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How a Supreme Court ruling might upend Washington charter schools

History change and skewed constitutional provisions may soon wipe out Washington state’s public schools. A case in the US Supreme Court would make this happen.

The Supreme Court’s challenge to Maine’s ban on using taxpayer money to enable rural children to attend private religious schools could have surprising effects here in Washington state. There are no public schools in many isolated areas of Maine, so the state pays to send affected children to private schools — as long as those schools are non-religious. But during oral arguments on December 8, the majority of justices appeared inclined to rule that Maine’s exclusion of religious schools violated the First Amendment protections for the “free exercise” of religion.

A court ruling against Maine will set off a chain of events that will eventually end in the independent public schools in our state. Here’s why and how it will happen.

The Washington Constitution of 1889 contains one of the strongest provisions for religious freedom in America. Article 1, Section 11, states that “absolute freedom of conscience in all matters of religious sentiment, belief and worship is guaranteed to every individual. But this is followed by a declaration: “No money or public property shall be appropriated or used in any worship, practice or religious education or support any religious institution.

Furthermore, the Public Schools Section of the State Constitution states: “All schools subsidized or subsidized in whole or in part by public funds shall be forever free from communal control or influence.”

For more than a century, our Supreme Court has repeatedly and categorically prohibited the use of any public funds to directly or indirectly support religious education or denominational institutions. In 1918, the court ruled that it violated the state constitution requiring teachers to spend time marking religious education exams taken by students off-site. The court opinion also said that the courses focused on the Protestant Bible of King James, and thus indirectly discriminated against Catholic, Jewish, and Muslim students.

In multiple cases spanning decades, our court has invalidated state laws funding bus transportation for parish students, education grants for low-income children in private religious schools and vocational education grants for a blind graduate student seeking to study in ministry.

Twenty years ago, the legislature established a merit scholarship program with scholarships for high school graduates at any college—as long as it was nonsectarian institutions. Joshua Davy’s challenge to this program went to the US Supreme Court, where a majority ruled in 2003 that it did not interfere with Davy’s freedom of worship and that the state’s policy of not funding religious learning was part of a long American tradition that must be respected.

But the Supreme Court now has new members who give more importance to the exercise of freedom of religion than to the separation of church and state. It seems likely that the Court will rule that a state program that provides subsidies for non-religious education, but excludes religious educational institutions, violates the First Amendment guarantee of religious freedom. And that’s exactly what will affect the charter public schools in Washington State.

Because of the state constitution’s prohibition of any taxpayer money for religious purposes or for denominational education, the 2012 Charter School Initiative stipulated that any private sponsor of a charter school must be a non-profit organization but “shall not be a denominational or religious organization.” In other words, the legislature may not allocate money that will eventually fall into the hands of a private K-12 school with a religious basis.

When the US Supreme Court ruled in 2020 that a Montana law providing educational assistance to parents who send their children to private secular schools, but not religious schools, violates the First Amendment, it marked the earlier case of Josh Davey. But if the Maine Supreme Court rules that when states spend money on education, they may not differentiate between secular and sectarian institutions, the ruling will likely not continue to discriminate Josh Davy, and Washington will have to spend public money on religious schools — which it cannot do It is under the constitution of our country.

Our charter public school program is discretionary, and there is no mandate that Washington has any charter schools at all. If the state wants to continue to establish independent schools, the only possible solutions to the Supreme Court ruling against Maine is that Washington can amend its constitution to allow public money for religious schools, or our state Supreme Court can overturn centuries of decisions. Or the legislature could drop charter schools altogether.

The third option is a possible option. The state’s constitutional amendment requires a two-thirds vote in the legislature, and a majority of lawmakers are already questioning charter schools. The state Supreme Court is unlikely to change course after 100 years of consistent rulings. So the likely outcome would be the end of publicly funded charter schools in our state. This may disappoint independent school advocates. But appointments to the Supreme Court have consequences — some of which are unforeseen.

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