A new religious charter school fight is brewing in Tennessee that has the potential to challenge a deadlock vote at the Supreme Court earlier this year that denied the creation of a similar institution in Oklahoma.
A lawsuit was recently filed in Tennessee to challenge a state law that bans religious charter schools after the state attorney general issued a legal opinion in favor of such institutions, which opponents argue flagrantly violate the separation of church and state.
Back in May, the Supreme Courtdeadlocked on the constitutionality of a religious charter schoolin Oklahoma, which would have been the nation's first, after Justice Amy Coney Barrett recused herself from the case due to personal connections to one of the plaintiffs.
But this new effort could allow for all the justices to vote if it is eventually taken up by the high court.
"Obviously, the Supreme Court did not come to a decision in the Drummond case. They were split evenly. And so, this case is a live issue. This matter is a live issue that the court, I think, wants to address, but is obviously going to have to have a vehicle by which to address it, which requires a lawsuit. Maybe this will be the one or not," said Jeremy Dys, senior counsel at the First Liberty Institute.
Tennessee Attorney General Jonathan Skrmetti's legal opinion released late last month argues the Supreme Court "held that excluding religious entities from a public benefit 'solely because of their religious character' penalizes free exercise and triggers the 'most exacting scrutiny.'"
Only a few days later, Christian nonprofit Wilberforce Academy sued the Knox County School Board for alleged discrimination over a ban against religious charter schools.
While the process in Tennessee has only just begun, legal observers say it could follow a similar path to the one in Oklahoma, where state officials were at odds over a virtual Catholic school that was set to see taxpayer funding.
"I think there are certainly activists on the right that are looking, that were disappointed that one of the conservative justices had to recuse herself, and are looking for another way for the court to say, 'Hey, this is fine, right?' So, the court doesn't always take cases that are very similar back-to-back, but I could see this being possible," said George Theoharis, a professor at the School of Education at Syracuse University.
The conservative members of the Supreme Court, apart from Chief Justice John Roberts, had been friendly to the idea of a religious charter school, while the liberal justices balked at the idea.
"They're not asking for special treatment. They're not asking for favoritism," Justice Brett Kavanaugh said during oral arguments. "They're just saying, 'Don't treat us worse because we're religious.'"
Charter schools present themselves as another public school option and receive public funding but are run independently and have more freedom in terms of enrollment and curriculum.
Opponents say a religious charter school could fundamentally change how the country approaches public education.
"I think it becomes a really slippery and dangerous slope for our public schools in our schooling system … this country was built on the idea of religious liberty, religious freedom, and that means that the government doesn't take a position on religion, and publicly funding religious schools is a reversal of that," said Theoharis.
The next step in Wilberforce Academy's lawsuit will be arguments and a decision from the United States District Court for the Eastern District of Tennessee.
And there is no guarantee the case will reach all the way to the nation's highest court.
"I think it's speculative to say that this case would make it to the Supreme Court. We don't really know whether the Supreme Court would be interested in a case like this. There are a number of reasons why this case wouldn't be appropriate for Supreme Court review. For one, at this point, there does not appear to be a split among lower courts," said Patrick Elliott, legal director for the Freedom from Religion Foundation.
"Secondly, this issue really relates a lot to state law. And so, there may be state law reasons why this type of charter school couldn't form, regardless of if it's affiliated with a particular religion or religious institution. And so, I think this case hopefully would end at the district court with the Knox County Board prevailing," he added.
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