Amicus Curiae Brief — Oklahoma Statewide Charter School Board, et al., Petitioners v. Gentner Drummond, Attorney General of Oklahoma, ex rel. Oklahoma

Nos. 24-396, 24-394

In the Supreme Court of the United States

ST. ISIDORE OF SEVILLE CATHOLIC VIRTUAL SCHOOL,

Petitioner,

v.

GENTER DRUMMOND, Attorney General

of Oklahoma, ex rel. STATE OF OKLAHOMA,

Respondent.

OKLAHOMA STATEWIDE CHARTER SCHOOL, et al.,

Petitioner,

v.

GENTER DRUMMOND, Attorney General

of Oklahoma, ex rel. STATE OF OKLAHOMA,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF OKLAHOMA

BRIEF OF AMICUS CURIAE

PROFESSOR CHARLES L. GLENN

IN SUPPORT OF PETITIONERS

ERIC N. KNIFFIN

Counsel of Record

ETHICS AND PUBLIC

POLICY CENTER

1730 M Street N.W.

Suite 910

Washington, DC 20036

(202) 682-1200

ekniffin@eppc.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE............................ 1

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT ............................................................... 5

I.

States Uniformly Provided Funds to

Schools to Support Religious Instruction ........... 5

A. New England States Funded Religious

Instruction ...................................................... 6

B. Mid-Atlantic States Funded Religious

Teaching ....................................................... 13

C. Southern States Funded Religious

Instruction .................................................... 18

II. The Limited Federal Education Programs

in the Early Republic Reached Religious

Use ...................................................................... 20

A. The Federal Government Funded

Missionaries to Teach Christianity to

Native Americans, Including in

Oklahoma ..................................................... 21

B. The Freedman’s Bureau Partnered with

Religious Groups to Provide Religious

Instruction .................................................... 25

C. Congress Funded Religious Education

in Federal Jurisdictions ............................... 27

III. Restricting Generally Available Aid Based

on a School’s “Religious Use” Violates the

Free Exercise Clause ......................................... 28

CONCLUSION ......................................................... 33

ii

TABLE OF AUTHORITIES

Cases

Cantwell v. Connecticut,

310 U.S. 296 (1940) .................................................. 4

Carson v. Makin,

596 U.S. 767 (2022) .................................... 28, 29, 30

Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah,

508 U.S. 520 (1993) ................................................ 28

Espinoza v. Mont. Dep’t of Revenue,

591 U.S. 464 (2020) ........................................ passim

Locke v. Davey,

540 U.S. 712 (2004). ..................................... 5, 19, 28

Marsh v. Chambers,

463 U.S. 783 (1983). ............................................... 20

Roman Cath. Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020) .................................................. 29

Roper v. Simmons,

543 U.S. 551 (2005) .................................................. 1

S. Bay United Pentecostal Church v. Newsom,

140 S. Ct. 1613 (2020) ............................................ 28

Town of Greece v. Galloway,

572 U.S. 565 (2014) ................................................ 31

Trinity Lutheran Church of Columbia, Inc.

v. Comer,

582 U.S. 449 (2017) ................................ 4, 28, 29, 30

iii

Constitution and Statutes

U.S. Constitution

amend. I.......................................................... passim

amend. XIV .......................................................... 5, 6

Act of May 20, 1785 ................................................... 26

Northwest Ordinance (July 13, 1787)....................... 27

A Treaty Between the United States of America

and the Kaskaskia Tribe of Indians,

7 Stat. 78 (1803) ..................................................... 22

Act of July 16, 1866, 14 Stat. 173 ............................. 25

Resolve of Feb. 28, 1793, ch. 62, reprinted in

[1792-93] Acts and Laws of the

Commonwealth of Massachusetts 256 (1895) ......... 2

Resolve of Feb. 27, 1797, ch. 44, reprinted in

[1796-97] Acts and Laws of the

Commonwealth of Massachusetts 307 (1896) ... 2, 12

Resolve of Feb. 27, 1797, ch. 45, reprinted in

[1796-97] Acts and Laws of the

Commonwealth of Massachusetts 309 (1896) ......... 3

Act of June 20, 1807, ch. 22, 1807 Mass. Acts

192 ............................................................................ 3

Act of Feb. 16, 1814, ch. 125, 1814 Mass. Acts

373 ............................................................................ 3

iv

Other Authorities

Archdiocese of Oklahoma City, The Oklahoma

Catholic Native School Project (last visited

March 11, 2025) ..................................................... 24

R. Pierce Beaver, Church, State, and the

American Indians (1966) ........................... 22, 23, 25

Eugene Alfred Bishop, The Development of a

State School System: New Hampshire (1930) ......... 7

Elmer E. Brown, Secondary Education in the

United States: The Academic Period,

6 Sch. Rev. 357 (1898)............................................ 13

Elmer E. Brown, Secondary Education in the

United States: The Academy Period,

6 Sch. Rev. 225 (1898)............................................ 12

The Concession and Agreement of the Lords

Proprietors of the Province of New Caesarea,

or New Jersey (1664) .............................................. 14

The Concessions and Agreements of the

Proprietors, Freeholders and Inhabitants of

the Province of West New-Jersey in America

(1677) ...................................................................... 14

The Constitution of Phillips Academy, in

Andover (1828) ................................................... 2, 13

Lawrence A. Cremin, American Education: The

National Experience, 1783-1876 (1988) .................. 8

Donald L. Drakeman, Church, State, and

Original Intent (2010) ............................................ 25

v

James W. Fraser, Between Church and State:

Religion and Public Education in a

Multicultural America (1999) ........................ passim

Richard J. Gabel, Public Funds for Church and

Private Schools (1937) ................................... passim

Charles L. Glenn, African-American/AfroCanadian Schooling: From the Colonial

Period to the Present (2011) ............................. 25, 26

Charles L. Glenn, The Ambiguous Embrace:

Government and Faith-Based Schools and

Social Agencies (2000)............................................ 30

Charles L. Glenn, American Indian/First

Nations Schooling: From the Colonial Period

to the Present (2011)............................................... 21

Charles L. Glenn, The American Model of State

and School: An Historical Inquiry (2012) ..... passim

Charles L. Glenn, The Myth of the Common

School (1998) .................................................. passim

Philip Hamburger, Separation of Church and

State (2002) ...................................................... 16, 17

Jean F. Hankins, Settling Oxford County:

Maine’s Revolutionary War Bounty Myth,

42 Me. Hist. 135 (2005) ............................................ 2

Historical Sketch of School Legislation in the

State of Maine,

6 Conn. Common Sch. J. 355 (1852)........................ 7

John C. Jeffries, Jr. & James E. Ryan, A

Political History of the Establishment Clause,

100 Mich. L. Rev. 279 (2001) ..................... 10, 17, 31

vi

Jacqueline Jones, Soldiers of Light and Love:

Northern Teachers and Georgia Blacks,

1865-1873 (1980) .............................................. 24, 25

Lloyd P. Jorgenson, The State and the NonPublic School, 1825–1925 (1987) ................. 8, 16, 19

Robert H. Keller, Jr., American Protestantism

and United States Indian Policy, 1869-82

(1983) ............................................................ 6, 21, 23

K. Tsianina Lomawaima, They Called It

Prairie Light: The Story of Chilocco Indian

School (1994) .......................................................... 23

Michael W. McConnell, Establishment and

Disestablishment at the Founding, Part I:

Establishment of Religion,

44 Wm. & Mary L. Rev. 2105 (2003) ......... 3, 5, 6, 27

Carl H. Moneyhon, Public Education and

Texas Reconstruction Politics, 1871–1874,

92 Sw. Hist. Q. 393 (1989) ..................................... 20

Paul Monroe, Founding of the American Public

School System (1971) ............................................. 14

Francis Paul Prucha, American Indian Policy

in the Formative Years: The Indian Trade

and Intercourse Acts, 1790-1834 (1970) ................ 21

Diane Ravitch, The Great School Wars: A

History of the New York City Public Schools

(2000) .......................................................... 15, 16, 18

vii

Joe M. Richardson, Christian Reconstruction:

The American Missionary Association and

Southern Blacks, 1861–1890 (2009) ...................... 25

Jay Alan Sekulow & Jeremy Tedesco, The

Story Behind Vidal v. Girard’s Executors:

Joseph Story, the Philadelphia Bible Riots,

and Religious Liberty,

32 Pepp. L. Rev. 605 (2005) ................................... 17

U.S. Dep’t of the Interior, Federal Indian

Boarding School Initiative: Investigative

Report, Vol. II (July 2024) ..................................... 24

U.S. Dep’t of the Interior, List of Federal

Indian Boarding Schools (April 2022) .................. 24

George Washington & Henry Knox,

Instructions to the Commissioners for

Treating with the Southern Indians (Aug. 29,

1789), in 1 American State Papers: Indian

Affairs 65 (1832)..................................................... 22

James Pyle Wickersham, A History of

Education in Pennsylvania (1870) ........................ 14

J. Ormond Wilson, Eighty Years of the Public

Schools of Washington—1805 to 1885,

1 Recs. Colum. Hist. Soc’y 119 (1896) ................... 27

1

INTEREST OF AMICUS CURIAE 1

Amicus Charles L. Glenn is a professor emeritus of

educational leadership and policy at Boston

University. He is the author of over 300 articles and

book chapters and over a dozen books, including The

Myth of the Common School and The American Model

of State and School. Members of this Court have cited

his work in prior opinions. E.g., Espinoza v. Mont.

Dep’t of Revenue, 591 U.S. 464, 499–500 (2020) (Alito,

J., concurring); Roper v. Simmons, 543 U.S. 551, 625

(2005) (Scalia, J., dissenting). He regularly appears as

an expert witness in school-funding cases. Prior to his

career in academia, Professor Glenn spent twenty

years as the director of urban education and equity

efforts for the Massachusetts Department of

Education, where he spearheaded the desegregation of

Boston Public Schools.

As an academic whose work has focused

extensively on the history of education, amicus is well

acquainted with this country’s long history of funding

schools that provide education with a religious

character, whether or not those schools have a

religious affiliation. He has an interest in the sound

development of this body of law consistent with

historical practice.

SUMMARY OF ARGUMENT

Since its founding in 1778, Phillips Academy in

Andover, Massachusetts has been one of the Nation’s

1 Pursuant to Rule 37.6, no counsel for any party authored this

brief in whole or in part, nor did any such counsel or party make

any monetary contribution intended to fund the preparation or

submission of this brief.

2

most prominent high schools. Notable alumni include

two U.S. Presidents, one Supreme Court Justice,

Olympians, and the beatboxer from the multiGrammy-winning a cappella group Pentatonix. Today,

the school is nondenominational. But from the school’s

founding until deep into the 20th century, the school

embraced a religious outlook. The school’s 1778

constitution defined the schoolmaster’s “duty” as “to

instruct and establish [students] in the truth of

Christianity,” and rated instruction in English, Latin,

Greek, and a host of other secular subjects as more

peripheral to the school’s mission. The Constitution of

Phillips Academy, in Andover 11–12 (1828). And the

school’s Board of Trustees and every faculty member

had to practice the Protestant faith. Id. at 12.

Then as now, governments created generally

applicable grant programs to support schools. In 1793,

the Massachusetts legislature offered land grants “for

the encouragement of Lit[e]rature.” Resolve of Feb. 28,

1793, ch. 62, reprinted in [1792–93] Acts and Laws of

the Commonwealth of Massachusetts 256 (1895). The

grant criteria were neutral: Massachusetts resolved to

aid geographically dispersed academies with adequate

student bases and proven fundraising ability. Resolve

of Feb. 27, 1797, ch. 44, reprinted in [1796–97] Acts

and Laws of the Commonwealth of Massachusetts 307

(1896). All told, Massachusetts made 43 such grants

through 1818. Jean F. Hankins, Settling Oxford

County: Maine’s Revolutionary War Bounty Myth, 42

Me. Hist. 135, 143 (2005).

Phillips Academy was one such recipient, receiving

eighteen square miles in 1797. Resolve of Feb. 27,

1797, ch. 45, reprinted in [1796–97] Acts and Laws of

3

the Commonwealth of Massachusetts 310 (1896).

Phillips Academy’s commitment to instructing

students in the Protestant faith was hardly

disqualifying. Indeed, Massachusetts continued

legislating for the benefit of the school’s “pious

founders and benefactors” for years thereafter. Act of

June 20, 1807, ch. 22, 1807 Mass. Acts 192, 193; Act of

Feb. 16, 1814, ch. 125, 1814 Mass. Acts 373, 374.

This episode was no outlier. From the Founding

through the ratification of the Fourteenth

Amendment, States, localities, and the federal

government repeatedly funded schools through

generally applicable programs like land grants. As a

rule, those governmental programs funded schools

engaged in religious instruction, whether by formally

teaching religion or by infusing all educational

endeavors with a religious worldview. Some of those

schools were affiliated with specific religious groups;

others were the progenitors of modern-day public

schools and professed no single creed. But in the early

Republic, “there was no such thing as a secular school;

all schools used curriculum that was embued with

religion.” Michael W. McConnell, Establishment and

Disestablishment at the Founding, Part I:

Establishment of Religion, 44 Wm. & Mary L. Rev.

2105, 2171 (2003).

Oklahoma played a prominent role in this history,

given that it had 79 federally-funded Indian boarding

schools, more than any other state. About half of these

federally-funded schools were religious and fourteen

were Catholic.

The governments that funded all of these religious

schools saw no distinction between schools based on

4

“religious status” or “religious use.” And the idea that

the government could exclude schools from

governmental grants out of a desire to avoid

supporting religious education would have been

heresy to early generations of Americans. In an era

when many believed that the point of school was to

teach the Christian faith, governments often cited

schools’ religious character as a primary reason

justifying funding.

This history illustrates why singling out schools

that provide religious instruction for disfavored

treatment violates the Free Exercise Clause. The

government may not deny “a generally available

benefit solely on account of religious identity” absent

“a state interest of the highest order.” Trinity

Lutheran Church of Columbia, Inc. v. Comer, 582 U.S.

449, 458 (2017) (cleaned up). That is true whether

“religious identity” refers to the status of being

religious (no discriminating against Catholics) or

doing religious things (no discriminating against

people who attend Mass and take the Eucharist). The

“freedom to act” and the “freedom to believe” are two

sides of the same coin. See Cantwell v. Connecticut,

310 U.S. 296, 303 (1940); Espinoza, 591 U.S. at 510–

11 (Gorsuch, J., concurring). The Free Exercise Clause

thus prohibits the government from forcing schools to

choose between suppressing their distinctively

religious character or bearing the financial burdens of

exclusion from government programs. See Pet.Br.25.

This history also refutes any purported state

interest in avoiding funding of religious education. At

the

Founding,

some

States

expressed

an

antiestablishment interest in not “using tax funds to

5

support the ministry.” Locke v. Davey, 540 U.S. 712,

723 (2004). But no State understood this clergyspecific interest to extend to not funding religious

practices in schools. The suggestion that the

Establishment Clause barred government from

funding religious instruction would have been utterly

foreign at the Founding, at the ratification of the

Fourteenth Amendment, and for every generation in

between. This historical record rebuts any claim that

the First Amendment compels the government to

discriminate against schools cut from the same cloth

as those that dominated American education for the

first half of our Nation’s history.

ARGUMENT

I. States Uniformly Provided Funds to Schools

to Support Religious Instruction

From the Founding, the States took varied

approaches towards both education and religion. New

England States were heavily involved in funding

schools; in the South, governmental funding of any

education was the exception rather than the rule; the

mid-Atlantic States fell in between. When it came to

funding the clergy, the Revolution ended public

funding for the Anglican ministers of the South, who

predominantly backed the British. McConnell, supra,

at 2155. But in New England, compulsory financial

support for the proudly patriot Congregational clergy

thrived after the Revolution. Id. at 2157.

Formal disestablishment also varied. The First

Amendment did not trigger disestablishment. Rather,

States made a series of political decisions to terminate

colonial arrangements by which public funding was

provided to churches: North Carolina in 1776, New

6

York in 1777, Virginia between 1776 and 1779,

Maryland in 1785, South Carolina in 1790, Georgia in

1798, Vermont in 1807, Connecticut in 1818, New

Hampshire in 1819, Maine in 1820, and

Massachusetts in 1832–33. Charles L. Glenn, The

American Model of State and School: An Historical

Inquiry 57 (2012).

Despite these differences, States agreed on one

thing: public support for religious education was

unobjectionable. Well into the 19th century, “most

Americans thought that school prayers, Christian

morals, and the Bible were essential to education.”

Robert H. Keller, Jr., American Protestantism and

United States Indian Policy, 1869–82, at 2 (1983).

Accordingly, from the Founding through the

ratification of the Fourteenth Amendment, States

funded religious instruction as part and parcel of

funding schools.

A. New England States Funded Religious

Instruction

Early New England was the birthplace of American

public education. Across New England, towns

shouldered the costs of colonial schools, but often gave

local clergy responsibility for school curriculum and

even instruction. McConnell, supra, at 2172.

Unsurprisingly, a religious outlook pervaded every

subject that New England schools taught. Students

learned reading from The New-England Primer, which

taught the alphabet with catchy rhymes from A (“In

Adam’s Fall, We sinned all”) to Z (“Zacheus he did

climb the Tree, Our Lord to see”). James W. Fraser,

Between Church and State: Religion and Public

Education in a Multicultural America 10 (1999). Older

7

students tackled the Lord’s Prayer and the

Westminster Catechism. Id. The New England

colonists placed a high value on raising children who

would achieve knowledge of God’s plan of salvation

through independent study of the Bible. Providing for

schools went hand in hand with providing for religious

instruction.

After independence, New England States

continued providing for local schools with taxpayer

funds, and education remained intensely local. In

1851, Maine had some 4,500 school districts,

responding to local demands and subject to no common

direction. See Historical Sketch of School Legislation

in the State of Maine, 6 Conn. Common Sch. J. 355,

362-63 (1852). In 1870, the geographically much

smaller New Hampshire boasted 2,118 school

districts, each responsible for establishing, funding,

and supervising schools for a state population of

318,300. Eugene Alfred Bishop, The Development of a

State School System: New Hampshire 11–12 (1930).

As a result, the thousands of local schools that

sprang up across New England, though not by status

denominational, inevitably took on the religious

character of local communities. The worldview these

local schools presented to their students was thus

distinctively religious: “[M]ost schools made religious

instructions and devotions a normal part of their

program.” Charles L. Glenn, The Myth of the Common

School 86 (1998). Town schools of the era were

“virtually Congregational parochial schools.” Richard

J. Gabel, Public Funds for Church and Private Schools

183 (1937). Connecticut even required schools to teach

the catechism until 1818. Id. at 201. Quite naturally,

8

“the same local evangelical group that originally

organized a Sunday school was often in due course the

prime mover in the establishment of a common school,

in the process overseeing the selection of teachers, the

organization of curricula, and the choice of textbooks.”

Lawrence A. Cremin, American Education: The

National Experience, 1783–1876, at 66 (1988).

In modern terms: these States created generally

applicable programs of taxpayer support for local

schools. Those programs overwhelmingly funded

schools offering religious education, because at the

time, schools focused on imparting the tools students

would need to read and understand the Bible. Denying

funds to schools because they would use those funds to

advance a religious mission would have been

nonsensical.

By the 1830s, social reformers warned that these

local schools were not consistently promoting moral

habits. These reformers called for an expanded state

role in overseeing local efforts and training teachers in

order “to shape future citizens to a common pattern,”

prompting the rise of “common schools.” Glenn,

Common School, supra, at 76. New England States

and local governments continued supporting these

common schools through general taxation, primarily

at the local level. See Lloyd P. Jorgenson, The State

and the Non-Public School, 1825–1925, at 7 (1987).

Again, by offering funding to government-run schools

in general, New England States and localities funded

religious instruction in particular.

The centerpiece of common-school instruction was

“least-common-denominator

Protestantism.”

Espinoza, 591 U.S. at 503 (Alito, J., concurring)

9

(citation omitted). Horace Mann, who became

Secretary of the Massachusetts Board of Education in

1837, was the common-school movement’s leading

light. See id.

To Mann, education served to “elevate mankind

into the upper and purer regions of civilization,

Christianity, and the worship of the true God.” Glenn,

Common School, supra, at 171–72. Mann called on

teachers to “train [children] up to the love of God and

the love of man; to make the perfect example of Jesus

Christ lovely in their eyes; and to give to all so much

of religious instruction as is compatible with the rights

of others and with the genius of our government.” Id.

at 164. As Mann told the Board and the wider public,

“I could not avoid regarding the man who should

oppose the religious education of the young, as an

insane man.” Id. at 168. Similarly, in 1837,

Massachusetts Governor Edward Everett orated

about “the one living fountain, which must water

every part of the social garden, or its beauty withers

and fades away. Of course I mean, sir, moral and

religious, as well as mental education.” Glenn,

American Model, supra, at 60.

Bible reading was ubiquitous. By 1848, Mann

ventured that there was not “a single town in the

Commonwealth in whose schools [the Bible] is not

read.” Glenn, Common School, supra, at 166. Mann

averred that all members of the State Board of

Education recommended “the daily reading of the

Bible, devotional exercises, and the constant

inculcation of the precepts of Christian morality in all

the Public schools.” Id. In practice then, “[e]arly

common schools featured Bible reading, prayer,

10

hymns, and holiday observances.” John C. Jeffries, Jr.

& James E. Ryan, A Political History of the

Establishment Clause, 100 Mich. L. Rev. 279, 297

(2001).

Common schools also used distinctly Christian

textbooks, including the popular McGuffey’s Readers.

Children learned Psalms and read sermons on

temperance. Fraser, supra, at 42. One minister

extolled McGuffey’s, in a statement seemingly written

for a book jacket: “They are excellent for educational

purposes—their religion is unsectarian, true

religion—their morality, the morality of the Gospel.”

Id.

So pervasive was religious instruction in common

schools that Mann was dumbfounded by Protestant

critics who charged that Mann’s common schools were

inculcating the watered-down Unitarianism of

Boston’s liberal elite. Glenn, Common School, supra,

at 186. Mann responded: “if th[e] Bible is in the

schools, how can it be said that Christianity is

excluded from the schools; or how can it be said that

the school system, which adopts and uses the bible, is

an anti-Christian, or an un-Christian system?” Fraser,

supra, at 27. Catholic critics of common schools

agreed, considering common schools to be

overwhelmingly Protestant—and thus “an affront” to

tenets of the Catholic faith. Espinoza, 591 U.S. at 503

(Alito, J., concurring).

The New England common or grammar school of

the early Republic, then, was not religious in official

denominational status, but it was definitely religious

in its use. In rural areas, where often each school

served only a dozen or so families, with a single

11

teacher chosen locally, it was not difficult to reflect the

religious convictions of this limited clientele. People

who shared common views often chose to live near

each other, or propinquity led to common views. In

such cases, common public schools could be distinctive

in terms of religious content in the curriculum as well

as in using Bible readings and Christian hymns as

opening ceremonies each day.

In population-dense urban areas, a wider variety of

schools flourished, and governments supported

schools with varying degrees of religious status as well

as use.

For instance, in Lowell, where Catholic immigrants

were replacing the factory workers drawn from the

New England countryside, the Public School

Committee agreed in 1836 to take over support and

management of two parochial schools. The Committee

examined and employed the teachers, and prescribed

the same books as for its other schools, but the

teachers were Catholic and the books were examined

to screen out content disparaging Catholicism. This

arrangement—which Horace Mann and others

praised—continued until 1852. Glenn, Common

School, supra, at 216–17.

In sum, common schools through the ratification of

the Fourteenth Amendment lacked religious status in

the modern sense and held themselves out as

nondenominational. But these schools were deeply

religious—faith “permeate[d] everything they do.” Id.

See Espinoza, 591 U.S. at 477 (cleaned up). New

England States funded common schools precisely

because those schools put religion at the heart of

education. After the Civil War, those common schools

12

would evolve into the public schools of today,

continuing religious practices like prayer and Bible

reading well into the 20th century.

New England States and local governments

similarly opened their coffers to support private

schools. Gabel, supra, at 186. Towns gave some

academies cash funding. Ibid. State legislatures gifted

land grants to others. Id. at 186, 190, 194. Until 1820,

Massachusetts made land grants in the interior parts

of Maine to support academies; in 1796, for instance,

four academies were “incorporated by the legislature

and endowed with handsome grants of the public

lands.” Elmer E. Brown, Secondary Education in the

United States: The Academy Period, 6 Sch. Rev. 225,

234 (1898) (citation omitted). While town-level gifts

were ad hoc, Massachusetts distributed public lands

to academies pursuant to neutral, generally applicable

criteria. Resolve of Feb. 27, 1797, ch. 44, supra. And

Maine continued this policy after breaking off from

Massachusetts in 1820, giving 332,800 acres of land

and $20,000 to private academies from statehood to

1851. Gabel, supra, at 190.

Yet again, however, governments did not exclude

private academies offering religious instruction from

this public munificence. Quite the opposite, these

private academies touted the depth of their religious

character. Churches directly controlled some of these

schools, like Cheshire Academy in Connecticut. Id. at

201. Other academies were not formally affiliated with

a particular denomination or faith. Across the board

though, private schools made faith the centerpiece of

their teachings even more than common schools. Id.

Some, like Phillips Academy, taught denominational

13

doctrines like Trinitarianism. Constitution of Phillips

Academy, supra, at 11. Besides the usual Bible

reading and prayers, private academies also featured

chapel services and compulsory Sabbath worship that

common schools would have left to church-affiliated

Sunday schools. Gabel, supra, at 186.

As with the local grammar schools, the academies

were left free to determine the extent to which the

instruction provided had a distinctively religious

character, or not. As a 19th century historian put it,

“[w]ith characteristic devotion to local self

government, Massachusetts proposed no further state

control of those schools which she thus liberally

endowed.” Elmer E. Brown, Secondary Education in

the United States: The Academic Period, 6 Sch. Rev.

357, 360 (1898). Trying to limit the teaching of religion

would have been unfathomable in an era when schools

universally blended education and faith.

B. Mid-Atlantic States Funded Religious

Teaching

In the mid-Atlantic States, denominational schools

flourished during the first decades of the American

Republic. Dutch Reformed, Presbyterians, Quakers,

Anglicans, Lutherans, and other groups started and

supported their own schools, filling a gap left by the

general lack of public provision of education. For

example, the colony of New Jersey was under

“concessions and agreements” that guaranteed liberty

of conscience. The Concessions and Agreements of the

Proprietors, Freeholders and Inhabitants of the

Province of West New Jersey in America, ch. 16 (1677);

The Concession and Agreement of the Lords

Proprietors of the Province of New Caesarea, or New

14

Jersey (1664). As a result, New Jersey—like New York

and Pennsylvania—became a haven for settlers from

various religious groups that were experiencing

difficulties or persecution in Europe.

“To most of these groups of religious devotees, the

school was as essential to the maintenance of their

denominational entity as was the church.” Paul

Monroe, Founding of the American Public School

System 91 (1971). These groups supported colonial

governments’ practice of leaving local churches in

charge of sponsoring and controlling schools, and this

practice continued in the new States.

Thus, for the first few decades after the Founding,

these

States

primarily

relied

on

private

denominational schools to educate children. These

schools were largely funded through tuition, but

States extended public funding to educate the poor,

sometimes by

paying

students’ tuition at

denominational

schools.

E.g.,

James

Pyle

Wickersham, A History of Education in Pennsylvania

273 (1870); Glenn, American Model, supra, at 138. So

the common thread continued: funding schools meant

funding religious instruction.

By the 1840s, the common-school movement, with

its generically Protestant vision of public education,

had attained dominance in the mid-Atlantic, and midAtlantic States turned to general taxation to support

these schools. Gabel, supra, at 348–49, 374, 380.

Whether these States were funding private

denominational schools or generically Protestant

public schools, however, the bottom line was the same.

Religion informed all aspects of education, and mid-

15

Atlantic States opened their purses with that

understanding.

New York’s experience is illustrative. In 1795, the

State appropriated $50,000 annually to towns to

support public education. Diane Ravitch, The Great

School Wars: A History of the New York City Public

Schools 7 (2000). Upstate towns established local

schools much like New England’s, ibid.; religious

instruction was commonplace. As of 1829, 216 New

York towns used the New Testament as a reader.

Gabel, supra, at 350. But in New York City, religious

heterogeneity prompted a different approach. Many

churches offered schools for the children of their

members. Ravitch, supra, at 6. Thus, the City

redirected its share of New York’s 1795 appropriation

to the City’s eleven existing schools—ten affiliated

with churches and one unaffiliated school for free

Blacks. Id. at 7. In other words: New York offered a

generally applicable grant, available to a mix of

schools. New York did not limit funding recipients to

secular schools; such an exclusion would have been

self-defeating given the ubiquity of religious

education.

In 1805, the forerunner of New York’s public-school

system emerged. Philanthropists privately founded

the Free School Society (later renamed the Public

School Society) to educate poor boys who did not

attend church schools. Id. at 8. Like New England’s

common

schools,

Society

schools

offered

“nonsectarian[]” education, “which was in reality

nondenominational Protestantism.” Id. at 9. The

Society aimed “to inculcate the sublime truths of

religion and morality contained in the Holy

16

Scriptures.” Philip Hamburger, Separation of Church

and State 220 (2002). Pupils thus followed a strict

curriculum, learning reading in eight stages

culminating in the Bible. Ravitch, supra, at 13. On

Tuesday afternoons, “distinguished ladies” instructed

the children in the catechisms of their respective

denominations. Jorgenson, supra, at 15. Society

schools also required daily Bible readings and

religious exercises. Ravitch, supra, at 18. A typical

recitation ran:

TEACHER: Children, who is good?

ANSWER: The Lord is good.

T. To whom should we be thankful?

A. Be thankful unto Him.

T. Whose name should we bless?

A. Bless his name.

Ibid.

All the while, New York State and City funded

these Society schools. In 1807, the State legislature

appropriated $4,000 for a building and $1,000

annually for teachers’ salaries. Jorgenson, supra, at

14. New York City donated the land for the Society’s

first schoolhouse. Ravitch, supra, at 11. In 1811, the

State gave $4,000 for a second building, and in 1813

the State set up a new school fund from which the

Society received an annual allotment. Jorgenson,

supra, at 15. By 1825, the Society had wielded its

political clout to edge other schools out and become the

sole beneficiary of public funding in New York City.

Fraser, supra, at 52–53.

17

No one had any doubt that by funding public

schools, the State was funding religious instruction.

New York communities fought bitterly, with Catholics

objecting that these schools insisted on the Protestant

King James Bible, Protestant hymns and prayers, and

“textbooks in which Catholics were condemned as

deceitful, bigoted, and intolerant.” Hamburger, supra,

at 220; Jay Alan Sekulow & Jeremy Tedesco, The

Story Behind Vidal v. Girard’s Executors: Joseph

Story, the Philadelphia Bible Riots, and Religious

Liberty, 32 Pepp. L. Rev. 605, 627 (2005). In 1840,

Catholic schools petitioned the City for a share of

public support. Fraser, supra, at 54. In response, the

Society offered to black out the worst anti-Catholic

references in its textbooks, but deemed the King

James Bible non-negotiable. Hamburger, supra, at

223.

The solution was not for the government to stop

funding religious instruction in schools. Instead, in

1842, New York City adopted State Secretary of State

John Spencer’s proposal devolving control to local

districts so “that every denomination may freely enjoy

its ‘religious profession’ in the education of its youth.”

Id. at 226–228; Fraser, supra, at 56. That proved a

Pyrrhic victory for Catholics, because New York State

then barred the teaching of “any religious sectarian

doctrine or tenet,” i.e., no to Catholicism, but yes to

nondenominational Protestantism. Jeffries & Ryan,

supra, at 301. The victory was also marred by violence.

The day of the crucial election, tensions boiled over

into violence with dueling Catholic and anti-Catholic

mobs fighting in the streets of New York. Ravitch,

supra, at 75. A mob destroyed the Bishop of New

York’s residence, and the militia was called out to

18

protect St. Patrick’s Cathedral. Espinoza, 591 U.S. at

504 (Alito, J., concurring).

The upshot: Protestant-style Bible reading

continued. Fraser, supra, at 56–57. When a few

schools interpreted the state law to bar “all religion

including the Bible and prayers,” the legislature set

them straight, “enjoin[ing] the Board of Education

from forbidding the Scriptures without note or

comment in any schools.” Gabel, supra, at 360–61.

Accordingly, throughout the 19th century, New York

continued funding public schools, and those public

schools continued offering instruction in generic

Protestantism. Fraser, supra, at 57. In the decades

after ratification of the Fourteenth Amendment, the

debate shifted to whether the State could exclude

certain denominational (Catholic) schools from public

funds, while funding nondenominational (Protestant)

schools. But it would have been inconceivable for

governments, when funding schools writ large, to

exclude all instruction with a religious character.

C. Southern States Funded Religious

Instruction

The antebellum South invested little in education.

The combination of a predominantly rural population

and strict racial divisions stood in the way. Fraser,

supra, at 24; see Glenn, American Model, supra, at 24–

25, 89. But the few episodes that exist comport with

trends elsewhere: Southern States aided religious

schools, sometimes as part of generally available

subsidies, without regard for the religious nature of

instruction. And Southern States did so despite other

qualms about state-supported religion. Many states,

for instance, prohibited governmental funding of the

19

clergy specifically. See Locke, 540 U.S. at 722–23 &

n.6. But opposition to funding the clergy did not

translate into opposition to funding religiously

affiliated schools, Espinoza, 591 U.S. at 480–481, or to

schools that offered a religious perspective.

For instance, in 1783, the Georgia legislature

authorized the governor to grant 1,000 acres of land to

any person authorized by a county for the erection of a

school. Those allocations went directly to churches.

Anglicans, Methodists, and Catholics all received

distributions. The church erected the school, then the

preacher served double duty as schoolmaster. Gabel,

supra, at 242. Unsurprisingly, “[d]aily prayers,

religious exercises and instruction were part of the

school curriculum; . . . and ‘Sabbath breaking’ was

listed among the immoralities in school regulations.”

Id. at 243.

Meanwhile, Virginia, starting in 1810, and

Delaware, starting in 1818, both funded Sunday

schools as part of larger programs to educate the poor.

Jorgenson, supra, at 13–14; see Gabel, supra, at 220.

Sunday schools received their pro rata share of a

larger appropriation based on the number of children

enrolled. Gabel, supra, at 394. Sunday schools back

then covered literacy and more secular basics than

Sunday schools today, but “religious and moral

instruction” remained the “ultimate purpose.”

Jorgenson, supra, at 13.

Immediately after the Civil War, public funding of

education grew. But a proposal that governments deny

funds to certain schools because of the specific

religious instruction they provided did not go over

well. In 1871, Texas made one effort to bar public

20

funding for private schools that taught “sectarian

doctrines.” Gabel, supra, at 650. Baylor University’s

President attacked those efforts as “the most absurd,

monstrous and blundering systems of Free Schools

ever adopted on this continent.” Carl H. Moneyhon,

Public Education and Texas Reconstruction Politics,

1871–1874, 92 Sw. Hist. Q. 393, 400 (1989). “Actual

revolt” ensued, with the “destruction of schoolhouses

and riots.” Gabel, supra, at 651. The legislature

relented, repealing the provision in 1873. Ibid.

Thus, in the South, where antebellum

governments generally steered clear of education, the

trend still held. When the government did get involved

in funding education, public dollars that went to

schools by definition went to religious education. And

there was no distinction between religious status and

religious use.

II. The Limited Federal Education Programs in

the Early Republic Reached Religious Use

As the one entity subject to the First Amendment

before

incorporation,

federal

practice

sheds

considerable light on the historical understanding of

the Religion Clauses. E.g., Marsh v. Chambers, 463

U.S. 783, 790–91 (1983). And, whether the federal

government provided general grants for education or

earmarked particular funds for particular projects, the

government routinely funded religious instruction.

That was often the point.

21

A. The Federal Government Funded

Missionaries to Teach Christianity to

Native Americans, Including in Oklahoma

From the Founding, the federal government was

heavily involved in efforts to educate Native

Americans. The United States worked so closely

together with missionaries to advance an explicitly

evangelizing mission that “Indians viewed Church and

State as one.” Keller, supra, at 8.

While “[t]he establishment of schools among the

Indians began with Protestant missionary groups, . . .

there was little growth until government aid was

provided.” Francis Paul Prucha, American Indian

Policy in the Formative Years: The Indian Trade and

Intercourse Acts, 1790–1834, at 220 (1970). In 1776,

the First Continental Congress adopted a resolution

declaring that “a friendly commerce between the

people of the United Colonies and the Indians, and the

propagation of the gospel, and the cultivation of the

civil arts among the latter, may produce many and

inestimable advantages to both.” Charles L. Glenn,

American Indian/First Nations Schooling: From the

Colonial Period to the Present 31 (2011). A Committee

on Indian Affairs was authorized to employ “a minister

of the gospel, to reside among the Delaware Indians,

and instruct them in the Christian religion.” Ibid.

After ratification of the Constitution, this

partnership continued. The first Secretary of War,

Henry Knox, urged that missionaries should be

appointed to live among Native Americans to achieve

“the salutary effect of attaching them to the interest of

the United States.” R. Pierce Beaver, Church, State,

and the American Indians 64 (1966). Knox and

22

President Washington then issued joint instructions to

dispatch said missionaries to tribes to “teach[] them

the great duties of religion and morality, and to

inculcate a friendship and attachment to the United

States.” George Washington & Henry Knox,

Instructions to the Commissioners for Treating with

the Southern Indians (Aug. 29, 1789), in 1 American

State Papers: Indian Affairs 66 (1832).

The Jefferson Administration, too, employed

missionaries to teach Native Americans. President

Jefferson “despite his famous metaphor of the ‘wall of

separation’ between church and state, did not . . .

hesitate to sign a treaty in 1803 with the Kaskas[k]ia

Indians of Illinois.” Glenn, American Indian, supra, at

51. That treaty obligated the United States to pay

$100 per year “towards the support of a priest of [the

Catholic] religion, who will engage to perform for the

said tribe the duties of his office and also to instruct as

many of their children as possible in the rudiments of

literature.” A Treaty Between the United States of

America and the Kaskaskia Tribe of Indians, 7 Stat.

78, 79 (1803). Jefferson also approved “modest

funding” for a Presbyterian mission school where

Cherokee “children were taught to read from the Bible

and catechism, to say Christian prayers daily, and to

sing Christian hymns.” Glenn, American Indian,

supra, at 52 (citation omitted).

The Monroe Administration expanded these efforts

through an 1819 congressional appropriation of

$10,000 for a general “civilization fund.” Id. at 53.

Those federal funds went almost exclusively to

denominational missions, with the “actual operation of

schools” left up to religious organizations. Id. at 53–

23

54. As a House committee report explained, the aim

was to “moralize” Native Americans in the hopes that

“the Bible will be their book, and they will grow up in

habits of morality and industry.” Beaver, supra, at 67–

68.

By 1840, missionary Isaac McCoy observed: “[The

Baptist schools] have been sustained almost wholly by

means obtained from the Government of the United

States.” Keller, supra, at 5. McCoy exaggerated only a

touch. From 1826 to 1842, $53,529 of the $73,197 the

Baptists spent on missionary schools came from the

federal government. Beaver, supra, at 102. And by

1842, federal funds helped to support 37 schools

established by missionary groups, with 85 teachers

and 1,283 pupils. K. Tsianina Lomawaima, They

Called It Prairie Light: The Story of Chilocco Indian

School 2 (1994). “Despite occasional unseemly

rivalries among denominations, their partnership

with the government in providing schooling to Indians

was almost unchallenged for the first hundred years of

American independence.” Glenn, American Indian,

supra, at 59.

Although most of the initial Federal government

funding for the schooling of Native Americans went to

Protestant groups, by 1832 three of the 51 schools

receiving such support were Catholic, and the Catholic

share continued to grow. “Between 1889 and 1897, of

the $4,437,339 appropriated by Congress for the

support of private Indian schools, Catholic institutions

received $3,094,247, or three-quarters. This

preponderance was in large part the result of decisions

by Protestant denominations to decline further

government subsidies, largely as a way of building a

24

case against support for Catholic Indian schools.”

Glenn, American Indian, supra, at 58. In 1893, there

were 39 Catholic boarding schools and thirteen day

schools for Indian students supported by the Federal

government. Id. at 70. Overall, religious institutions

or organizations operated more than half of all

federally-funded Indian boarding schools (210 of 417);

of these, 80 were Catholic. U.S. Dep’t of the Interior,

Federal

Indian

Boarding

School

Initiative:

Investigative Report, Vol. II 47 (July 2024),

https://perma.cc/D2GR-AHRL.

Oklahoma had 79 federally-funded Indian

boarding schools, more than any other state. U.S.

Dep’t of the Interior, List of Federal Indian Boarding

Schools 17–22 (April 2022), https://perma.cc/6V6HGZLW. Of these 79, about half were religious and 14

were Catholic—in both cases, more than any other

state. Ibid; Archdiocese of Oklahoma City, The

Oklahoma

Catholic

Native

School

Project,

https://perma.cc/6MEB-YWEC. These Catholic schools

included St. Gregory’s University (formerly Sacred

Heart Mission), St. Mary’s Academy (Sacred Heart

Mission), St. Patrick’s Indian School, and St.

Elizabeth’s Boarding School. Ibid. According to the

Department of the Interior, Sacred Heart Mission was

“a contract Catholic School * * * under the supervision

of the Benedictine Fathers.” Id. at 297. St. Patrick’s

Indian School “was staffed by priests and sisters that

held civil service positions with DOI.” Id. at 367. The

Department of Indian Affairs listed St. Elizabeth’s

Boarding School as a “Contract Mission Boarding

school” from 1917–1927. Id. at 338.

25

“State and church made common cause in the

civilizing and Christianizing of the Indians for two and

a half centuries.” Beaver, supra, at 85. Federal aid for

Catholic Indian schools waned in the 20th century, a

decline hastened by anti-Catholic no-aid provisions

rooted in the same contentious tradition as the Blaine

Amendments of the 1970s—laws that “hardly evidence

a tradition that should inform our understanding of

the Free Exercise Clause.” Espinoza, 591 U.S. at 482.

“[V]irtually no one seemed to be troubled by the

constitutional implications of the federal government’s

longstanding policy of trying to convert the Indians to

Christianity.” Donald L. Drakeman, Church, State,

and Original Intent 307 (2010).

B. The Freedman’s Bureau Partnered with

Religious Groups to Provide Religious

Instruction

In 1865, near the end of the Civil War, the federal

government established the Freedman’s Bureau to

assist newly-freed slaves and displaced Southerners.

During Reconstruction, the Freedmen’s Bureau

engaged in “the federal government’s pioneer, if

fleeting, venture into education at the state and local

levels.” Jacqueline Jones, Soldiers of Light and Love:

Northern Teachers and Georgia Blacks, 1865–1873, at

108 (1980); see Espinoza, 591 U.S. at 480–481. In

addition to many educational efforts initiated by

Blacks

themselves,

numerous

Protestant

organizations in the North worked to provide

instruction for formerly enslaved adults and children.

White teachers from the North saw themselves as

engaged in a missionary enterprise and were often

supported as such by Northern churches. Congress

26

directed the Bureau to educate the freedmen in

cooperation

with

these

“private

benevolent

associations,” and authorized the Bureau to expend

funds to facilitate that mission. Act of July 16, 1866,

§ 13, 14 Stat. 173, 176. That generally applicable grant

included religious groups, as well as a few secular

partners.

The Freedman’s Bureau’s principal partner was

the American Missionary Association, which received

over $1 million in federal funding—20% of the

Bureau’s total appropriation. Jones, supra, at 92. The

American Missionary Association was “explicitly

evangelical” and imbued its schools with a “religious

character.” Charles L. Glenn, African-American/AfroCanadian Schooling: From the Colonial Period to the

Present 56 (2011).

No surprise, then, that these schools were also

comprehensively religious. At one Mississippi school,

students began the day with an hour spent reading

Scripture, praying, and singing hymns. Joe M.

Richardson, Christian Reconstruction: The American

Missionary Association and Southern Blacks, 1861–

1890, at 44 (2009). At a Texas school, the day began

and ended with Bible reading and prayer. Id. Teachers

had to “furnish credentials of Christian standing.” Id.

at 166. Evangelical Christians were preferred, other

Protestants tolerated; Catholics and Unitarians need

not apply. Id. These teachers, vetted for their piety,

came armed with “missionary zeal” and believed that

“teaching the Negro to read and understand the Bible

was absolutely essential to his religious and moral

development.” Glenn, African-American, supra, at 57

(citation omitted). The goal was that the “Christ-like

27

mission of the teachers” would break down prejudice

until “there shall be no Blacks and no Whites, no

North and no South, but when all shall be one in

Christ Jesus.” Ibid.

Federal efforts to educate southern Blacks were

short-lived. Id. at 62. But this drawdown did not

reflect discomfort with funding religious education.

Federally-funded schools petered out because

Reconstruction collapsed. Southern opponents did not

simply object to teaching Blacks to read the Bible or to

engage with Christianity. Southern opponents

condemned the “Yankee schooma’am” for doing

“incalculable mischief” by daring to educate Blacks at

all. Id. at 58.

C. Congress Funded Religious Education in

Federal Jurisdictions

From the start, when Congress funded schools in

federal territories and enclaves, Congress funded

religious education. The Land Ordinance of 1785,

which laid out the Northwest Territory, set aside one

section of each township to support public schools. Act

of May 20, 1785 para. 11. That generally applicable

rule by definition included schools with religious

perspectives, not least because the expectation was

that all schools in the region would provide such

instruction: “Religion, morality, and knowledge, being

necessary to good government and the happiness of

mankind, schools and the means of education shall

forever be encouraged.” Northwest Ordinance art. 3

(July 13, 1787). “[T]his aspiration was probably

largely fulfilled” given “the religious character of the

curriculum and the common practice of employing the

28

minister as the schoolmaster.” McConnell, supra, at

2151.

In the District of Columbia, Congress supported

denominational

schools,

including

explicitly

Presbyterian schools, until at least 1848. Espinoza,

591 U.S. at 481; Gabel, supra, at 179. As in the states,

even public schools in D.C. taught religion. An 1813

schoolmaster’s report, the first surviving record of a

D.C. public school, describes how of the 91 pupils, “55

have learned to read in the Old and New Testaments,

* * * 26 are now learning to read Dr Watts’ Hymns

and * * * 20 can now read the Bible.” J. Ormond

Wilson, Eighty Years of the Public Schools of

Washington—1805 to 1885, 1 Recs. Colum. Hist. Soc’y

119, 127 (1896). Whether the other 36 students

learned anything is lost to history. More generally, the

Bible served as the “standard reader and speller” “for

a long time” in D.C. schools. Gabel, supra, at 179 n.75.

Once again, the federal government valued the

religious mission or use of schooling. The federal

government saw no legal impediment to financially

supporting either schools with a religious status or

schools that would put those funds to religious use by

providing education infused with a religious

perspective. That distinction simply would not have

occurred to earlier generations.

III. Restricting Generally Available Aid Based

on a School’s “Religious Use” Violates the

Free Exercise Clause

This Court has “repeatedly held that a State

violates the Free Exercise Clause when it excludes

religious observers from otherwise available public

benefits.” Carson v. Makin, 596 U.S. 767, 779 (2022).

29

See also Church of the Lukumi Babalu Aye, Inc. v. City

of Hialeah, 508 U.S. 520, 532 (1993); ; Locke, 540 U.S.

at 726 (Scalia, J., dissenting); accord S. Bay United

Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1614

(2020) (Kavanaugh, J., dissenting from denial of

application for injunctive relief). The Free Exercise

Clause thus condemns laws that discriminate against

schools because of their religious affiliation.

Disqualifying schools from a “generally available

benefit ‘solely because of their religious character’

* * * ‘effectively penalizes the free exercise’ of

religion.” Carson, 596 U.S. at 781 (quoting Trinity

Lutheran, 582 U.S. at 458). “A State need not subsidize

private education. But once a State decides to do so, it

cannot disqualify some private schools solely because

they are religious.” Espinoza, 591 U.S. at 487 .

The Free Exercise Clause equally condemns

generally available programs that discriminate

against schools because they provide an education

from a religious perspective. Pet.Br. 24–27. Religious

people do religious things. While Trinity Lutheran and

Espinoza “held that the Free Exercise Clause forbids

discrimination on the basis of religious status, * * *

those decisions never suggested that use-base

discrimination is any less offensive to the Free

Exercise Clause.” Carson, 596 U.S. at 786. The “formal

distinction” between exclusions based on “status” and

those based on “use” does not “affect the application of”

this Court’s free exercise jurisprudence. Carson, 596

U.S. at 782. See also Trinity Lutheran, 582 U.S. at 469

(Gorsuch, J., concurring in part) (the distinction

between “religious status and religious use” “blur[s]

when stared at too long”).

30

This is so because the Constitution protects “not

just the right to be a religious person” but “the right to

act on those beliefs outwardly and publicly.” Espinoza,

591 U.S. at 510 (Gorsuch, J., concurring). After all,

practicing one’s religion stands “at the very heart of

the First Amendment’s guarantee of religious liberty.”

Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S.

14, 19–20 (2020). It would be meaningless for the Free

Exercise Clause to prohibit the government from

discriminating against self-identified Catholics or

Pentecostals, but tolerate excluding those who attend

Mass or speak in tongues. Those principles apply

equally to funding programs. The “government may

not force people to choose between participation in a

public program and their right to free exercise of

religion.” Trinity Lutheran, 582 U.S. at 469 (Gorsuch,

J., concurring in part). The state may not deny

otherwise qualified religious schools access to funding

“on the basis of [their] anticipated religious use.”

Carson, 596 U.S. at 769. “[E]xclusion of religious

speech and motivations, of religious organization and

programs from equal participation in the ‘public

square’ and in public funding is not neutral in its

effects.” Charles L. Glenn, The Ambiguous Embrace:

Government and Faith-Based Schools and Social

Agencies 76 (2000). Such exclusions force a reversion

to secular conformity, as schools feel pressured to

abandon the very expressions of faith that made their

school environments distinctive. Ibid.

The history of government educational funding,

summarized in Parts I and II, shows just how

incomprehensible permitting discrimination on the

basis of religious use would be. Since the Founding,

the federal government and States have funded

31

education to varying degrees. They often did so

indiscriminately, either by offering aid to all public

schools or by showering private schools as a class with

support. The idea that governments could have

excluded schools from such funding because of their

religious perspective would have beggared belief.

Indeed, the idea that general grants to schools would

not have funded instruction based on religious

perspectives would have been unthinkable. Well

through the 19th century, virtually all schools—

whether public or private, formally affiliated with a

religion or not—aimed to foster faith. Local, state, and

federal governments in the early national period took

for granted the religious use of schooling, i.e., that the

mission of school was to instill a Biblical worldview.

In Horace Mann’s time, inculcating Christian

values was not a reason to disfavor a school; it was a

prime reason for governments to support schooling.

The historical record decisively refutes any argument

that public funding for religious use raises special

antiestablishment concerns and suggests that the

Establishment Clause at most protects against the

“coercion of religious orthodoxy and of financial

support by force of law and threat of penalty,” e.g.,

compelling mandatory attendance at an established

church or taxes to specifically fund churches.

Espinoza, 591 U.S at 490–491 (Thomas, J., concurring)

(citation omitted); accord Town of Greece v. Galloway,

572 U.S. 565, 608 (2014) (Thomas, J., concurring in

part and in the judgment). See also Pet.Br.47–52.

To early generations of Americans, “genuinely

secular public education was simply inconceivable.”

Jeffries & Ryan, supra, at 298 (internal quotation

32

marks omitted). Early generations saw that as a

feature, not a bug, in a world where secular education

was virtually nonexistent. That history belies the

existence of any “historic and substantial tradition,”

much less one amounting to a state interest “of the

highest order,” that might justify denying government

benefits that the Free Exercise Clause would

otherwise require. Espinoza, 591 U.S. at 481, 484

(cleaned up). Invoking such an interest today would

turn the history of the early Republic on its head.

***

The Oklahoma Statewide Virtual Charter School

Board’s decision to grant St. Isidore’s application is in

accord with our Nation’s long tradition of school

funding, including Oklahoma’s own history of

government-funded religious schools. It is also in

accord with this Court’s First Amendment

jurisprudence. Respondent’s reversal and the

decisions below cannot be squared with either. The

Oklahoma Supreme Court’s interpretation of the First

Amendment would have ruled out public support for

virtually

all

early

American schools.

The

Establishment Clause does not require and the Free

Exercise Clause forbids such religious discrimination.

33

CONCLUSION

The judgment of the Oklahoma Supreme Court

should be reversed.

Respectfully submitted.

ERIC N. KNIFFIN

Counsel of Record

ETHICS AND PUBLIC

POLICY CENTER

1730 M Street, N.W.

Suite 910

Washington, DC 20036

(202) 682-1200

ekniffin@eppc.org

Counsel for Amicus Curiae

MARCH 12, 2025