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In recent years, Principal Leadership has published several Legal Matters columns focused on the intersection of education and religion (Lewis & Cattell, 2023; Lewis & Eckes, 2024). In this article, we build on this foundation, touching on two important issues that involve the First Amendment’s Establishment Clause: public funding for religious schools and religious messages or texts in public schools. Our focus on these issues stems from three events that have emerged over the last year, particularly a court ruling in a case involving a religious charter school, a Louisiana law requiring the posting of the Ten Commandments in public schools, and a directive from the Oklahoma state superintendent requiring that a Bible be placed in every public school classroom. We discuss each of these events in greater detail, with particular attention to their legal dimensions.

Oklahoma Charter School Case

In Drummond v. Oklahoma Statewide Virtual Charter School Board (2024), the Oklahoma Supreme Court ruled 6–2 that a contract establishing St. Isidore, a religious virtual charter school approved by the Oklahoma Charter School Board, was unconstitutional. The court held that a religious charter school receiving state funds but controlled by dioceses violated the law. As noted by Lewis & Eckes (2024), the case centered on whether St. Isidore acted as a state actor or a private entity.

The court determined that St. Isidore, as a state actor, violated state constitutional provisions and the Establishment Clause of the U.S. Constitution. The Charter School Board and St. Isidore claimed that St. Isidore is a “private corporation contracting with the State,” not a public school. In its ruling, the court clarified that a private entity can be considered a state actor if there is a strong connection between the state and the private action—a connection found in this particular case.

Moreover, the court also found that the contract between the Charter School Board and St. Isidore violates the Establishment Clause, stating that the provision “prohibits government spending in direct support of any religious activities or institutions.” In the contract, St. Isidore plans to “incorporate Catholic teachings into every aspect of the school, including its curriculum and co-curricular activities.” According to the court, as a governmental entity and a state actor, St. Isidore’s educational philosophy must adhere to the Establishment Clause.

Although the U.S. Supreme Court has not yet decided a case involving a religious public school, recent decisions do indicate that the Court is more amenable to religious freedom arguments than it has been in the past. For example, cases such as Carson v. Makin (2022), Espinoza v. Montana Department of Revenue (2020), and Trinity Lutheran v. Comer (2017) constitute a line of cases that support the flow of public funding to religious schools, although these cases involved traditional private religious schools. (For further discussion of these cases, see Lewis & Cattell, 2023.) The Oklahoma Charter School Board has asked the Supreme Court to take on the case, so the ultimate implications of the case remain unclear.

Religious Messages in Public Schools

For many years, courts have grappled with the idea of religious texts and the teaching of religion in public schools. Recent events invite us to revisit these issues. Below, we discuss the contemporary and historical context for each of them.

Louisiana Ten Commandments Statute

In May 2024, the state of Louisiana passed a bill requiring that the Ten Commandments be displayed in every classroom by January 1, 2025, along with a context statement. The law requires that posters or framed versions be 11 inches by 14 inches, with large and easy-to-read text. Under the law, schools have the discretion to post the Ten Commandments in tandem with other documents such as the Declaration of Independence, the Mayflower Compact or the Northwest Ordinance.

In many ways, the Louisiana law resembles a 1980 case in which the Supreme Court deemed unconstitutional a Kentucky law that required posting the Ten Commandments in every public school classroom, paid for by private funding (Stone v. Graham, 1980). To reach its decision, the Court relied on Lemon v. Kurtzman (1971), which created a three-pronged test, one part of which required that a state statute have a secular purpose. Interestingly, in a recent Supreme Court case, the Court abandoned the “Lemon Test,” adopted a “new ‘history and tradition’ test,” and “call[ed] into question decades of subsequent precedent that it deems ‘offshoots’ of that decision.” (See Lewis & Eckes for more information about this case.) The current challenge to the Louisiana law is currently in the early stages of litigation, making it an important case for education leaders to follow. Early decisions from the district court and the court of appeals have placed the law on hold (Associated Press, 2024).

Oklahoma Bible Directive

In June 2024, Oklahoma’s State Superintendent of Public Instruction issued a directive requiring that all public schools incorporate the Bible “as an instructional support into the curriculum across grade levels.” The memo to superintendents across the state noted that this “is not merely an educational directive but a crucial step in ensuring our students grasp the core values and historical context of our country” (Walters, 2024).

Oklahoma’s directive is situated within a long history regarding religious texts and messages in schools. For example, in 1963, the Supreme Court ruled in Abington v. Schempp that a Pennsylvania Law that required public schools to read the Bible at the beginning of each school day was unconstitutional. The Court provided a particularly noteworthy statement regarding the separation of church and state:

The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality.

The role of religion has also come up in the context of the science curriculum. For example, in Edwards v. Aguillard (1987), the Supreme Court ruled that a Louisiana statute prohibiting the teaching of evolution, unless accompanied by “creation science,” was unconstitutional. Overall, from a legal perspective, there is a difference between teaching religion and teaching about religion (U.S. Department of Education, 2023) and this distinction will likely be an important consideration as the court considers a recent challenge to Oklahoma’s Bible directive.

Conclusion

The wall of separation between church and state continues to challenge schools and the courts. It will be important for education leaders to follow the legal developments in their jurisdiction so that they understand their legal obligations.

Interestingly, given the media coverage that Oklahoma and Louisiana have received related to the issues described in this article, news outlets identified Ryan Walters, state superintendent of Oklahoma, and Cade Brumley, state superintendent of Louisiana, as potential contenders for the role of U.S. secretary of education in the Trump Administration (Klein, 2024). While the Administration has selected a different candidate for secretary of education, the topics addressed in this column and other related issues are likely to receive a great deal of attention in months and years to come.

Maria M. Lewis, JD, PhD, is an associate professor of education at Pennsylvania State University. She teaches courses on education law and leadership for equity, diversity, and inclusion. Ethan Lin is a sophomore at Amherst College, majoring in law, jurisprudence, and social thought.

References

Abington School District v. Schempp, 374 U.S. 203 (1963).

Louisiana law requiring schools to post the Ten Commandments in classrooms remains blocked. (2024, November 20). Associated Press. pbs.org/newshour/nation/louisiana-law-requiring-schools-to-post-the-ten-commandments-in-classrooms-remains-blocked

Drummond v. Oklahoma Statewide Virtual Charter School Board, 2024 OK 53 (2024).

Carson v. Makin, 142 S. Ct. 1987 (2022).

Edwards v. Aguillard, 482 U.S. 578 (1987).

Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020).

Klein, A. (2024, October 15). Who could be Donald Trump’s next secretary of education? Education Week. edweek.org/policy-politics/who-could-be-donald-trumps-next-education-secretary/2024/10

Lemon v. Kurtzman, 403 U.S. 602 (1971).

Lewis, M., & Cattell, M.J. (2023, January). Religion, education, and the Supreme Court. Principal Leadership. nassp.org/publication/principal-leadership/volume-23-2022-2023/principal-leadership-january-2023/legal-matters-january-2023/

Lewis, M. & Eckes, S. (2024, February). Charter schools as public or private actors. Principal Leadership. nassp.org/publication/principal-leadership/volume-24-2023-2024/principal-leadership-february-2024/legal-matters-february-2024/

Stone v. Graham, 449 U.S. 39 (1980).

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017).

U.S. Department of Education (2023). Guidance on constitutionally protected prayer and religious expression in public elementary and secondary schools. ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html

Walters, R. (2024, June 27). Immediate implementation of foundational texts in curriculum. documentcloud.org/documents/24780673-immediate-implementation-of-foundational-texts-in-curriculum