Supreme Court Could Put New Face on Public-School Segregation

Advocates are urging the US Supreme Court to tear out the nation’s public-school tradition by its roots.

On April 30, privatization campaigners in the case of in Oklahoma Statewide Charter School Board v. Drummond will ask the court to force Oklahoma to fully fund a private religious school that limits admission to students who agree to be evangelized in religious beliefs they must accept or “end up in hell.”

Funding public charter schools without funding private religious schools, these advocates argue, would be religious discrimination.

If the court buys the argument, all 45 states that currently fund public charter schools would have to include private religious schools among them.

Over time, the ruling would replace the religious diversity of American public schools with taxpayer-funded private religious segregation—upending the nation’s 250-year commitment, in Noah Webster’s words, to imbue “American youth” of all different religious faiths with “an inviolable attachment” to democratic government.

Seldom do cases before the court go to the heart of the nation’s constitutionally assured form of democratic governance. This case does, as we and others argue in a friend-of-the-court brief on behalf of parents, teachers, operators of diverse charter schools, and civil rights advocates.

While insisting on Americans’ freedom to seek heavenly grace however they want, the nation’s Founders deeply feared, as James Madison put it, that “zeal for different opinions concerning religion” could irrevocably divide the public and “excite their most violent conflicts.” The solution, the Founders believed, was to educate children of all religions together in nondenominational public schools committed to equality across all faiths.

Starting with Thomas Jefferson, therefore, they embedded in the “Republican form of government” to which the Constitution’s Article IV would soon commit the nation, the fundamental requirement of publicly operated and funded nonsectarian schools open to all.

Two years after he drafted the Declaration of Independence, Jefferson proposed that Virginia educate all children together “without regard to wealth, birth or other accidental condition or circumstance” in schools free from religious instruction. Jefferson recognized that families would shun schools preaching faiths different from their own, segregating schools by religion, and encouraging the divisions the founders feared would tear the nation apart.

The early nineteenth century’s Common Schools Movement spread public schools from New Hampshire to Nevada. As Horace Mann argued, for such schools to serve their role in the nation’s constitutionally assured democracy, they had to be “open to all, good enough for all, and attended by all,” and all had to teach “the first great principle of a republican government”: equality among religiously diverse peoples.

Following the Civil War, Congress—convinced that secession never would have happened if southern states had provided free schools for Black and White children—conditioned southern states’ return to the Union on their providing systems of free public schools for all.

Thereafter, Congress conditioned all new states’ admission to the Union, including Oklahoma’s, on their provision of a “republican form of government” that included a commitment to operate and reserve funding for “public” schools “open to all” and “free from sectarian control.”

In nearly every year since 1888 (the first year statistics were kept), about 90% of the nation’s school children have enrolled in public nonsectarian schools, forming the “bonds of obligation” that “make society cohere.”

Black citizens’ advocacy in the Supreme Court in Brown v. Board drove the nation’s final steps to open public schools to all and to incentivize the fullest possible participation of children different from each other in public schools free from pressure for religious conformity.

Of course, to attract all students, public schools constantly must improve how they prepare them for fulfilling lives. To accomplish that, Oklahoma and many other states have opened charter and other innovative public schools.

Making religious competition and segregation the cost of innovation would have the opposite effect. It would deny to the states the republican form of government that the Constitution promises.

Proponents of religious segregation claim the 50-state consensus on nondenominational public schooling is anti-religious and anti-Catholic. Nothing could be further from the truth.

From the start, leaders of all faiths promoted nondenominational public schooling to preserve the principle of religious freedom and prevent any sect from achieving dominance.

In 1835, Catholic and Protestant clergy jointly demanded Michigan’s first-in-the-nation constitutional ban on sectarian public schools. Indiana did so a decade later to end divisive competition among Protestant sects for public funding for schools. A year away from being elected the nation’s first Catholic president, Massachusetts Sen. John F. Kennedy voted to admit Alaska and Hawaii to the union on condition that they operate nondenominational public schools.

The Supreme Court now stands between the nation’s tradition of nondenominational public schools and publicly funded religious segregation—between the preservation of our diverse democracy or its splintering into sectarian pieces.

The Supreme Court has faced this duty before. After Brown, states sought to avoid racial integration by closing public schools and funding White flight to religious academies. But the court stood resolute, ordering states to reopen public schools and integrate them “forthwith.”

Having willed the nation 70 years ago to racially integrate its schools, the court must resist demands today to resegregate them along religious lines, so they can continue improving and preparing Americans for the rigors of republican citizenship.

The case is Oklahoma Statewide Charter School Board v. Drummond, U.S., No. 24-396, to be argued 4/30/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

James Liebman is professor of law and Bennett Lunn is a third-year law student at Columbia Law School. They contributed to an amicus brief in the case supporting the state of Oklahoma.

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