expanding the power of the state to advance conservative ends? This was at the heart of my recent critique of Ron DeSantis when he officially entered the race for the Republican presidential nomination, and it’s at the heart of my larger breach (along, of course, with profound concerns about character) with the Trumpist, nationalist right.

The dispute between liberty and authority has become a subtext of the Republican presidential primary. You can see it when Nikki Haley challenges DeSantis for using state resources to punish Disney for opposing Florida laws that restrict instruction on sexual orientation and gender identity in public school classrooms. You can see it when Asa Hutchinson says “it’s not the role of government to punish a business when you disagree with what they’re saying or a position that they take.” Tim Scott has said much the same thing, agreeing that it’s improper to weaponize government against private corporate expression.

You can see this dispute perhaps most starkly in the state-by-state conflicts over education. To what extent should the education culture wars be resolved by liberty or by authority? The liberty side of the argument seeks greater school choice, so that parents from all income backgrounds can enjoy the kinds of choices that wealthy parents take for granted. It also respects the free speech rights of students and the academic freedom of professors, so that the state doesn’t become the final arbiter of truth.

The authority side, by contrast, believes that someone’s worldview will control our schools, so it should be theirs. This is the impetus behind speech codes, which can dramatically inhibit free speech on campuses. This is the impetus behind the raft of anti-C.R.T. laws and other educational gag orders, which attempt to tightly regulate instruction about race, gender, and sexual orientation in public schools. This is one reason fights over library books are so contentious. The focus on regulating the ideas that students are exposed to is explicitly intended for the purpose of shaping their beliefs and ideology.

And that brings me to the mistaken decision of the Oklahoma Statewide Virtual Charter School Board to approve “the nation’s first religious charter school” earlier this week — a decision that split Oklahoma Republicans. The Republican governor, Kevin Stitt, praised the board, while the Republican attorney general, Gentner Drummond, said that board members “violated their oath in order to fund religious schools with our tax dollars.”

Why the stark divide? The reason is simple: Despite widespread confusion about their status, charter schools are public schools, meaning that Oklahoma has created and sanctioned a Catholic public school in the state. It has clothed a Christian institution with state authority.

To understand the conceptual and constitutional problems with this decision, it’s necessary to understand a bit more about charter schools. While they tend to operate separately from local public school districts (and often have private management), they’re creations of state law, highly regulated and publicly funded. The Oklahoma City Public Schools website, for example, describes charter schools as “innovative, nonsectarian public schools” that are “open to all children” and “do not charge tuition.”

Last fall, the Fourth Circuit Court of Appeals ruled that a North Carolina charter school called the Charter Day School was a state actor and thus subject to constitutional restrictions on the school’s authority. Specifically, the school’s dress code — which required girls to wear skirts, jumpers or skorts as part of an effort to “preserve chivalry and respect among young women and men” — violated the Equal Protection Clause of the 14th Amendment.

The ruling doesn’t bind Oklahoma (which is part of the Tenth Circuit), but it’s still the leading case on the subject, and it’s currently on appeal to the Supreme Court. We don’t yet know if the Supreme Court will act, but the very idea that a religious institution should be either clothed with state authority or subject to state control — let alone both — is antithetical to the constitutional balance struck by the First Amendment’s Establishment Clause and Free Exercise Clause.

At their philosophical core, the two clauses work together to pre-empt the kinds of religious conflicts that have ripped apart so many nations and cultures. The Establishment Clause declares that no church can control the state (nor can the state control the church), thus lowering the stakes of political conflict so that politicians have minimal influence over religious doctrine.

In exchange, the free exercise and free speech clauses guarantee that religious organizations enjoy extraordinary freedom and autonomy. Decades of SCOTUS precedent have now established that states can’t discriminate against religious individuals or institutions in the provision of state benefits, can’t target religious expression for state punishment and, critically, can’t regulate the hiring or firing of ministerial employees.

This conflict between liberty and power isn’t confined to the right, however. The left faces its own divisions, particularly on college campuses. In April, I wrote about how multiple mainstream academic institutions are pushing back against censorship demands that often come from the left. And last month, a conservative legal group filed a lawsuit challenging a raw exercise of power from the University of California system, namely the inclusion of mandatory diversity, equity and inclusion (D.E.I.) statements from candidates applying for jobs in the state system.

These D.E.I. statements are not meaningless formalities. Indeed, powerful evidence suggests that they’re used as ideological litmus tests for new faculty hires. As my colleague Pamela Paul pointed out in a recent column, “At the University of California, Berkeley, for example, in the hiring cycle from 2018 to 2019, three-quarters of applicants for a set of five faculty positions in the life sciences were eliminated on the basis of these statements alone.”

In other words, it’s not just the religious right that is conflicted on the question of freedom versus authority. It’s not just conservatives who seek to restrict American debate by limiting the viewpoints to which students are exposed.

If you subscribe to this newsletter, you might note that I sometimes swing back and forth between critiquing left and right, noting how similar maladies afflict both movements. In fact, it’s remarkably common to find mirror-image excesses and abuses on both sides. I’ve also previously discussed the concept of “horseshoe theory,” the idea that as right and left become more extreme they become more alike.

And so it is in the educational culture wars. Extremes on each side are so preoccupied with gaining the advantage in teaching the next generation that they forget that a core purpose of American schooling is to prepare students, in the words of the Supreme Court justice William Brennan, “for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.”

Both religious liberty and religious disestablishment are vital elements of American pluralism. Oklahoma shouldn’t discriminate against religious expression, but it must not create state religious schools. Clothing any church institution with state power is bad for the church and bad for the state. Oklahoma conservatives can and should advance their values through the exercise of liberty, not by breaching the barrier between church and state.

David French is a New York Times Opinion columnist. He is a lawyer, writer and veteran of Operation Iraqi Freedom. He is a former constitutional litigator, and his most recent book is “Divided We Fall: America’s Secession Threat and How to Restore Our Nation.” @DavidAFrench

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