Abstract
Only rarely is it publicly known which Supreme Court Justice holds the decisive vote on a blockbuster issue because the other eight have already voted. In Oklahoma Statewide Charter School Board v. Drummond, however, eight Justices found themselves equally divided on a crucial question: whether the Free Exercise Clause guarantees religious charter schools a right to taxpayer funds. All eyes are now on Justice Amy Coney Barrett, who recused from Drummond and who will cast the deciding vote when the issue recurs. The stakes could not be higher: a ruling that requires states to fund schools that teach their preferred religious tenets as truth would profoundly disrupt American public education, not to mention longstanding norms of church-state separation.
So how will Justice Barrett approach this monumental question? We suggest that she is likely to apply an interpretive methodology that she recently called “original history” in an important concurring opinion. This approach, we argue, meaningfully captures the Court’s emergent interpretive practice and aligns with much of modern academic originalism.
We then apply Justice Barrett’s original history method to religious charter schools’ free exercise claim. We show that numerous government actors in the 19th century refused to fund religious schools on equal terms as their nonsectarian counterparts. Yet to our knowledge, no one—not even the religious schools themselves—suggested that such denials violated the right to free exercise. Under Justice Barrett’s method, this is compelling evidence against the asserted free exercise right. Indeed, Justice Gorsuch was closely attuned to this exact evidence during oral argument in Drummond. The upshot is significant. An evenhanded ruling against religious charter schools would preserve public education and bolster the conservative Court’s claim that history and tradition can offer a neutral adjudicatory method. But the converse is also true: if the Court ignores an uncontested historical record to rule conveniently for a movement conservative cause, its credibility will suffer a staggering blow.
Part way into an oral argument in which the Supreme Court looked ready to radically transform public education in America,[3] Justice Neil Gorsuch posed a striking question to a religious liberty attorney arguing in favor of a free exercise right to taxpayer-funded religious charter schools. “There are historic examples of funding being denied to religious schools and no free exercise claim followed,” Gorsuch observed. “I wanted to get your thoughts and reactions to that.”[4]
Gorsuch’s point was as forceful as it was straightforward. Throughout American history, as this Article will show, religious schools have made requests for taxpayer funds on equal terms with secular schools.[5] Often, those requests were denied.[6] Yet after every such denial, no one—not even the religious schools themselves—so much as intimated that the right to free exercise had been violated. Hence Gorsuch’s question. How could the Court rule that the denial of funds to a religious charter school in 2025 violates the Free Exercise Clause if, as the Court has repeatedly held, the content of our constitutional rights must be based in history and tradition?[7]
As it turns out, the Court didn’t rule in favor of the religious charter school’s free exercise claim in Drummond. But neither did it reject it. In a brief, per curiam order released less than a month after oral argument, the Court affirmed the judgment below by an equally divided vote.[8]
That outcome was made possible by Justice Amy Coney Barrett’s recusal from the case.[9] Although she offered no public explanation, the best evidence suggests that Barrett recused herself because her close friend, Notre Dame Law School Professor Nicole Stelle Garnett, was a close advisor to the religious charter school plaintiff in Drummond.[10] Yet as onlookers were quick to observe after the ruling, the same recusal issue would not exist in a future case brought by a different school.[11] That, in turn, tees up the juiciest of Supreme Court mysteries that will soon be revealed: a blockbuster issue in which eight of the nine Justices’ votes are already known, the issue is bound to recur, and thus the identity of the Justice who will cast the dispositive vote is known with mathematical precision.
It is rare for so much to turn on the unknown vote of just one Justice—and her vote alone. Indeed, it is not too much to say that the future of the American K–12 public education system hangs in the balance. Forty-five states currently operate charter school programs, with a total enrollment of almost four million students.[12] If the Court holds that the Free Exercise Clause requires these states to fund religious charter schools, billions of public dollars would be up for grabs.[13] California alone could be forced to spend hundreds of millions of dollars on the teaching of religious doctrine to its children.[14] And if a state wished to avoid that outcome, it would face a truly difficult decision: should it discontinue a popular form of school choice that is responsible for reducing the academic achievement gap for substantial numbers of low-income children and children of color?[15]
Several leading commentators believe the Court—and by implication, Justice Barrett—will ultimately rule in favor of religious charter schools.[16] But Justice Gorsuch’s astute line of historical questioning demonstrates that there is a non-zero chance that Justice Barrett’s originalist commitments may lead her to vote against the religious charter schools’ claim. That, at least, is the possibility we aim to explore in this Article. And in doing so, we hope to shed light not only on the particular history of religious school funding denials, but also the broader prospect that originalism might serve as a neutral constraint on raw judicial preferences.
To preview our findings, we suggest first that Justice Barrett’s likely approach to the religious charter school free exercise question is aptly captured in a framework she set forth in her concurring opinion in United States v. Rahimi, a framework she calls “original history.”[17] We focus on this framework for two reasons. The first is theoretical: Justice Barrett’s writing offers a useful account of how and why history ought to play different roles in different constitutional disputes. In particular, she draws a powerful distinction between the (in our view, very few) cases where history ought to be “generally dispositive” because it “elucidates how contemporaries understood the text” of the Constitution, and the (in our view, far more common) cases where history plays “the more complicated role of determining the scope of the pre-existing right that the people enshrined in our fundamental law,” i.e., “original contours history.”[18] As Justice Barrett astutely acknowledges, history of this latter, original contours variant “walks a fine line” such that “an interpreter must exercise care in considering” it.[19] Indeed, Barrett’s position is that where this history is inconclusive, other ahistorical modes of constitutional argument can be used to decide a case.[20] The original history framework has the added virtue of cohering with some important developments in the originalist literature.[21] Although we do not ourselves endorse modern academic originalism (or its many variants[22]), we do think it is significant when a Supreme Court Justice propounds a methodological framework that not only carefully describes the Court’s on-the-ground interpretive practice, but does so in a way that draws support from some leading academic work.
The second reason we choose to develop and apply Justice Barrett’s original history framework is irreducibly practical. Not only does Justice Barrett hold the decisive vote for the future of taxpayer-funded religious charter schools, but her vote has now become increasingly crucial in many of the high-profile cases that divide America. Indeed, in recent terms, Barrett was the most likely Republican appointee to vote with the liberal Justices, and she has broken ranks with the other Republican appointees in a number of major disputes.[23] Just as a generation of lawyers learned to tailor their constitutional arguments in watershed cases to the particular jurisprudential tendencies of Justice Anthony Kennedy,[24] a similar dynamic may now be emerging with Justice Barrett as the target. And if that is so, then it ought to matter immensely to practitioners, academics, and the public how she describes her approach to constitutional cases, both for the religious charter school issue and beyond. Put simply, if “original history” is how Justice Barrett analyzes hard questions of constitutional law, then we should expect to see a surge in original history in briefs and law journals moving forward.
Taking this observation to heart, the balance of the Article examines the original history of school funding requests by religious school organizations in the founding and antebellum eras. We present evidence that the original contours of the right to free exercise were not understood to encompass a right to equal public funding for schools like today’s religious charter schools. The Article offers several historical examples to support this claim, but for present introductory purposes we focus on one.
In 1805, New York chartered what was in many respects the first precursor to the modern-day charter school network. The state did so by granting a formal charter to an organization known as the Free School Society—a non-governmental entity that, much like modern charter school organizations, was dedicated to enhancing educational opportunity for low-income children.[25] Like modern charter schools, the Free School Society was granted public funds in exchange for providing a free education, and it eventually opened up several schools in New York City.[26] And like modern charter schools, the state gave the Free School Society considerable regulatory leeway in selecting curricular goals and pedagogical methods.[27] Indeed, the Society would eventually innovate with respect to the “best methods of instruction” in an effort to achieve the “greatest result” using the “small[est] means” possible—an approach quite like some achievement-oriented modern-day charter networks.[28]
Over the ensuing years, other nongovernmental, philanthropic school organizations began applying for, and receiving, state funds on similar terms, including the Hamilton Free School, the Orphan Asylum Society, the Society for the Economical School, the African Free School, and schools run by the Mechanics’ Society and the Female Association.[29] For a period, New York also provided funds to religiously affiliated schools.[30] Yet starting in 1825, lawmakers began “denying common school funds to any religious society.”[31] Thus, between 1825 and 1841, Baptist, Presbyterian, Catholic, and Jewish schools were all turned away when they requested funding on equal terms with nonsectarian, nongovernmental school organizations like the Free School Society.[32]
Anyone interested in today’s constitutional battle over religious charter schools ought to care what happened next. If the claimed right in Drummond—the right of religious charter schools to receive public funds on equal terms with secular charter schools—was understood to be within the contours of the then-existing right to free exercise, one would expect the religious schools that were denied funding in antebellum New York to have prevailed in their free exercise claims.[33] What happened instead is thus as striking as it is revealing: none of the religious schools even brought a free exercise lawsuit.[34] And similar stories unfolded around the country, from New Jersey to Indiana to California, in ways that cannot be explained away as anti-Catholic bias.[35] In sum, the very government conduct that today’s religious charter school supporters claim violates the Free Exercise Clause—the refusal to extend funding available to secular charter schools to religious charters on equal terms—occurred in analogous circumstances and in highly visible settings prior to the Fourteenth Amendment’s ratification. Yet no one we are aware of argued that the governmental practice was inconsistent with then-extant free exercise principles. In the context of Justice Barrett’s original history framework, this is forceful evidence that access to such funding was not within the contours of the “pre-existing right that the people enshrined in our fundamental law.”[36]
The Article unfolds in four parts. Part I briefly describes the Supreme Court’s recent interpretive emphasis on historical evidence, focusing on Justice Barrett’s original history framework. We explain our best sense of what this framework conveys, how it aligns with important developments in modern academic originalism, and why it is a useful approach to apply to present-day constitutional questions.
Part II then applies the original history approach to the free exercise issue in Drummond. We recover a largely overlooked history of requests by religious schools for public funds that bear striking similarities to the conditions facing religious charter schools today. And we show that even as government actors routinely denied funds to these religious schools on the same terms as their nonsectarian counterparts, no one—not even the religious schools themselves—argued that this differential treatment violated the right to free exercise.
Part III considers the contrary argument advanced by the supporters of religious charter schools in Drummond. It shows, perhaps surprisingly, that the logical structure of their argument is grounded in a mode of constitutional interpretation that is the antithesis of the history-focused, originalist-inclined approach used in recent Court decisions. Indeed, the core moves in the religious charter schools’ position map neatly onto the argument advanced by the dissenting Justices in Dobbs v. Jackson Women’s Health Organization: that a right ought to exist because the Constitution’s meaning, when interpreted at a broad level of generality, can evolve over “the long sweep of our history and from successive judicial precedents.”[37] For religious charter school proponents, the crux of their argument is that a trio of 21st century free exercise precedents and a convoluted set of 20th century state action rulings, broadly construed, should give rise to a new right for taxpayer funded religious charter schools despite ample evidence that such a right was not within the original contours of the Free Exercise Clause enshrined in our Constitution.[38]
Part IV considers some implications of our historical analysis. First, with respect to public education, we explain how the fate of religious charter schools’ free exercise claim in Drummond could disrupt public education not only by reshaping the balance between secular and religious schools, but also by upsetting the uneasy political coalition that supports charter schools and their equity-enhancing mission. A second takeaway concerns constitutional theory. We argue that Justice Barrett’s original history framework is laudable for its open recognition of the limits of historical evidence in many cases. Yet this honest admission is, perhaps counterintuitively, also a source of concern. By opening the door to other modes of constitutional argument when the original contours of a right are historically underdetermined, the possibility exists that a Justice applying the approach may do so in ways that align with their unstated, subjective preferences. In other words, even as original history may appropriately limit the relevance of history in cases where it is inconclusive, it may do so at the price of enhancing judicial discretion—and judicial discretion is susceptible to motivated reasoning.
Finally, we consider implications for the Supreme Court and its public legitimacy in this fractious moment. Put simply, whenever it arises, the follow-on case to Drummond will serve as a critical test of the Supreme Court at a time when many Americans worry that it has become unduly political. As Professors Richard Schragger, Micah Schwartzman, and Nelson Tebbe have forcefully argued, there are strong external reasons to suspect that a majority of the Justices will side with religious charter schools.[39] But as we hope to show, this external, political economy account confronts a substantial obstacle: formalist legal arguments grounded in the very forms of historical evidence that the Court has used to justify several recent high-profile rulings.[40] The battle over religious charter schools, in other words, may determine more than the fate of the crumbling church-state wall and more than the future of K–12 education. It could reveal the promise—or peril—of the Supreme Court’s oft-claimed assurance that history can serve as a constraint on raw judicial preferences.[41]
It is no secret that today’s Supreme Court is increasingly sympathetic to historical arguments in constitutional cases. From abortion to guns,[42] school prayer to government appropriations,[43] and trademark law to the Confrontation Clause,[44] the Court now routinely decides constitutional disputes by looking to evidence from our nation’s history and tradition.[45]
This pivot to history and tradition has come with a fair dose of criticism. Professor Reva Siegel, for example, has challenged the focus on history-and-tradition on the grounds that it perpetuates inequality and disguises the Court’s subjective value judgments.[46] Some leading academic originalists, such as Randy Barnett and Lawrence Solum, have questioned whether the Court’s recent practice is truly consistent with public meaning originalism, concluding that the case is stronger for some decisions than others.[47] Still others, such as Professor Marc DeGirolami, argue that the Court’s attention to history and tradition is something different—not an effort to identify the Constitution’s original meaning, but rather a jurisprudence of traditionalism in its own right.[48]
These normative and conceptual debates are important, but we do not weigh in on them here. Rather than attacking (or defending) the Court’s recent rulings, our aim in this Part is more descriptive and predictive. That is, we ask a more instrumental question: looking out at the body of recent constitutional decisions, what kinds of argument and evidence are likely to be most persuasive to the conservative Justices—and Justice Barrett in particular—in future cases such as the free exercise claim to religious charter schools? To answer that question, it seems to us most profitable to consider what the Justices themselves have said about their own interpretive practice. In this respect, we heed the sage analogy offered by Supreme Court advocate John Davis in a famous 1940 speech: why ask an angler how to catch a fish if you can ask the fish?[49] And all the better if that fish is an originalist Justice at the heart of the Court’s center of gravity.[50]
Accordingly, this Part examines the Court’s likely approach to the free exercise case for religious charter schools in the context of Justice Amy Coney Barrett’s “original history” framework. Section A describes this framework as it arises out of her separate writings in Rahimi and other cases, distilling it into a three-step approach for deciding constitutional questions.[51] Section B explains how original history is consistent with some key moves in modern academic originalism.
A. Justice Barrett & Original History
Justice Barrett’s emerging framework for evaluating historical evidence in constitutional cases is reflected in three recent rulings in which she wrote separate opinions describing her approach. The most important of these is United States v. Rahimi, so we begin there.[52]
The question in Rahimi was whether a federal law disarming persons subject to domestic violence restraining orders violated the Second Amendment right to keep and bear arms.[53] In its landmark 2022 ruling in New York State Rifle & Pistol Ass’n v. Bruen, the Court had announced a new test for deciding Second Amendment claims: to justify a modern-day gun restriction, the government must “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”[54] Rahimi had prevailed in his challenge to the federal domestic violence disarmament law in the Fifth Circuit because “before, during, and after our Nation’s founding,” there did not exist “even a single regulation with an analogous burden and justification.”[55] Yet in Rahimi, an eight-Justice majority upheld the domestic violence regulation because it was “consistent with the principles that underpin our regulatory tradition,” in particular a broad principle that “when an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”[56]
Justice Barrett wrote separately to explain how she could vote in favor of the government despite the lack of any historical law specifically disarming domestic violence offenders in the 18th or 19th century. She began with a word about the relevant time period for her historical inquiry. Under her account, historical evidence from the period “surrounding the ratification of the [Constitution’s] text” matters because it “illuminates the meaning” of that text.[57] By contrast, “[h]istory (or tradition) that long postdates ratification does not serve that function.”[58]
Referring to the evidence from the appropriate period as “original history”—the source of our naming convention for her overarching framework—Justice Barrett then argued that such history “plays two roles” in constitutional argument.[59] One role—call it “original meaning” history—“elucidates how contemporaries understood the text.”[60] This kind of history, Barrett reasoned, was likely to be dispositive in the (small) universe of cases where, as in District of Columbia v. Heller, determining the meaning of a specific constitutional phrase would directly resolve the question presented (i.e., was the right to “bear Arms” understood to include a right for self-defense purposes?).[61]
Barrett then identified a second role for original history. This kind of historical evidence “plays [a] more complicated role” because rather than revealing the Constitution’s actual original meaning, it helps to “determin[e] the scope of the pre-existing right that the people enshrined in our fundamental law.”[62] Justice Barrett called this second use of historical evidence “‘original contours history” because it is a way of “look[ing] at historical . . . regulations to identify the contours of [a] right.”[63] As Justice Barrett later explained in her book, Listening to the Law, the goal of this original contours inquiry is to ask whether a constitutional “provision memorialize[d] a right already known to law?”[64]
Justice Barrett then made some important observations about the limits of original contours history. Such history, she acknowledged in her Rahimi concurrence, “walks a fine line between original meaning (which controls) and expectations about how the text would apply (which do not).”[65] Although “early applications of a constitutional rule can help illuminate its original scope,” she noted, “an interpreter must exercise care in considering them” because individual old regulations “do not themselves have the status of constitutional law.”[66]
Barrett then shifted to explaining how original contours history led to her vote in the government’s favor in Rahimi. The government, she recognized, had not identified a precisely analogous “historical counterpart” to the modern-day statute disarming domestic violence offenders.[67] So historic regulations from the founding era did not themselves establish that the modern law under attack was consistent with the original contours of the Second Amendment right. But to Barrett, that was not the end of the case; a precise historic analog was not the only way to determine the contours of the right. Indeed, to Barrett, requiring such a direct analog would “force[] 21st-century regulations to follow late-18th-century policy choices, giving us a law trapped in amber”—and worse yet, “adopt[] a ‘use it or lose it’ view of legislative authority.”[68] So Barrett argued that other historic laws identified by the government (such as laws criminally punishing those who go armed in a manner that terrorizes others) were still relevant to determining the Second Amendment’s contours because those laws could give rise to “concrete principles that mark the borders of the right.”[69] Ultimately, Justice Barrett concluded that the Rahimi majority had identified in the historic laws just such a principle: “since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.”[70]
Stepping away from the particulars of Rahimi itself, Justice Barrett’s overarching original history framework suggests an approach in which historical evidence can be assessed in three distinct steps, where history takes on different probative value at each remove. At step one, the original meaning step, history is dispositive because if the historical evidence can reveal the original meaning of a constitutional provision in a way that directly resolves the case, that is the end of the matter.[71] These types of cases though, are quite rare given the gap that exists between most broadly framed constitutional rights provisions and the nuanced particulars of modern-day regulatory actions.[72] In Rahimi itself, for example, no party argued that any amount of inquiry into how ordinary 19th century users of English understood the phrase “keep and bear Arms” could answer whether the Second Amendment protects the right of a person subject to a domestic restraining order to possess a firearm.
Many cases will thus move on to Barrett’s second step, where history is used not to recover original meaning, but instead to identify the “original contours” of a pre-existing right. In some cases, this second step can be quite straightforward, for instance if a modern regulation is simply the “updated model of a historical counterpart,” which is to say the government can point to “a founding-era relative of the challenged regulation.”[73] Where a direct historical analog of this kind exists, three things could be true, any of which would shed clear light on the original contours of the right at issue. One possibility is that the analogous historical regulations were struck down by courts; where this is so, then the pre-existing right most likely protected the conduct at issue and the modern law should also be unconstitutional.[74] A second possibility is that the historic regulations may have been challenged in court based on the relevant constitutional right, only for those challenges to have been rejected. Still another possibility is that the historic regulations were commonplace and yet no one so much as thought to argue that they violated any then-existing constitutional right.[75] Either of these latter kinds of historical records would strongly suggest that the claimed right is not within the contours of the original constitutional provision, such that the modern-day governmental practice should be upheld.
In Rahimi, however, this kind of precise historical counterpart did not exist. And so, Justice Barrett used historical evidence in yet another manner—one that corresponds to a third step in her original history framework. At this third step, in the absence of a closely analogous body of historical regulations, other modes of argument can be considered. Thus, in Rahimi, Barrett found persuasive an argument that can be understood as one grounded in broader principles,[76] in particular the principle that government can disarm dangerous persons consistent with the Second Amendment.[77] That principle, to be sure, was itself one Barrett inferred from historical evidence—hence the relevance of history as source material for broader principles even at this third stage of the original history framework.[78]
But in other writing, Barrett has expressed a willingness at this third step to consider ahistorical modes of argument, too. Thus, in Samia v. United States, Barrett wrote separately to agree with the majority’s holding that the admission of a particular form of testimony did not violate the Confrontation Clause. But whereas the majority grounded its holding in history and tradition, Barrett found the historical evidence “beside the point” because it was too late in time and too mixed in substance.[79] “While history is often important and sometimes dispositive,” Barrett opined, “we should be discriminating in its use [lest] we risk undermining the force of historical arguments when they matter most.”[80] This is a striking position—a candid (and in our view, laudable) acknowledgment that history is sometimes inconclusive, and where that is so, courts must decide cases based on other forms of argument.
What other forms of argument might be admissible? In her concurring opinion in Vidal v. Elster, Justice Barrett gave one indication as to a kind of alternative argument that could matter: judicial precedent that evolves over time. In Vidal, a majority of the Court ruled that a modern-day provision of federal trademark law (known as the “names clause”) did not violate the First Amendment. It did so on the ground that there were similar laws at different points in American history that were similar to the names clause yet never invalidated, such that “history and tradition is sufficient to conclude that the names clause . . . is compatible with the First Amendment.”[81] To Barrett, however, the Court’s use of history in this way was mistaken because the older regulations identified by the majority were different enough that they failed to “establish a historical analogue for the names clause.”[82] The proper use of history in Vidal, in other words, was not at step two of her original history framework, but rather at step three. And there, Justice Barrett argued that the mixed historical record counseled in favor of looking for a legal standard elsewhere, namely one “grounded in both trademark law and First Amendment precedent.”[83]
Vidal is thus a useful encapsulation of Justice Barrett’s original history framework: if historical evidence cannot decide the case by revealing original meaning (step one), and it cannot inform the contours of a pre-existing right because historic regulations are insufficiently analogous (step two), then it is permissible to look elsewhere to decide the case at step three—including to evolving judicial precedent and broader regulatory principles.[84]
B. Original History & Modern Academic Originalism
Although still a work in progress, Justice Barrett’s original history framework is a compelling effort to grapple with difficult questions about how history ought to figure into modern-day constitutional disputes. Moreover, because the framework represents a description of the actual process by which a vitally important, sitting justice weighs historical evidence across a range of cases, it is also deeply instructive. And although we do not mean to endorse her approach (or originalism more broadly), we think it is safe to conclude that the framework is likely to take on growing significance as historical arguments continue to ascend in importance at the Court. In the present Section, we aim to make one additional observation: Justice Barrett’s original history framework also coheres with several major developments in modern academic originalism.
The original meaning vs. original expected applications distinction. Justice Barrett’s previous writings have already made clear that she is an original public meaning originalist.[85] So it is perhaps little surprise that her original history framework also reflects an important distinction between evidence about the original public meaning of a constitutional provision and evidence of how those alive at the time of ratification might have expected the provision to apply. Justice Barrett’s opinion in Rahimi expressly recognized these two very different kinds of historical arguments, and she agreed with Professor Keith Whittington’s view that only original meaning is controlling because “[c]ontemporary government actors might have been ‘wrong about the consequences of their own constitutional rule.’”[86] To Barrett (and modern original public meaning originalists generally), in other words, evidence that states enacted certain regulations prior to the Fourteenth Amendment’s ratification doesn’t matter of its own accord; it matters only to the extent that the historic laws reflect public understandings of the underlying right that was codified in the text.
The interpretation / construction distinction. The original contours history framework also coheres with one of the most important conceptual advances in modern academic originalism: the distinction between constitutional interpretation and construction. Professors Barnett, Solum, and Whittington are the leading expositors of this distinction, which Barnett has captured with the observation that “the text of the Constitution may say a lot, but it does not say everything one needs to know to resolve all possible cases.”[87] The act of assessing the meaning of what the Constitution does say is, roughly speaking, constitutional interpretation—and the literature on how to perform this step is too vast to recount.[88] Everything that is needed for judges to fill in the gap from the interpretive step in order to arrive at a conclusion for a case is, roughly speaking, constitutional construction.[89]
So described, it is clear that this academic distinction is also consistent with the original history framework. Step one of that framework, Justice Barrett’s original meaning step, corresponds to the act of constitutional interpretation because it treats history as dispositive to the extent it directly resolves a case by revealing how a constitutional provision was originally understood. Steps two and three—where history remains relevant, but in descending degrees of significance and in a way that is ultimately defeasible in light of other, non-historical arguments such as principled or precedent-based claims—are steps that occur within the construction zone. In this way, Justice Barrett’s framework further builds on the scaffolding of modern academic originalism.
The originalist standard vs. procedure distinction. In an important 2022 article, Professor Stephen Sachs drew a distinction that illuminates a great deal of conceptual confusion and debate over originalism.[90] In Sachs’s view, many of originalism’s most ardent defenders understand their position to be arguments about the “features that make correct legal statements correct and true constitutional claims true.”[91] Borrowing from a longstanding distinction in philosophy, Sachs described these arguments as ones that go to originalism as the proper “standard of rightness.”[92] By contrast, many of originalism’s most ardent critics complain that in practice, important historical facts “are unknown to us” and “lawyers and judges are bad at doing history,” such that originalism fails to offer a useful “step-by-step procedure for finding out what [the right] answers are.”[93] These kinds of complaints, Sachs observed, are arguments over a proper “decision procedure.”[94] But like ships passing in the night, the two types of argument may fail to engage with one another: As Sachs put it, “whatever the best account of legal truth may be, we shouldn’t demand that it also serve as the best at-home testing method.”[95]
The original history framework resonates with this important theoretical distinction, too. There is little doubt as to which side of the divide Justice Barrett’s account falls on: by describing when and how history might matter in different kinds of constitutional cases with different sorts of historical records, her framework offers an intervention in response to critics who assail originalism due to the “difficulties of doing legal history or the frequent mistakes of prominent judges.”[96] Whether it is a normatively attractive intervention is of course up for grabs,[97] but the key point is that the framework is consciously focused on the originalist procedure side of the debate, thus attending to an important distinction in modern academic originalism. Indeed, insofar as Justice Barrett’s framework explicitly imagines different roles for history to play depending on the type and strength of evidence at issue, her approach also aligns conceptually with important recent work from Professor Jack Balkin on the multifaceted uses of history in constitutional argument.[98] If one is attracted to naming conventions, one could reasonably situate her approach within the originalist interpretive family as “original history originalism.”
In summary, Justice Barrett’s “original history” approach to constitutional cases is insightful and consistent with key strands in modern constitutional theory. And given her prominent place at the Court, it is practically significant, too. Thus, regardless of whether one agrees with the framework or the underlying tenets of originalism, the ways in which she uses historical evidence to decide modern-day cases is worthy of attention. This is especially so for lawyers who are invested in the litigation over individual constitutional cases—cases such as the looming dispute over the Free Exercise Clause and the right to religious charter schools.
II. Original History & Religious School Funding Requests
This Part explores how original history informs the free exercise right to religious charter schools asserted in Drummond. It unfolds in four sections. An initial section presents a brief overview of the development of schools in early-to-mid 19th century America, an effort that historians of education have called the “common school movement.”[99] This background provides the historical context in which antebellum disputes arose over religious school funding requests. The second section provides a pair of in-depth studies of high-profile disputes over public funding for religious schools. In New York City and in New Jersey, religious schools of many denominations were denied access to public funds on equal terms with other schools. In both episodes, we have found no evidence that disappointed religious school organizations believed the denials to be in violation of their right to free exercise. The second section then shifts from depth to breadth, supplementing the individual case studies with evidence of other government denials of public funding to religious schools, none of which provoked free exercise litigation. A third section considers how this evidence would count under the original history framework; a final section considers objections.
The role of an educated population has always been seen as central to the fate of American democracy. As Benjamin Rush explained in his famous essay “Thoughts Upon the Mode of Education Proper in a Republic,” “[t]he business of education has acquired a new complexion by the independence of our country. The form of government we have assumed has created a new class of duties on every American.”[100]
Despite the flurry of interest and attention to the issue of education in America, none of this concern was reflected in the Constitution itself. Neither the word education nor schools appears in the Constitution. Likewise, early Congresses took a relatively hands-off approach. Rather than establish a system of schools directly, Congress sought to facilitate the education of Americans by subsidizing the costs necessary to do so. For instance, the Land Ordinance of 1785 provided that one-square mile of each thirty-six square mile township grid should be set aside as a donation to facilitate the establishment of schools.[101]
State legislatures in the antebellum period approached the policy question of how to provide schooling to their citizens in much the same way Congress did: by subsidizing the costs associated with schooling rather than by establishing schools directly.[102] New York, for example, used money from the sale of land, accrued interest, and, eventually, a property tax to help support education prior to the Civil War. Indiana used a combination of money raised through fines, bank taxes, and the sale of the state’s salt lands to capitalize its school fund.[103] And in the West, California’s first constitution provided for the creation of a centralized state school fund that combined moneys derived from land sale revenue, criminal fines, escheated property, and a statewide property tax.[104]
While all states by the mid-19th century recognized the value of making state funds available to facilitate education, how states went about converting those funds into educational opportunity varied considerably. What states shared, however, was a basic presumption that the focus of legislative efforts should be aimed at empowering local communities to raise additional funds and not at dictating the content or form of the schooling itself. For instance, in 1795 New York appropriated $50,000 over a five-year period for an “act for the encouragement of schools.”[105] The money provided in the act was to be divided up proportionally by county based on population. In order to qualify to receive funding, the county had to match half of the state allocation with local funds.[106] Relying on local initiative to establish schools, however, did not always have its intended effect. When Pennsylvania established its permanent school fund in 1834, it left it to local communities to determine at the polls whether they wanted to pass a local tax to support public schools and thereby become eligible to receive a portion of the state funds. In the first year after the fund’s enactment, fewer than half the districts in the state decided to participate.[107]
Once funds were made available to support schools, local officials had broad discretion in determining how those funds were distributed among available schooling options—including those run by religious orders, charities, and private citizens. This meant local officials also had discretion in determining much of the content of the schooling students would receive, including the amount and character of moral or religious instruction and the specific texts used.[108] In the early 19th century, however, a concern for standardizing or improving the quality of schooling was secondary to the more basic task of making it available to larger numbers of children.
This hands-off approach to such an important issue might seem strange to modern sensibilities, but it reflected philosophical and practical realities of life in antebellum America. Many communities had traditions of local schooling that extended into the colonial era and predated state support. Schooling in this time could take various forms: wealthier families often sent their children to “private” academies or employed tutors; families of more modest means might band together to hire a tutor to provide instruction in someone’s home; churches often included buildings or rooms that could be used to provide literacy and religious instruction to families of congregants and other children in the community.[109] Especially in urban areas, schooling was often the purview of not just churches and academies but also civic benevolent associations that, in keeping with a long British tradition, operated schools for orphans and the children of poor families.[110]
Thus, when state legislators began taking an interest in expanding educational opportunity, they naturally viewed these existing schools as providing an important part of the infrastructure needed to do so. This was in no small part because, as scholars have noted, the distinction between public and private in the antebellum era was ambiguous.[111] An institution was considered public if it served a public function. Thus, a private school or teacher could be considered “public” even when it required students to pay tuition because the school was open on equal terms to anyone who could pay and the education it provided contributed to the common good.[112]
Equally important was the pragmatic consideration that state and local funds only covered a fraction of the total cost of schooling.[113] State funding could thus shape the availability of schooling, but common schools were still very much reliant on local prerogative and the private support of individual families who paid tuition.[114] Indeed, as described above, when voters in Pennsylvania districts voted against participation in the state permanent fund, many did so not because they were hostile toward educating their children or the establishment of schools, but because they were already doing so on a level that they were content with and did not want to invite state interference by accepting public money.[115]
The messy picture of schooling that emerges from this brief account provides critical context for the case studies that follow. Over time, the primary issues evolved from securing public funding for education in general to inquiring about the specific character of the schooling offered and its collective viability as a system of public schooling. The ensuing questions about the government’s relationship to religious instruction—and whether certain organizations such as churches or private academies should be eligible to receive public funds—reflected local and state officials’ continued engagement in an ongoing policy experiment and debate that Americans were having community by community. As Michael Katz, the preeminent historian of early American schooling, has observed, “[t]he early institutional history of public education is not the story of an inexorable march toward bureaucracy. Rather, it is a more complex and more interesting tale of competition among alternatives, each passionately believed to be singularly appropriate to America’s polity and social structure.”[116] Critically, as we will see, Americans broadly understood the range of acceptable “alternatives” to include legal regimes in which religious schools would be denied access to public funds on equal terms with their nonsectarian counterparts.
B. Government Denials of Religious School Funding Requests
Many prominent historical episodes involved religious schools requesting public funds on the same terms as other schools. These episodes are important because they gave rise to obvious occasions for religious actors to assert their constitutional rights—if they believed such rights to exist.[117] Yet as we show in two of the most notable examples from New York City and New Jersey, no such understanding of the right to free exercise was asserted. An ensuing section suggests that the New York and New Jersey examples were far from isolated.
The history of the New York City school system has received more scholarly attention than nearly any other, but there is little disagreement over the basic story.[118] At the turn of the 19th century, schools in New York City included the typical American menagerie: private tutors, academies, church schools, common pay schools, and charity schools.[119] Thus, when the New York state legislature in 1795 appropriated money and empowered local officials to disperse it to either charity schools or other schools where the common branches of knowledge were taught, local officials in New York City had quite a few options to choose from. The city’s numerous pay-school teachers lobbied to receive the lion’s share of the funds, as they educated the lion’s share of students in the city at the time. But city officials opted instead to give the money to a small number of charity schools under the widely accepted belief that urban poverty and troublesome youth were the greatest issues of public concern. [120]
The city’s concern for educating the urban poor continued in the years to come, most notably with the founding of the Free School Society in 1805. The Society was started by philanthropists who were increasingly worried about the number of poor children not being served by the city’s existing church-run charity schools and unable to attend the city’s pay schools. In order to fill this particular niche, the Free School Society petitioned the legislature for formal incorporation as “The Society for establishing a Free School in the City of New York, for the education of such poor children as do not belong to, or are not provided for by, any religious society.”[121]
Over the next two decades, the Free School Society would steadily expand its operation from a single school educating tens of children to more than ten schools educating thousands of the city’s children.[122] Aiding in that expansion was a steadily increasing share of the city’s local and state funds as well as several special grants from the legislature. Most notably, in 1817, the Free School Society received permission to use any surplus funds not just to pay teacher salaries, the normally required use of state school funds, but to help purchase and erect school buildings.[123] Given the wide geographic space the Society was trying to serve, this financial flexibility gave the Society a considerable advantage over other charity schools. Not surprisingly, the Bethel Baptist Church, which had founded its own religious free school open to all poor children in 1820, then applied for and received the same privileges from the legislature in 1822—a grant that quickly allowed it to open two additional schools.[124]
The competition posed by the Bethel Church schools led the Free School Society to petition the legislature to repeal the Bethel Church’s grant on the ground that the Society, with its efficient model and nonsectarian approach, was in a better position to serve the city’s poor children. Furthermore, the Society argued, dividing the state’s limited funding across multiple providers would only undermine the strength of the nascent educational system.[125] The Free School Society received support for its petition from the mayor and the local officials—the Common Council—who were empowered to disburse local funds among eligible schools. These officials argued that extending privileges to Bethel Church invited a “spirit of rivalry . . . between different [religious] sects.”[126]
A statewide legislative committee considered the question and recommended that the state should stop funding charity schools controlled by religious bodies. In a nod to local control, though, the state legislature decided that the city’s Common Council should make the ultimate determination about how public funds should be allocated to schools in the city.[127] And in 1825, the Common Council decided by unanimous vote that funds would be provided only to schools run by the Free School Society and other nonsectarian groups.[128] Religious schools that previously received funds—including the Bethel Church schools but also schools run by Catholic, German Lutheran, Presbyterian, Episcopal, and Reformed Dutch churches—were no longer eligible for funding.[129]
Despite this seismic shift in the city’s policy and the financial threat it posed to these religious schools, however, none of them filed a lawsuit challenging the denial of their funding. As an 1869 history of the city’s schools blithely noted, “[n]o further agitation of the question of the participation of religious denominational schools in the distribution of the School Fund occurred for about ten years.”[130]
These historical events would seem to provide as clear a test of the original contours of the Free Exercise Clause as contemporary inquisitors of the case for religious charter schools could hope for. Not only did New York officials empower a private corporation to receive public money to fulfill the civic purpose of providing a public education to the city’s poor—a function virtually indistinguishable from that performed by modern-day charter schools[131]—but lawmakers simultaneously denied similar funds to multiple religious school organizations. Each of these denials involved the kind of differential treatment that would have triggered lawsuits, or at least some degree of public complaint, over the infringement of religious schools’ Free Exercise Clause rights if those rights were thought to exist. Yet the historical record is barren of such evidence.[132]
New York City’s denial of public funds to religious schools in 1825 is, however, only the first chapter of the relevant historical record. A far more contentious and high-profile episode took place in the 1840s, as New York City’s growing population of Catholics agitated for their fair share of public funds to support Catholic schools. The story begins in 1840, when, sensing sympathy for their cause from Governor William Henry Seward, the city’s Catholic schools, as well as schools run by two Jewish congregations and a Scotch Presbyterian Church, sought access to their share of the city’s public school funding. Following the rule first set in 1825, however, the city denied these requests.[133] Catholic leadership then petitioned the state legislature to intervene in support of providing funds to religious schools. The matter was hotly debated—as were the merits of the “nonsectarian” approach to moral and religious instruction employed by the Free School Society (which had since changed its formal name to the Public School Society, but remained a private philanthropic entity chartered by the state).[134] Though few at the time doubted that religion had a rightful place in public schools, Catholics reasonably objected that nonsectarianism was often code for a generic Protestantism that was hostile to Catholic teaching.[135]
After more than a year of debate, the state legislature’s response was unequivocal. It passed a law reaffirming the city’s practice of preventing public money from going to schools where “any religious sectarian doctrine or tenet shall be taught, inculcated, or practiced.”[136] Meanwhile, the nonsectarian schools operated by the privately incorporated Public School Society continued to receive taxpayer funds. Through it all, however, no religious school organization we are aware of advanced any argument that this denial of access to equal funding violated the right to free exercise.
Another state with a history of religious school requests for public funds is New Jersey. The state’s early involvement in public schooling followed a typical path. In 1817, the state legislature set up a permanent school fund with an allocation of $15,000.[137] In 1829, the state enacted a process for creating school districts that would be empowered to raise local funds and elect trustees who would determine the length of the school term, establish schools, and conduct a census of the number of children in the district.[138]
As in so many states at the time, New Jersey was working to create a single, common system of schools out of an array of educational institutions that had already grown up organically over decades of local effort. A contemporaneous report from the school committee in Morris County conveyed that there were already some eighty-two schools serving roughly 2,800 enrolled school children—a school going rate of about seventy percent.[139]
In 1831, the state enacted a law allowing local school trustees to set up new schools while also formally incorporating existing schools into their districts.[140] This provision was maintained and elaborated upon in an 1838 law that is of surpassing importance for present purposes because it explicitly directed local officials to engage with the matter of distributing public funds to the state’s many existing religious schools. Section 12 of the 1838 law is worth quoting at length:
Where the patrons or proprietors of any school already organized and established under the care of any religious society or denomination of christians whose church discipline provides for the establishment of schools and the appointment of trustees, are unwilling to relinquish such school, and become subject to all the provisions of this act; it shall be the duty of the trustees of said school to transmit to the school committee of their respective townships, a certificate of their organization . . . whereupon every such school shall be entitled to receive its just and rateable proportion of the money assigned to said township out of the income of the school fund, and of such additional sum as may be raised or appropriated by said township, for the support of public schools[.][141]
Section 12’s core function was to require local townships to pay a pro rata portion of their school funds to certain religious schools if those schools elected to remain independent from the township school system. The provision, however, spawned considerable debate after many officials chose to deny requests for public funds that were made by different religious school organizations.[142] Two sets of episodes are worth highlighting, both of which show the frequency with which New Jersey officials refused to provide funds to certain religious schools as well as the widespread absence of any belief that these denials violated rights of free exercise.
The first debate arose out of a common view among New Jersey school officials that the only religious denomination permitted to receive school funding under Section 12 was the Quaker Society of Friends. State Superintendent of Schools T.F. King espoused this position in 1847, when he used his very first annual report to raise “objections as have been made by the different town superintendents in their reports.”[143] Among the specific objections he conveyed was the issue of the “uncertain wording” of Section 12.[144] As King explained:
I have always entertained the opinion that the said section had reference, exclusively, to the schools of Friends, whose “church discipline” alone of all the religious denominations, “provides for the establishment of schools and appointment of trustees;” others, however, have given it a different interpretation, which has given rise to difficulties and heart burnings not easily allayed.[145]
King’s concern over Section 12’s uncertain meaning was far from academic. Contemporaneous reports from township officials indicate that local schools implemented Section 12 precisely as King had understood it—which is to say, they denied public funding requests from all religious school entities other than the Society of Friends. Wall Township Superintendent R. Laird’s annual report is one example. “We also have a parochial school at Squan village, under the supervision of the Presbyterian denomination of [c]hristians,” Laird wrote.[146] “The parents have petitioned me for their portion of public funds,” Laird recounted, but “I have declined paying them any portion, not feeling myself justifiable according to [Section 12].”[147]
Princeton Township Superintendent O.H. Bartine reported a similar experience. Bartine indicated that his predecessor had originally been “in the habit of distributing the public money among [all] church schools proportionably with the public schools[.]”[148] Because they believed they stood to be the beneficiaries of locally raised funds, “[t]he friends and patrons of several parochial schools united in voting [in favor of] a tax at the town meeting[.]”[149] Bartine thus found himself in the difficult position of having to inform the voters of the township that they, and his predecessor, were mistaken in their interpretation of Section 12. Bartine explained, “[t]he construction given to the 12th section of the school law, by the . . . State Superintendent, restrict[s] the provisions of that section to the society of Friends[.]”[150]
If the Quaker-only interpretation of Section 12 strikes a present-day reader as discriminatory and deeply unfair, the reader is not alone. School officials across the state raised the same objection. Wall Township Superintendent Laird thus argued that it would be “just and right” for non-Quaker religious schools to “draw their school funds” on equal terms.[151] Even King, the State Superintendent himself, argued that the Quaker-only law was morally unjust. “[A]s a principle,” King wrote in his 1847 report, “it is wrong that any preference should be given to the members of one society over another.”[152] Certainly the non-Quaker religious school organizations agreed. As Princeton Township superintendent Bartine noted wryly in his report, “[t]he [Quaker-only] construction given to the 12th section of the school law . . . seems not to be acquiesced in by the friends of [the non-Quaker] parochial schools.”[153]
The most significant aspect of each of these criticisms of Section 12, however, is what followed from them: arguments that, as a matter of policy, the New Jersey legislature should amend the law to clarify which religious schools could and could not receive public funds. Princeton Superintendent Bartine thus expressed his hope “that the legislature will . . . declare definitely what is the meaning of the said 12th section” so as to “relieve town superintendents from this source of [difficulty].”[154] State Superintendent King was even more explicit. “It is . . . urgently requested that the legislature would either repeal [Section 12] entirely, or if it is intended, as supposed by this department, to apply solely to the members of [the Quaker] sect, let it be worded that there can be no doubt[.]”[155] Either of those options would have cemented the state’s existing practice of denying funds to at least some religious schools: the repeal option would have deprived all such schools of public funds, whereas rewording the law would have continued the Quaker-only approach. Alternatively, King noted that the legislature could amend Section 12 “as to apply alike to the schools of all denominations,”[156] thus making funding available to all religious school organizations.
Notice, though, what is crucially missing from each of these calls for legislative clarification: any sense that the then-understood right to free exercise of religion compelled the state to provide equal funding to all religious schools. Indeed, the very concept of a free exercise right for religious organizations to equal school funding would have rendered the repeal and clarification responses to Section 12 unconstitutional and thus off the table. Yet Bartine and King—both personally attracted to the concept of equal funding for religious schools—explicitly argued that repeal and clarification were within the bounds of permissible policy.
King’s sense that the legislature would be permitted to repeal Section 12 or clarify its Quaker-only application is especially probative because he was the rare official to reference the right to free exercise in his public comments. “We are, as a community, a religious people,” King wrote, and “[t]he constitution of our country gives freedom to all religious worship—the constitution of our state guarantees it[.]”[157] But King viewed these basic truths as policy rationales for expanding Section 12 to other religious organizations—not as legal grounds for striking down the law. “Let the state foster and encourage, by all proper means, the reception and diffusion of the gospel,” King urged. But if lawmakers deemed it wiser not to do that, King was also clear that it would be better for the legislature to amend the law such that “there can be no doubt” that Section 12 is meant to “apply solely to the members of that [Quaker] sect[.]”[158] Thus, just as in New York City, numerous religious schools whose requests for equal public funding were denied under discriminatory conditions responded with policy arguments—not in the register of constitutional rights. Any claim for equal funding was not within the original contours of the free exercise right as then understood.
Section 12 of New Jersey’s antebellum school law provoked a second form of selective funding denials to certain religious school organizations: those that were established after Section 12’s enactment. Here, too, however, the adversely affected religious entities failed to raise, let alone prevail on, a free exercise right to the contrary.
To understand this set of episodes, one must return to Section 12’s text. Section 12 provided that (at least a Quaker) religious school would be eligible to receive its fair share of state and local funding, but only if it was “already organized and established” as of the law’s passage.[159] It is unclear why the speed with which a church set up a school should have a bearing on a denomination’s right to receive public money for instruction. But this much is clear: those denominations that were later to settle in New Jersey or that did not have the means or interest to set up a school prior to 1838 were denied funding under Section 12’s plain terms.
The problem reached a boiling point in 1864, when King’s successor as State Superintendent, C.M. Harrison, raised it in his annual report. “[T]his year, for the first time,” Harrison lamented, “demands have been made by the trustees of several religious schools upon town superintendents for a portion of the school money. It is probably true in a few instances that these schools were organized, and in actual operation prior to [Section 12’s enactment], yet the proof of their organization is hardly as conclusive as it should be to warrant me in rendering a decision favorable to the parties who have appealed.”[160] Harrison continued, “[i]n all these cases, I have advised the parties to let the cases go into the courts for adjudication [of their eligibility for funding under Section 12].”[161]
Notably, like King before him, Harrison’s comments indicate that for whatever clarity may have been lacking in Section 12, he did not consider its basic approach unconstitutional or even unwise. Indeed, he explicitly advised the religious school organizations to take their funding requests to the courts, not because the law was constitutionally defective but because elements of its application (such as when the schools were actually organized) required the finding of specific facts that judges might be better able to ascertain. And yet, despite specific encouragement to take these matters to court and despite being part of state law for nearly two decades, we have not found a single free exercise challenge to Section 12’s denial of public funds to non-Quaker and post-enactment religious schools. Those discriminatory denials instead continued until 1866, when the law was finally repealed by the New Jersey legislature.
This lengthy run without legal challenge is especially remarkable when one recalls how important tuition was for the operation of all schools during this period.[162] These issues became more acute as local communities faced new legislative requirements to match state funding for local schools. Indeed, histories of church schools in this period specifically cite untenable finances and the perception of double taxation for their members as reasons why many such schools did not survive.[163] Faced with increasing local taxes and the prospect of paying a higher tuition because a local church school was shut out from its share of public funds, it is hard to fathom that the church school proprietors or the families they served would not raise these issues in court if they believed there existed even a colorable right to equal public funds under their then-extant right to free exercise.
The case studies above illustrate in detail how the decisions of antebellum state legislatures and local officials frequently resulted in public funds being directed into schools operated by private corporations and at least some religious societies. But when other religious societies requested funds on equal terms, they were denied. These decisions were highly controversial, generated a great deal of public attention, and sparked heated policy debates. But in no case did the matters at issue lead to constitutional arguments or litigation grounded in the right to free exercise.
It is important that our detailed focus on New York City and New Jersey not distract from the fact that they are but two of many examples of similar episodes in the historical record. While we do not have the space to describe them all, we briefly mention several additional examples to underscore the variety and geographic scope of this common antebellum practice.[164]
California is a good place to start. In 1853, the state amended its school law to allow local trustees to determine the allocation of state and local funds. Considering the local capacity and overall health of the city’s common schools, San Francisco officials decided to recognize the “ward schools” run by the local Catholic church as eligible to receive public funds. The decision resulted in a substantial sum—nearly forty thousand dollars—from the Common School Fund being directed to support the Catholic run schools.[165] Two years later, however, the state changed course, amending the law so that Catholic schools were no longer eligible to receive money from the Common School Fund.[166]
This example from California is instructive because, as historian of education and school finance Matthew Kelly has argued, the development of schools in California followed a unique trajectory that was not simply a reproduction of the existing models in New England and elsewhere.[167] The state’s two-year experiment with publicly funding religious schools—and its decision to discontinue that practice—thus offers another occasion in which disappointed religious organizations and their adherents could have brought suit. Yet we have found no record from this period in California of a lawsuit or public contestation sounding in the right to free exercise.
Pennsylvania provides another illustration. As discussed above, when Pennsylvania legislators set about developing the state’s public school system, the law they passed in 1834 provided a choice to local districts about whether to join the system and become eligible to receive funds.[168] The effort to entice more districts to join the local school system saw legislators engage in explicit efforts for years to court those voters who were loyal and committed supporters of their religious schools. In 1836, 1838, and again in 1847, Pennsylvania legislators explicitly included language authorizing local officials to use their discretion in choosing whether to incorporate private, religious schools into the public school system. Section 21 of the 1847 law, for instance, provided that “[w]hen a free school of the common grade in any district shall be maintained under the care and direction of any religious society, it shall be lawful for the directors of such district to cause to be paid . . . for the support of such school, any portion of the school funds of the district, which they may deem just and reasonable.”[169] Given the religious diversity of the commonwealth, it is notable that the law did not require local officials to recognize all religious schools but instead made it a matter of administrative discretion.
As in New Jersey, laws drafted in this way opened the door for local officials to deny public funding to some religious schools while granting it to others. Yet, as was true in New Jersey, we can find no record that such denials led to arguments grounded in the right to free exercise. This is true even when the state opted in 1854 to exclude religious schools from public funding altogether.[170] Given the precarious financial situation of religious schools in general, the blanket exclusion of such schools from public funds would seem to have been a decisive moment at which free exercise claims for equal funding would have arisen. That they did not arise is further evidence of the original contours of the right to free exercise.
Indiana offers another example of the same dynamic, as state efforts to centralize control over schools clashed with a longer history of supporting local religious schools. In 1851, Indiana was one of several Midwestern states—including Wisconsin, Ohio, and Minnesota—to pass a constitutional amendment stating that “[n]o money shall be drawn from the treasury for the benefit of any religious or theological institution.”[171] While laws like these are often understood to reflect Nativism and anti-Catholic sentiments, that narrative is not obviously suited to Indiana, which had few recent immigrants and an even smaller Catholic population at the time.[172]
Despite this prohibition on state money being directed to religious schools, the state legislature, in 1855, passed a law stating that “[i]t shall be lawful for any such city or town to recognize any school, seminary or other institution of learning . . . as part of their system, and to make such appropriation of funds to such schools, seminary, or institution of learning, and upon such terms and conditions as may be deemed proper.”[173] The 1855 law is instructive because it explicitly granted local officials discretion in both the selection of religious schools for public funding and the setting of terms for their inclusion. Such discretion necessarily entailed the prospect that some religious schools would not receive funding on terms equal with other private entities—yet we are again aware of no claim that the law violated the right to free exercise.[174]
Other states took similar steps to exclude religious organizations from access to public school funds. In Massachusetts, Catholic schools received taxpayer funds for more than two decades before an 1852 change in the law.[175] An 1854 Act passed by the Alabama legislature provided that “no portion” of the tax revenue received by the Mobile school board “shall be diverted to the maintenance or support of any school . . . that is under sectarian influence or control.”[176] And in 1872, the Illinois legislature enacted a similar law forbidding all towns and school districts to “pay from any school fund” any amount that would “help support or sustain any school . . . controlled by any church or sectarian denomination.”[177] In none of these states, too, is there any record of free exercise litigation brought in response.
In short, government officials across antebellum America took action that had the intended and actual effect of denying religious schools access to public funds on equal terms with their peer educational institutions. From New York to California, New Jersey to Indiana, Pennsylvania to Alabama, and Massachusetts to Illinois, religious societies were on the losing end of battles over taxpayer funds that eventually went to nonsectarian schools. Yet to our knowledge, these funding denials did not lead to any free exercise rights talk or litigation in state courts.
B. The Original Contours of the Right to Free Exercise
What does the foregoing evidence reveal about the right of religious charter schools to public funding under Justice Barrett’s original history framework? We think the history demonstrates at both steps two and three that the “scope of the pre-existing right [to free exercise] that the people enshrined in our fundamental law” did not encompass the claim advanced by religious charter schools.[178] Or to frame it in the language Justice Barrett used in her recent book, equal public funding for religious schools was simply not a “right already known to law” when the Free Exercise Clause was “memorialize[d].”[179] We note that the history may also suggest that the Supreme Court erred in its free exercise rulings recognizing a right to private school voucher funding in Espinoza and Carson, but this historical case is less clear (and is in any event water well under the bridge).[180]
Step one. We start with step one of the original history framework as applied to the question presented in Drummond. That step asks whether the historical record reveals a particular original meaning that itself resolves the dispute at hand.[181] On this score, the evidence we have amassed is not up to the task: our history does not shed light on the first-order question of what the public understood the phrase “free exercise” to mean. That is not a surprise; the Free Exercise Clause is written in such broad terms that its bare meaning alone is unlikely to directly resolve funding disputes that arise in complex regulatory programs more than two centuries later.[182]
That is not to say, though, that no original meaning argument could possibly settle the question in a way that would defeat the religious charter schools’ claim. As Professor Michael McConnell recounted in his magisterial work on the history of the right to free exercise, one prominent (though hardly uncontested) view of that right was espoused by John Locke in the 17th century.[183] To Locke, “rights of religious exercise [were] simply rights of nondiscrimination.”[184] In Locke’s understanding, “[w]hatsoever is lawful in the commonwealth, cannot be prohibited . . . in the church.”[185] On that view, the right to free exercise was a rule that the government could not forbid conduct by people of faith that it would permit if performed by secular actors. But it was not a rule that would entitle religious societies to benefits such as equal government funding. The Reagan-era Department of Justice espoused a similar textual understanding in 1986, arguing that the denial of government benefits based on an applicant’s religion would not violate the First Amendment insofar as its text reaches only those acts that “prohibit[]” the free exercise of religion.[186]
This original meaning argument, however, is in severe tension with Supreme Court decisions holding that the denial of at least some public funds or benefits in some circumstances can “prohibit[]” free exercise in violation of the Constitution.[187] Professor McConnell has presented evidence that the free exercise right may have been understood this way as well.[188] So for present purposes, we assume at step one that the original meaning of the Free Exercise Clause does reach at least some laws that deny religious entities access to public benefits, even if those laws do not actually prohibit or punish any religious activity. The real question is which laws are within the Free Exercise Clause’s scope, thus understood. The critical question, in other words, is about the original contours of the right—the very target of the second and third steps in Justice Barrett’s framework.
Step two. At step two, the framework asks whether the modern law under attack is the “updated model of a historical counterpart,” in the sense that the historical record includes materially similar “founding-era relative[s] of the challenged regulation.”[189] The evidence we have presented satisfies this description. Just as government actors today have chosen to deny public funds to religious charter schools on equal terms with non-religious schools, so too did government actors throughout the antebellum period deny funds to religious private schools on equal terms with nonsectarian schools. And just as was true in Dobbs (if not more so[190]), none of these many governmental acts were invalidated on constitutional grounds, let alone the subject of any “serious constitutional objections in the states.”[191] When state officials today deny funds to religious charter schools, in other words, that is the “updated model of a historical counterpart” that Justice Barrett would find dispositive under her original contours framework. This is strong evidence that no one in the founding era understood the pre-existing right to free exercise to include the right being claimed today.
Step three. Even if one were to conclude that the antebellum historical analogues we have identified were somehow too dissimilar to decide the matter at step two,[192] the same history would support a broader regulatory principle that would justify the denial of religious charter school funding at step three. That is to say, if Rahimi was correct to recognize a broad principle in support of gun laws that disarm individuals who threaten physical harm based on evidence of older laws that were significantly dissimilar to the federal law at issue,[193] then the question of religious school funding denials is an a fortiori case. The robust history of 19th century government actors refusing to fund religious schools on equal terms with their nonsectarian counterparts can easily support a broader principle that justifies the present-day denial of funds to religious charter schools. Thus, whether framed as a step two or step three case, the original history on offer refutes a free exercise right to religious charter school funding.
This Section considers four objections that are likely to arise in response to the historical evidence just presented.
1. Objection 1: The History Does Not Reflect the First Amendment
A first objection goes like this: the absence of free exercise litigation in response to denied funding requests by religious schools in New York, New Jersey, and elsewhere does not tell us anything about how the First Amendment’s Free Exercise Clause was originally understood because that Clause did not apply against the states until 1868—years after the respective funding denials.[194] It would have accordingly been impossible for the religious schools in the historic episodes to bring free exercise lawsuits because everyone knew then that the First Amendment barred only action by the federal government.[195] The absence of free exercise litigation thus does not prove the non-existence of a historically rooted federal right to equal religious school funding. And indeed, this is the response that counsel tried to offer Justice Gorsuch during the oral argument in Drummond.[196]
The premise of the counterargument is correct, but the conclusion does not follow. That is because in each historical example mentioned above, religious entities possessed state constitutional rights to free exercise that were materially similar to the right afforded by the federal Constitution.[197] Justice Gorsuch responded to the attorney advocating the religious charter schools’ position with this exact point.[198] This is significant because there is widespread agreement, from the Court to leading academics, that the meaning of the First Amendment’s Free Exercise Clause is informed by its state constitutional counterparts. In his concurring opinion in Fulton v. City of Philadelphia, for example, Justice Alito (joined by Justices Thomas and Gorsuch) went so far as to claim that “these state constitutional [free exercise] provisions provide the best evidence of the scope of the right embodied in the First Amendment.”[199] The nation’s foremost scholar of the history of the Free Exercise Clause, Professor Michael McConnell, has expressed the same view: the free exercise provisions in “state constitutions provide the most direct evidence of the original understanding” of the First Amendment.[200] As McConnell explains, “it is reasonable to infer that those who drafted and adopted the first amendment assumed the term ‘free exercise of religion’ meant what it had meant in their states.”[201]
The implication is that when mid-19th century religious schools responded to the denial of their equal funding requests without asserting a violation of their state constitutional free exercise rights, their failure to do so was also highly probative of the contours of the federal free exercise right. If anything, a noteworthy textual aspect of many of the state free exercise clauses would have made litigation more likely under the state provisions: the New York and California free exercise provisions explicitly forbid the states to engage in “discrimination or preference” regarding religious exercise, whereas that language is absent from the federal clause. Yet even with this express textual protection from discrimination, none of the religious school organizations argued that it was unconstitutional for the states to fund nonsectarian schools but not their own.
It is important here to notice that religious entities did litigate other, high-profile lawsuits asserting their state-level free exercise rights. Among other things, this shows that the lack of state-level litigation in response to the religious school funding denials did not reflect a general reticence by religious groups to assert their free exercise rights. In 1813, for instance, a Catholic priest in New York argued that it would violate the state constitution’s guarantee of free exercise if he were compelled to testify about a confession made by one of his parishioners, and a New York court agreed.[202] As Professor McConnell has argued, this is early evidence that the Free Exercise Clause could have been understood to prohibit state laws that actually interfered with religious worship, including to the extent of requiring exemptions from generally applicable laws.[203] But the same kind of evidence does not exist to support a free exercise right to equal public funding for religious schools alongside nonsectarian ones.
2. Objection 2: The History Is Tainted by Anti-Catholic Bias
A second objection seeks to diminish the force of the history we have presented by pointing to widespread anti-Catholic animus that was present in the 19th century. Justice Alito has detailed this history in his concurring opinion in Espinoza v. Montana Department of Revenue,[204] the Montana religious school voucher case, and there is no brief that can defend anti-religious bigotry of any kind, whether historically or in the present day.
Even still, we do not think anti-Catholic sentiment undermines the degree to which the 19th century history of religious school funding denials is probative of the original contours of the right to free exercise. For one thing, the first religious school organization to be denied public funding in New York City was not a Catholic school, but a Protestant school run by the Bethel Baptist Church.[205] That denial took place in 1825, when just eleven percent of the city’s inhabitants were immigrants, a full sixteen years before the denial of funds to a Catholic school.[206] To be sure, the City would eventually apply the same policy to deny requests by a broader array of religious entities, including requests from Catholic, Jewish, and Presbyterian schools.[207] But viewed fairly and in full, it is hard to write off the entire period as nothing more than an exercise in anti-Catholic bigotry. And that is even more so given that New York lawmakers during the same period sought to accommodate Catholic concerns, such as their criticisms of the curriculum used in schools run by the Free School Society.[208]
Even more fundamentally, the anti-Catholic bias objection is unable to explain the particular way in which the historical episodes unfolded. It would be one thing if Catholics had brought free exercise claims for equal funding, only to lose before judges who were susceptible to charges of religious bigotry. That is the kind of story that could undermine the strength of the historical record. So, too, if society at the time—including Catholics themselves—widely understood Catholics to be incapable of possessing legal rights at all; that would certainly be a kind of prejudicial blocking assumption that ought to minimize the force of the evidence.[209]
Yet the history refutes both of these stories. Throughout the period, Catholic litigants demonstrated the belief that they enjoyed robust free exercise rights under state constitutions, bringing lawsuits in contexts as diverse as the testimonial privilege,[210] funeral regulations,[211] school attendance laws,[212] and disputes over the Bible.[213] So the fact that Catholics did not make the same constitutional arguments in the context of school funding denials suggests that even they did not think a right to equal public funds was within the contours of the then-extant right to free exercise.
Ultimately, though, we need not take an all-or-nothing approach to the problem of history that is tainted by bigotry. Anti-Catholic bigotry may not be the entire explanation for the dearth of rights talk concerning equal funding for religious schools, but that doesn’t mean it was wholly irrelevant. There was undoubtedly some anti-Catholic animus in New York, New Jersey, and elsewhere during the antebellum period, and it deserves our fulsome condemnation. We are accordingly open to an approach to constitutional interpretation that discounts by some degree the meaning of history and tradition where the history itself entails a mixture of permissible motives (e.g., a desire to fund common schools open to all comers) and impermissible ones (e.g., a desire to exclude members of a particular faith for reasons of animus). Indeed, we would welcome it. But any such approach would have to be applied evenhandedly. That would mean, for example, discounting the relevance of antebellum state abortion bans enacted by all-male legislators who believed women undeserving of the right to vote, the right to own property, and even the right to control their bodies to the extent of refusing marital rape.[214]
Dobbs rejected this approach, though, reasoning that so long as some lawmakers might have been motivated at least in some part by something other than bigotry, there would be “no reason to discount the significance” of the historical evidence in 1868.[215] And if that is the Court’s approach to tainted history, then one would be hard pressed to ignore the significant evidence that no one in the 19th century—including religious communities themselves—believed religious schools possessed a free exercise right to equal public funding.
3. Objection 3: The History Is Too Dissimilar from Modern Charter School Programs
A third objection takes aim at the closeness of the analogy between the historic examples of religious school funding denials and present-day requests for funding by religious charter schools. Even if religious schools in antebellum America were denied access to public funds, it reasons, that is of little import now because today’s charter school programs (and the broader K–12 educational environment) are so different from the school funding programs and environment that existed in antebellum America.
One answer to the objection is that it overstates the difference between the historic examples and the modern charter school context. New York City’s Free School Society, after all, was tantamount to a charter school network in key respects: its schools were operated by a private, non-governmental entity that received a charter directly from the state; the Society received funds from the state in exchange for educating the city’s children; and the schools enjoyed great leeway to innovate with pedagogical approaches free of governmental regulation.[216] So when the City chose to fund the Free School Society (and several other privately incorporated entities as well[217]) in furtherance of its efforts to provide a free education to the public, but rejected requests from religious societies for the same arrangement, that is precisely the circumstance we are faced with today.
New Jersey’s experience is also analogous, albeit in a slightly different fashion. Under Section 12, the controversial portion of the state’s early school funding law, school officials granted public funds to some religious schools (in particular, those run by the Quakers) while denying school funds to other denominations. That is one sense different from the current picture, where states are not discriminating between religious organizations but rather refusing to fund religious charter schools altogether.
But the example still sheds light on the crucial question: did any religious organizations in the antebellum period understand the scope of their right to free exercise to include a right to equal school funding? It does so because a concern for government discrimination between religious groups, in the sense of preferencing one religion over another, is as much at the heart of the Free Exercise Clause’s purpose as the concern for protecting religion as a whole.[218] Thus, if any of the non-Quaker denominations that were denied public funds in New Jersey believed the state’s discriminatory choice to fund only the Quaker schools violated their right to free exercise, surely they would have voiced a complaint.[219]
A slightly different response disposes of objections to the evidence from states like California. Recall that in California, officials originally provided funding to religious schools such as San Francisco’s “ward schools,” but later changed course and directed funds only to government-run public schools.[220] A similar episode took place in Lowell, Massachusetts.[221] One might accordingly raise the objection that these examples are quite different from the discriminatory refusal to allow religious schools to participate in charter programs. On the contrary, they more closely resemble a present-day state choosing to fund traditional (as in, non-charter) public schools while declining to fund religious charters. Yet if that is so, then the historic example no longer does any work because no one thinks a state today must fund religious private schools simply because it provides a secular public school option.[222]
But the key to seeing why the historic examples from California and Massachusetts remain important is to understand why a state’s decision to fund traditional public schools without also funding religious schools is permissible: the state’s decision cannot be unconstitutional discrimination against religion because the Establishment Clause requires traditional public schools to be secular.[223] Or put slightly differently, when states today follow what the Establishment Clause commands of their public schools as secular institutions, it would be nonsensical to infer from that act that the states are unconstitutionally discriminating against religion.
Those familiar with the history of religion in the public schools will quickly see why this poses a problem for proponents of religious charter schools. The entire premise of the objection—that traditional public schools must be non-religious under the Establishment Clause—is largely the product of a pair of Supreme Court rulings in the 1960s.[224] A century earlier, during the key period for original contours history, there was no constitutional principle that states could not fund government-run public schools if they engaged in religious instruction. To the contrary, religion was often present in the public schools of that era, as students commonly read the Bible and utilized it as a source of moral instruction.[225] Some state court rulings even explicitly blessed the practice, and it was not until the end of the 19th century, after the Fourteenth Amendment’s ratification, that some courts reached the opposite result.[226]
This fact is devastating to attempts to distance the present-day charter school context from the historic experience of religious schools denied funding in places like San Francisco and Lowell. For when religious schools there were denied public funds even as their nonsectarian common school counterparts kept receiving them, the religious schools would have had every reason to believe this was discrimination on the basis of their religion. Catholic schools, in particular, had precisely this view of the so-called nonsectarian common schools, which they saw as thinly-veiled efforts to enshrine Protestant views over Catholic ones.[227] Their failure to advance constitutional arguments to equal funding thus suggests that their existing right to free exercise did not encompass such a claim.
The bottom line is that religious schools across the nation would have found governmental choices to deny their requests for public funds deeply problematic regardless of whether taxpayer dollars were directed instead to private nonsectarian entities (as in New York), other religious societies (as in New Jersey, Indiana, and Philadelphia), or to nonsectarian, government-run common schools (as in California and Massachusetts). All of these approaches would have represented a state decision to treat religious schools unequally on the basis of their religion under a public funding program. Yet if any of these schools believed their then-existing right to free exercise prohibited this differential treatment, we have been unable to find such evidence in the record.
4. Objection 4: Constitutional Rights Should Not Be Determined by Outmoded History
A final objection cuts more deeply. Supporters of religious charter schools may suggest that there is something problematic with the entire concept of limiting their constitutional rights by reference to historical understandings that existed long, long ago. Or to put it more provocatively, maybe the right of religious schools to equal public funds shouldn’t be based on the beliefs that were held by white, male, mostly Protestant landowners before the general public embraced indoor toilets.[228]
It’s a forceful objection, but one whose ship has already sailed. Today’s Supreme Court is one that determines the scope of gun rights by looking to “th[e] Nation’s historical tradition of firearm regulation” at a time when guns were typically loaded through the muzzle.[229] It’s also a Court that rejected the right to abortion in part because of views held by common law jurists such as Sir Matthew Hale,[230] who rather infamously presided over witch trials and advocated the marital rape exception.[231] Indeed, the Court has even looked to history and tradition in recent cases concerning the proper relationship between religion and schools.[232]
There is too much to be said about the debate over history and tradition as interpretive source material to be recounted here.[233] For present purposes, suffice it to say that religious charter school proponents would have legitimate grounds for taking aim at the interpretive methodology deployed across these cases. Maybe there are good reasons, reasons grounded in how we understand rights in the here and now, for holding that a state funding program open to secular charter school organizations may not deny access to religious ones. But any argument to that effect in Drummond would be irreconcilable with the logic of cases like Dobbs and Bruen. We thus think it virtually inconceivable that the conservative majority on today’s Court would openly backtrack from the kinds of arguments and evidence that are given pride of place under the original history framework. And if that is right, then this last objection is unlikely to move the Court’s needle.
III. The Religious Charter Schools’ Free Exercise Theory
Given the historical evidence against a free exercise right to religious charter school funding, it is natural to wonder about the contrary argument advanced by religious charter school supporters. This Part engages with that position. The first section presents the pro-religious charter school argument; a second section describes some objections to it.
A. The Pro-Religious Charter School Position
On what ground do the proponents of publicly funded religious charter schools base the free exercise claim in Drummond? The most eye-catching aspect of their argument is what it omits: history. Consider the cert petition filed by the St. Isidore of Seville Catholic Virtual Charter School. Outside of its appearance in the opening pages of the petition describing the case’s “procedural history,” the term “history” does not appear once in St. Isidore’s entire brief.[234] (The term “free exercise” appears thirty-eight times.[235]) For comparison purposes, the Solicitor General’s cert petition in Rahimi used the word “history” thirty times.[236] St. Isidore’s merits brief in Drummond fared no better: although it discussed the history of religious school funding in reference to the Establishment Clause, it made no claim that its asserted free exercise right to equal funding had any support in American history.[237]
Fairly described, we think the pro-religious charter argument is one that turns instead on a combination of two core moves: the description of a right at a broad level of generality and the embrace of late-evolving judicial precedent. That is to say, the free exercise case for religious charter schools starts with a trio of 21st century precedents that stand for a general anti-discrimination principle under which states cannot choose to fund secular private entities without making the same funds available to religious ones. And it then relies on a convoluted body of 20th century, judge-made state action precedents to conclude that charter schools are in fact private entities.
Start with the broad, anti-discrimination principle in public funding. To ground that principle, religious charter school supporters point to a trilogy of Supreme Court cases decided between 2017 and 2022. The first of these is Trinity Lutheran v. Comer, which held in 2017 that a state’s refusal to award funds from a playground resurfacing grant program to a religiously affiliated daycare provider violated the Free Exercise Clause.[238] Surveying a series of 20th century cases, the Court inferred the existence of a broad free exercise principle that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only” under the “most exacting scrutiny.”[239]
The Court then extended Trinity Lutheran to the context of government funding programs that offset private school tuition in Espinoza v. Montana Department of Revenue and Carson v. Makin.[240] In both cases, states ran programs that offered tuition aid to parents who enrolled their children in secular private schools, but not religious ones. And in both cases, the Court found this selective funding to be in violation of the Free Exercise Clause.[241] Taken together, Espinoza and Carson thus stand for the proposition that if a state decides to “subsidize private education,” it “cannot disqualify some private schools solely because they are religious.”[242]
At first blush, then, the religious charter schools’ position seems quite plausible. Given the principle announced in Trinity Lutheran and then extended in Espinoza and Carson, religious charter schools would seem to be entitled to public funding so long as a state’s choice to fund secular charters amounts to a government subsidy of “private education.”[243] The difficulty is that when states operate charter school programs, it is not obvious that they are subsidizing “private education.” Indeed, the states’ own statutes explicitly define charter schools as “public schools,” not private ones.[244] So the core Free Exercise Clause holding from Espinoza and Carson would not seem to apply to charter schools on its own terms.
This is where the 20th century state action precedents enter. Rather than presenting historical evidence to suggest that religious charter school funding requests would have fit within the scope of the pre-existing right to free exercise, advocates have turned to the newer state action doctrine to suggest that the private education equal-funding principle announced in Espinoza and Carson should also apply in the more specific context of publicly funded charter schools. Here is the free exercise state action argument in the words of the theory’s leading proponent, Professor Nicole Stelle Garnett: “In most states, charter schools are not state actors. If that is right, then charter schools are essentially programs of private-school choice, which Carson holds not only may permit religious charter schools but must permit them.”[245] Or as Garnett has argued, charter schools “are private actors, and because they are, the state is bound by the Free Exercise Clause’s nondiscrimination mandate to permit them to be religious.”[246] The exact rationale behind this conclusion is unclear, but other work by Garnett suggests she may view the charter schools’ status as providers of public or private education as directly controlled by the state action inquiry. She has argued, for instance, that if one concludes that charter schools are nonstate actors, that means “charter schools are, for federal constitutional purposes, private schools,” with the result that “states cannot prohibit religious schools from participating in such programs.”[247] The supporters of religious charter schools in Oklahoma have advanced the same argument.[248]
This, then, has been the terrain of argument for the free exercise right to religious charter schools so far. If charter schools are nonstate actors under the Supreme Court’s state action doctrine, then the Free Exercise Clause guarantees them a right to equal funding. If they are state actors, it does not. Even opponents of religious charters have joined issue on the state action question, from the Oklahoma Attorney General to leading academics.[249] And when the Oklahoma Supreme Court decided St. Isidore’s case in June 2024, it rejected the school’s free exercise claim on the ground that charter schools in Oklahoma are in fact state actors. Accordingly, the Oklahoma court held that not only does the Free Exercise Clause not require the state to fund religious charter schools, but that any such funding would itself be unconstitutional as a violation of the Establishment Clause.[250]
We are hesitant to put too much stock in the Oklahoma Supreme Court’s state action and Establishment Clause determinations. For one thing, the U.S. Supreme Court has candidly admitted that “[w]hat is ‘private’ action and what is ‘state’ action is not always easy to determine.”[251] Professor Garnett’s argument that charter schools might be nonstate actors is thus plausible under the Court’s malleable precedents.[252] For another, there is an additional, difficult state action question even if the charter schools themselves are private actors: after all, when a state funds religious schools, that act is itself state action absent some countervailing reason.[253]
Perhaps just as importantly, we note also that the Establishment Clause issue that does unquestionably turn on the state action inquiry is surprisingly unimportant in the sense of having low stakes for the future of K–12 education. This is for a straightforward political reason: the same (generally conservative) states that would consider voluntarily funding religious charter schools if that were allowed under the Establishment Clause are also states where those same religious institutions can already access public funds through vouchers, tuition tax-credit programs, and education savings accounts.[254] So if the Establishment Clause were all that turned on the state action inquiry, a ruling that charter schools are nonstate actors would not be especially significant. Indeed, if all St. Isidore of Seville Catholic Virtual School really wanted was a share of public funds to provide its educational services to Oklahoma children, it wouldn’t have needed to file a charter school application to begin with—much less take its case up to the Supreme Court. It could have simply availed itself of voucher-like funding programs already open to religious private schools throughout the state.[255]
But St. Isidore’s aim—and the aspiration of religious charter school proponents more broadly—is to secure something very different: a free exercise ruling that would apply in every state that currently operates a charter school program.[256] As Oklahoma Supreme Court Justice Yvonne Kauger astutely observed during oral argument before her court, St. Isidore’s claim is a “test case.”[257] If St. Isidore prevails, every state that currently operates a charter school program would be constitutionally compelled to fund religious charter schools, opening the door to billions of previously unavailable taxpayer dollars for religious education in states from California to New York.[258] That is why it matters immensely if religious charter school advocates are right to suggest that the free exercise issue is controlled by the application of 20th century state action precedents in combination with the Trinity Lutheran trilogy’s broadly construed, anti-discrimination funding principle.
As we discuss next, though, this argument should be unlikely to persuade today’s Supreme Court twice over. The state action theory of the Free Exercise Clause is the victim of deep category confusion, leaving it unconvincing on its own methodological terms. And even if that weren’t so, there is no reason to think a majority of today’s Justices—at least if they are being intellectually consistent—would ignore an ample body of original history evidence to rule instead on the basis of evolving, judge-made precedents and rights claims at broad levels of generality.
The first problem with the religious charter schools’ free exercise argument in Drummond is that it is wrong on its own terms. That is, even if the right way to decide a free exercise case were to rely on modern judicial precedents to determine whether charter schools provide a “private education” for purposes of Carson and Espinoza’s equal funding rule, religious charter advocates have done so in a misguided way.[259]
To see how, start at the beginning. The ultimate free exercise merits question is whether a state that funds secular but not religious charter schools has “prohibit[ed] the free exercise” of religion in violation of the First Amendment.[260] Religious charter advocates have argued that the answer is “yes” if (and only if) charter schools are nonstate actors under the Supreme Court’s state action doctrine. But the Court has explicitly cautioned that the state action doctrine is merely a “threshold” test to determine when a defendant can be sued under the Constitution; it is not itself an answer to any merits question concerning the content of the Constitution’s rights provisions, including the First Amendment.[261] So it is immediately unclear why the substance of the Free Exercise Clause should be tethered to the outcome of an antecedent state action analysis.
The best explanation we can think of is that the pro-religious charter position is trading on a convenient happenstance: the fact that the word “private” appears in some of the Supreme Court’s state action opinions. Thus, when the Court determines that an entity is not a state actor, it sometimes uses the term “private actor” as a shorthand for that conclusion.[262] Seizing on this incidental term, advocates contend that if religious charter schools are private actors, then they necessarily fall within Espinoza and Carson’s rule that a state that has chosen to “subsidize private education . . . cannot disqualify some private schools solely because they are religious.”[263] If something is private in the context of one legal doctrine, the argument seems to imply, then it must be private in all of them.
But labels can mislead. Just because an entity is “private” for one purpose (like the Supreme Court’s state action doctrine) doesn’t mean it is “private” for every purpose (like the question whether charter schools provide a “private education” or a public one). Certainly educators and policy experts in the school reform community who have debated the public vs. private nature of charter schools for years would be surprised by the assertion that the answer to their educational policy debate has actually already been settled by an arcane constitutional law doctrine developed decades ago in state action cases concerning billboard advertising choices made by Amtrak, the discharge of Medicaid patients by a nursing home, and the delivery of electricity by a utility company.[264]
Rather than labels, then, what we ought to care about is substance. Is there some logical reason why entities that do not satisfy the state action inquiry ought to automatically prevail on free exercise claims? Religious charter school advocates have yet to offer up such a reason, and we are hard-pressed to think of any. Certainly precedent does not offer any good account; the Supreme Court did not so much as mention the state action doctrine in Carson and Espinoza when it determined that the private schools at issue in those cases possessed a free exercise right to equal funding. That is a glaring absence: if the state action doctrine really is the key to a successful free exercise merits argument, why has the Supreme Court never bothered to mention it?
If anything, Supreme Court precedent cuts the opposite way. In Locke v. Davey, the Supreme Court rejected a free exercise challenge to a state scholarship program that barred recipients from using scholarship funds to prepare for the ministry.[265] In that case, the Christian college that wished to receive public funds was indisputably a private, nonstate actor.[266] If religious charter school advocates were correct that any nonstate actor must automatically prevail in their free exercise claim, Locke would have been an easy case in the opposite direction. But instead, as Carson v. Makin conceded, the exclusion of religious recipients from the funding program in Locke was constitutionally permissible because of the nation’s lengthy history of refusing to spend public funds to inculcate church leaders.[267]
This historical approach in Locke offers an excellent segue to the second problem with religious charter advocates’ free exercise argument: it is a methodological nonstarter at today’s conservative Supreme Court. Indeed, their argument bottoms out on the very same maneuvers that the three liberal Justices championed in their joint Dobbs dissent. In Dobbs, the liberal Justices argued that constitutional rights could be recognized if they comport with broadly defined constitutional principles.[268] The dissenting Justices also argued that “applications of liberty and equality can evolve” as the Constitution “gains content from the long sweep of our history and from successive judicial precedents . . . .”[269] And they further argued that history is no bar to the recognition of these new and evolving rights, even if the claimed rights are in clear contravention of specific historical traditions.[270]
Supporters of a free exercise right to religious charter school funding rely on the same basic moves. That argument, as we have seen, is also grounded in a broadly defined equal funding principle.[271] It is likewise reliant on evolving notions of rights that have emerged out of “successive judicial precedents” decided in the 20th and 21st centuries.[272] And perhaps most significantly, the religious charter argument is irreconcilable with a considerable historical tradition of governments engaging in the specific practice at issue: the denial of religious school funding requests.[273]
We do not draw these similarities for the purpose of defending the interpretive approach used by the Dobbs majority. Our point is instead one about intellectual consistency. If the Dobbs majority was correct to reject the dissenters’ approach to constitutional interpretation on its pathway to overruling the right to abortion, the same Justices cannot then turn around and adopt the dissenters’ interpretive approach to recognize a free exercise right to religious charter schools. Not, at least, if they wish to remain within the boundaries of principled judicial decision-making.
Our examination of the original history interpretive framework and the history of religious school funding denials yields several important payoffs. We focus on three: implications for K–12 education in America; lessons for constitutional theory; and a takeaway about the institutional legitimacy of the Supreme Court in this precarious moment.
The impact of the free exercise case for religious charter schools is perhaps most obvious—and most significant—for the American K–12 education system.[274] On the one hand, if the Supreme Court were to decide the religious charter schools’ free exercise claim based on original contours history, the result would be to preserve the status quo in American K–12 education. On the other, if the Court were to adopt the position advanced by religious charter proponents, the result would be a radical destabilization of public education as we know it.
Begin with the status quo. In some ways, the phrase “status quo” is a misnomer because charter schools are themselves an innovation that has disrupted traditional public education. One way to see this disruption is in terms of student enrollment. In 2000, just 400,000 students in the United States attended charter schools, which we define to include “publicly funded school[s] that [are] typically governed by a group or organization under a legislative contract—a charter—with the state [or] district . . . .”[275] By 2021, that number had increased nearly ten-fold, to 3.7 million students.[276] The amount of taxpayer dollars spent on charter schools has increased dramatically as well, exceeding $26 billion as of 2017–18.[277] For frame of reference, that was roughly the same total as the GDP of the entire nation of Iceland.[278]
The rise of charter schools has changed more than just public education’s enrollment patterns; it has also affected educational outcomes. The evidence on this front has evolved over time. The most well-known studies have been run by the Center for Research on Educational Outcomes (CREDO) at Stanford University. When CREDO first studied charter school outcomes in 2009, researchers used a matching technique to compare student growth in charter schools against growth experienced by students in traditional public schools who were the “virtual twin” of their charter school counterparts based on a host of major demographic factors.[279] The results were not good for charter school supporters. Whereas seventeen percent of the 2,403 charter schools studied in 2009 produced growth in math scores that were significantly higher than the growth experienced by their traditional public school counterparts, more than twice as many charter schools (thirty-seven percent) produced math gains that were significantly below what their students would have achieved in a traditional public school.[280]
When CREDO used a similar study methodology in 2013, charter schools had made modest improvements, with performance roughly on par with traditional public schools.[281] And by 2023, charter schools had, on average, begun to outpace traditional public schools by producing six more days of learning in math and sixteen additional days of learning in reading per year.[282] The effects were especially pronounced for Black and Hispanic students, as well as low-income students.[283] All told, thirty-six percent of charter schools now outperform traditional public schools in reading, compared to just seventeen percent that perform worse (with forty-seven percent performing roughly the same).[284]
A historically grounded ruling against religious charter schools would accordingly permit ongoing state experimentation and expansion of charter schools to continue, at least to the extent that such schools are supported by the democratic process. On that front, it should be noted that the public is divided: in 2022, forty-five percent of Americans said that they supported public charter schools, while thirty-six percent opposed them.[285] Notably, however, that approval was not equal along political lines—just thirty-eight percent of Democrats said they approved of charter schools compared to forty-five percent in opposition.[286] So the status quo is one in which charter schools are growing in both number and effect, subject to the pressures of the ordinary political process.
If the Supreme Court were to ignore the original history in Drummond, however, all bets would be off. For the first time, a number of progressive states—including California, New York, and Massachusetts as just a few with charter school programs—would be required to fund religious education out of public coffers.[287] That outcome would break with a norm of church-state separation that has existed in American public education since at least the 1960s, when the Supreme Court held that public schools may not partake in prayer or Bible reading, and in truth even before.[288] Suddenly, public funds would be used for what some opponents view as religious indoctrination, as schools like St. Isidore use taxpayer dollars to teach their particular religious viewpoints as truth. As a Catholic school official in New York put it, “the promise of public funding in [New York] could be game-changing. It would allow us to grow our network . . . .”[289]
Indeed, a ruling that religious charter schools have a free exercise right to public funds would make the Court’s recent decisions involving religious private school vouchers seem trifling. That is saying something. After all, when the Court held in Espinoza and Carson that Montana and Maine could not exclude religious schools from voucher-like programs,[290] onlookers lamented the rise of taxpayer-funded religious education and the collapse of the church-state wall.[291] Yet in truth, Espinoza and Carson’s impact was modest. Because most voucher states are politically conservative, most already allowed religious schools to receive funds before either ruling.[292]
But that is only half of the possible sea change for the American education system. The other half arises out of the likely political blowback that religious charter schools would engender in progressive states. Put simply, the recognition of a free exercise right to religious charter school funding would threaten to fracture an unstable school reform coalition. Democratic support for charter schools is already tenuous.[293] Whereas some Democrats oppose charters due to concerns that they divert funds from traditional public schools,[294] the pro-charter wing of the progressive camp supports charter schools because of their positive role in efforts to eliminate the racial and wealth-based educational opportunity gap.[295] Yet a constitutional ruling requiring taxpayer funding of religious charter schools could drain support from even ardent equity-focused supporters on the left, leaving the entire charter school sector at risk in progressive states.[296]
Either way, then, a free exercise ruling in favor of religious charter schools would lead to major changes in the world of K–12 education. Either hundreds of millions (if not billions[297]) of taxpayer dollars would be redirected toward the teaching of the Bible and other religious texts as truth, or progressive states will make the painful choice to shutter charter schools altogether. Whether these states will be forced to make this difficult choice as a matter of constitutional law is thus supremely important.
How the Supreme Court approaches the religious charter school free exercise issue will also teach important lessons for constitutional theory. First, the Court’s treatment of the historical record we have presented will offer important clarification on the kinds of historical regulatory patterns that are sufficient to rule in—or out—particular rights claims. Justice Barrett has already been clear about her (in our view, correct) belief that the non-existence of closely analogous historic regulations does not establish a constitutional right to engage in the unregulated activity.[298] Such an approach, she explained in Rahimi, would wrongly assume that legislatures of old “maximally exercised their power to regulate, thereby adopting a ‘use it or lose’ view of legislative authority.”[299] Or put another way, just because 19th century legislatures didn’t disarm domestic violence offenders doesn’t mean 21st century lawmakers are constitutionally forbidden to do the same.
But what about when closely analogous bodies of historical regulations do exist? Here, the Court has yet to offer a clear set of generally applicable decision rules. Some cases would seem straightforward, such as where 19th century courts adjudicated the constitutionality of the old regulations and either uniformly struck them down or upheld them. That, however, is not true of the history of religious school funding denials, where the analogous historical regulatory actions occurred, and no one challenged them at all. This scenario is arguably trickier because historians will not always know why challenges failed to materialize. Perhaps the absence of contestation was because no one—not even the individuals burdened by the government conduct—thought the underlying conduct was protected by a then-existing constitutional right. This is what Dobbs held about the absence of legal challenges to 19th century abortion bans,[300] and the same would seem true of religious school funding denials: religious groups brought free exercise claims in many other antebellum contexts but not this one, suggesting they didn’t think the free exercise right encompassed a right to equal funds.[301] This kind of pattern would be especially probative of the non-existence of a legal right under the original law originalism approach championed by Professors William Baude and Stephen Sachs: if religious charter schools (or their materially similar counterparts) had no free exercise right to public funds in the 19th century, and “the law stays the same until it’s lawfully changed,” then it’s hard to see how things could be any different for today’s religious charter schools.[302]
Sometimes, though, people fail to bring constitutional claims due to insidious blocking assumptions that we should be uncomfortable about accepting as a reason to deny a legal right. Few people alive in the 19th century, for instance, believed women should have the right to vote or say no to marital rape, so the absence of abortion rights claims may really reflect abhorrent prejudice.[303] Is the taint of these bigoted blocking assumptions a good enough reason to decide a case based on a different, non-historic mode of argument? The free exercise dispute over religious charter schools will provide the Court an important opportunity to clarify each of these matters.
A second takeaway for constitutional theory concerns the interaction between the second and third steps of Justice Barrett’s original contours framework. Suppose the Court were to conclude that the historic examples we have presented here are not analogous enough to the modern-day charter school context, such that other modes of argument may be considered at step three—including perhaps the broader, modern-day principles and judge-made rules urged by charter supporters. If the Court can skip over history to use other modes of decision-making so readily, what should we make of the original contours interpretive framework then?
The very possibility of this outcome shows that our normative assessment of original contours history as a framework must in some irreducible sense be contingent on judicial behavior. That is to say, constitutional theorists might applaud the framework’s intellectual integrity for its open recognition that history actually does not—and cannot—decide every modern-day dispute over constitutional rights. Or as Justice Barrett prudently conceded in Samia, the Court “overclaims” when it finds every case to be controlled by history because history is only “sometimes dispositive.”[304] We might further applaud Barrett’s recognition that when history is not dispositive, other plural modes of argument should enter the equation.[305] But the judicial discretion to look past history to other modalities is only as good as the judge who exercises it. Judges are people, and all people are susceptible to motivated reasoning.[306] So if a majority of the Justices on the Court decide to sidestep history and rely instead on evolving precedent and broadly-framed principles to rule in favor of a free exercise right to religious charter schools, that will teach us a great deal about the false promise of history-focused methods of constitutional interpretation as a constraining force.[307]
This last observation points to a final takeaway that concerns the Supreme Court itself. The principled development of constitutional theory is all well and good, but at the end of the day the public knows the Court by its results.[308] If those results consistently swing in a single, partisan direction, that can be a problem for public confidence.[309] But it is especially a problem if the Court deviates from its stated interpretive methods for the apparent purpose of reaching those slanted results.
The public might understand (even if it does not entirely agree with) the Court neutrally applying a history-focused interpretive method in every case, with the result that outcomes are frequently, but not always, conservative-leaning. What the public will not understand—and should not accept—is the Justices playing a game of methodological heads-we-win, tails-you-lose, where they use history when it leads to conservative outcomes and then discard it in favor of evolving precedents and broader principles to attain still more conservative outcomes in cases where history would not allow it.
In this sense, then, for as much as the free exercise case for religious charter schools will teach us about the fate of the American education system and the future of constitutional theory, it may teach us even more about the Supreme Court we already have. Will it see in the religious charter schools’ claim an opportunity to apply a historical interpretive framework that sometimes cuts against conservative results? Or is the Court’s choice among interpretive methods merely a means to an overtly partisan end?
History is ascendant at today’s Supreme Court; that much is clear.[310] For supporters of progressive causes, this methodological development can create a difficult dilemma. Should progressive advocates make forceful historical arguments even if it means conferring legitimacy upon an approach that many find deeply troubling?[311] Or should they refrain from participating in a problematic mode of argument at the cost of losing individual cases in which historical evidence might have proved decisive?
We do not claim to know the answer to this question. What we hope to have shown instead is that if one wishes to defend a state’s choice to fund secular-only charter schools, there exists a strong constitutional argument rooted in the very kind of original history evidence that the Supreme Court has found attractive. Or to paraphrase the Court’s reasoning in Dobbs, “[w]hen legislatures began to [deny public funding requests from religious schools] as the [19th] century wore on, no one, as far as we are aware, argued that the laws they enacted violated [the right to free exercise].”[312]
There is reason to expect, given the Court’s composition, that historical arguments of this sort will continue to proliferate in the years ahead. That raises the prospect that Justice Barrett’s original history framework will take on greater salience, too. For example, the Supreme Court recently held that state laws banning gender affirming care for minors do not violate the Equal Protection Clause.[313] But some Justices—including Justice Barrett—have expressed interest in a different line of constitutional argument rooted in the Due Process rights of parents to make medical decisions on behalf of their children.[314] Some scholars have even advanced a historical case for such a right grounded in the common law “duty of necessaries.”[315] How might that argument fare under the framework of original history? And what of the parental rights argument in the mirror image context of challenges to progressive state laws banning gay conversion therapy?[316]
We have some intuitions,[317] but a genuine effort to engage with these (and other) historical arguments is work for another day. For now, it is enough to say this. The battle over religious charter schools is likely to serve as a major proving ground for the Court’s claim that historical evidence can discipline judicial decision-making in an evenhanded way.[318] And the repercussions of that battle will reverberate far and wide: to faith communities, to K–12 schools throughout the country, and to a broader public that is watching the Court with a historic sense of distrust.[319]
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* Professor of Law, University of California, Davis, School of Law; Affiliate, Stanford Constitutional Law Center. ↑
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** Associate Professor and Gary Stuck Faculty Scholar in Education, University of North Carolina School of Education. The authors thank Mitchell N. Berman, Alan Brownstein, Zalman Rothschild, Richard Schragger, Micah Schwartzman, Campbell F. Scribner, and participants at a workshop at UCLA Law School for helpful feedback. ↑
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. See Lawrence Hurley, Supreme Court’s Conservatives Lean Toward Allowing Country’s First Religious Public Charter School, NBC News (Apr. 30, 2025, 2:36 PM), https://www.nbcnews .com/politics/supreme-court/supreme-court-considers-endorsing-countrys-first-religious-public-char-rcna203328 [https://perma.cc/VT33-6XWV]. ↑
-
. Transcript of Oral Argument at 28, Okla. Statewide Charter Sch. Bd. v. Drummond, 605 U.S. 165 (2025) (Nos. 24-394, 24-396). Justice Gorsuch’s question specifically referenced a historians’ amicus brief that these authors participated in drafting. See id. (citing Brief of Historians and Legal Scholars as Amici Curiae in Support of Respondent, Okla. Statewide Charter Sch. Bd. v. Drummond, 605 U.S. 165 (2025) (No. 24-394)). ↑
-
. See infra Section II.B. ↑
-
. See infra Section II.B. ↑
-
. See, e.g., Vidal v. Elster, 602 U.S. 286, 301 (2024) (rejecting a First Amendment challenge to the Lanham Act’s names clause because it “has deep roots in our legal tradition”); Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 250 (2022) (“[A] right to abortion is not deeply rooted in the Nation’s history and traditions.”); N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022) (asking if “a firearm regulation is consistent with this Nation’s historical tradition”). The Court even wrote in a major recent case concerning religion in a public school, Kennedy v. Bremerton School District, that “[t]he line that courts and governments must draw between the permissible and the impermissible has to accord with history.” 597 U.S. 507, 535–36 (2022) (internal quotation marks omitted). ↑
-
. Okla. Statewide Charter Sch. Bd. v. Drummond, 605 U.S. 165 (2025). ↑
-
. See id. at 166 (“Justice Barrett took no part in the consideration or decision of these cases.”). ↑
-
. See Josh Blackman, Further Thoughts on Justice Barrett’s Recusal in Oklahoma Statewide Charter School Board v. Drummond, Volokh Conspiracy (Jan. 26, 2025, 12:53 AM), https:// reason.com/volokh/2025/01/26/further-thoughts-on-justice-barretts-recusal-in-oklahoma-statewide-charter-school-board-v-drummond/ [https://perma.cc/ALC6-3LSZ]. ↑
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. See, e.g., Andrea M. Picciotti-Bayer, What Should We Make of the Supreme Court’s St. Isidore of Seville Virtual School Decision?, Nat’l Cath. Reg. (May 24, 2025), https://www.ncregister. com/commentaries/bayer-oklahoma-s-charter-school-opinion-analysis [https://perma.cc/YX3X-2YFS] (“It’s only a matter of time before a case questioning the constitutionality of excluding religious schools from charter-school programs is before the high court once again.”). ↑
-
. Fast Facts: Charter Schools, U.S. Dep’t of Educ.: Nat’l Ctr. for Educ. Stat., https:// nces.ed.gov/fastfacts/display.asp?id=30 [https://perma.cc/ZHD6-8EWX]. Far fewer students attend private schools using publicly-funded school vouchers. See Nicole Stelle Garnett, Manhattan Inst., Unlocking the Potential of Private-School Choice: Avoiding and Overcoming Obstacles to Successful Implementation, (2023), https://files.eric.ed.gov/fulltext/ED627462.pdf [https://perma.cc/VX2V-7B93] (counting roughly 700,000 students using vouchers). And nearly all these students attend schools in conservative-leaning states that voluntarily permit religious school participation, unlike the wide range of states that would be affected by a free exercise charter school ruling. See Aaron Tang, Who’s Afraid of Carson v. Makin?, 132 Yale L.J.F. 504, 522 n.101 (2022) (showing that twenty-six of twenty-nine states with voucher-like programs already permitted religious schools to receive public funds before the Court’s decisions in Espinoza and Carson). ↑
-
. See Jennifer Hudson, Jennifer Sable & Christopher D. Hill, Public Charter School Expenditures by School Level, U.S. Dep’t of Educ.: Nat’l Ctr. for Educ. Stat. (June 22, 2022), https://nces.ed.gov/learn/blog/public-charter-school-expenditures-school-level [https://perma.cc/M4B7 -3Y4Y] (noting that “[p]ublic charter schools spent more than $26.83 billion in 2017–18”). ↑
-
. California educated 678,056 students in charter schools during the 2021–22 school year. Jon Regardie, The Mystery of the Missing Public School Students, L.A. Mag. (Apr. 20, 2022), https://lamag .com/education/the-mystery-of-the-missing-public-school-students/ [https://perma.cc/UM82-93GC]. Even at a conservative estimate of $10,000 per student in annual charter funding, this would amount to a total charter school budget in excess of $6 billion per year. Cf. Jenavieve Hatch, What Does Gavin Newsom’s $291 Billion Budget Mean for California’s Education Programs?, Sacramento Bee (Mar. 21, 2024, 12:58 AM), https://www.sacbee.com/news/local/education/article284087253.html [https:// perma.cc/2LZ3-5A8K] (describing the governor’s proposed budget, which would allocate more than $23,000 per year in student spending). ↑
-
. See Margaret E. Raymond, James L. Woodworth, Won Fy Lee & Sally Bachofer, As A Matter of Fact: The National Charter School Study III 2023, at 5–6 (2023) (finding large math and reading gains for Black, Hispanic, and low-income students who attend charter schools compared to similar students who attend nearby traditional public schools). ↑
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. See, e.g., Richard Schragger, Micah Schwartzman & Nelson Tebbe, Reestablishing Religion, 92 U. Chi. L. Rev. 199, 278 (2025) (“cautiously predict[ing]” that “religious groups [will] win the right to run charter schools”); Ira C. Lupu & Robert W. Tuttle, The Remains of the Establishment Clause, 74 Hastings L.J. 1763, 1805 (2023) (suggesting a similar outcome); Nicole Stelle Garnett, Supreme Court Opens a Path to Religious Charter Schools, Educ. Next, Spring 2023, at 8, 14 (a “strong case can be made” that “the Constitution gives [religious organizations] the right to” operate charter schools). ↑
-
. United States v. Rahimi, 602 U.S. 680, 738–39 (2024) (Barrett, J., concurring). ↑
-
. Id. (internal quotation marks omitted). ↑
-
. Id. at 739 n.*; see also Vidal v. Elster, 602 U.S. 286, 324 (2024) (Barrett, J., concurring in part) (“Relying exclusively on history and tradition may seem like a way of avoiding judge-made tests. But a rule rendering tradition dispositive is itself a judge-made test. And I do not see a good reason to resolve this case using that approach rather than by adopting a generally applicable principle.”). ↑
-
. See infra Section I.A. ↑
-
. See infra Section I.B. ↑
-
. See, e.g., Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning, 101 B.U. L. Rev. 1953, 1965 (2021) (listing and describing several prominent members of the originalist family of constitutional theories). ↑
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. Adam Liptak, Justice Amy Coney Barrett’s Independent Streak Marked Supreme Court Term, N.Y. Times (July 8, 2024), https://www.nytimes.com/2024/07/08/us/politics/amy-coney-barrett-supreme-court-justice.html [https://perma.cc/U3RP-XPHW]; Stephen I. Vladeck, Opinion, The Most Interesting Justice on the Supreme Court Is Also the Loneliest, N.Y. Times (July 8, 2024), https://www. nytimes.com/2024/07/08/opinion/amy-coney-barrett-supreme-court.html [https://perma.cc/YY3Z-V6CQ]. ↑
-
. See Ilya Shapiro, Justice Kennedy: The Once and Future Swing Vote, Cato Inst. (Nov. 13, 2016), https://www.cato.org/commentary/justice-kennedy-once-future-swing-vote [https://perma.cc/ QF9Q-9P67]. ↑
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. William Oland Bourne, History of the Public School Society of the City of New York 4–5, 12 (New York, William Wood & Co. 1870). ↑
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. See id. at 4–5 (describing how the New York legislature enacted a law incorporating the Free School Society with the requirement that it provide “for the Establishment of a Free School” and permitting the Society to receive up to ten thousand dollars per year); see also id. at 12 (describing changes to the Free School Society’s charter in 1808). ↑
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. See id. at 9 (describing how the private trustees of the Free School Society decided on an instructional approach for the society’s schools free of state intervention). ↑
-
. Id. at 8. ↑
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. Id. at 48–49. ↑
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. Id. at 49 (describing state school funds made available to the Catholic Benevolent Society and the Bethel Baptist Church). ↑
-
. Diane Ravitch, The Great School Wars, New York City, 1805–1973: A History of the Public Schools as Battlefield of Social Change 21 (1974). ↑
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. Id. at 21 (describing denial of funding request from Bethel Baptist Church); id. at 40 (describing denials of funding requested by the Scotch Presbyterian Church, a Hebrew congregation, and the Catholic Church). We show below how this history refutes any claim that only anti-Catholic bias could account for these funding denials. See infra Section II.D.2. ↑
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. Technically, such lawsuits would have been filed under the New York Constitution’s Free Exercise Clause because the First Amendment did not apply against the states until its incorporation through the Fourteenth Amendment. See N.Y. Const. of 1777, art. XXXVIII (“[T]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind.”). However, historical understandings of state free exercise clauses “provide the best evidence of the scope of the right embodied in the First Amendment.” Fulton v. City of Phila., 593 U.S. 522, 575 (2021) (Alito, J., concurring in judgment). ↑
-
. See infra Section II.B. ↑
-
. See infra Sections II.B, II.D.2 (discussing the anti-Catholic bias argument). ↑
-
. United States v. Rahimi, 602 U.S. 680, 739 (2024) (Barrett, J., concurring). In her recent book, Justice Barrett explains that her originalist approach entails asking whether a given constitutional provision “memorialize[d] a right already known to law?” Amy Coney Barrett, Listening to the Law: Reflections on the Court and Constitution 202 (2025). The historical evidence from New York and elsewhere, infra Section II.B, shows that the Free Exercise Clause did not memorialize a right to equal funding for religious charter schools because such a right was nowhere known to law despite ample opportunity for its assertion. ↑
-
. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 376 (2022) (Breyer, Sotomayor & Kagan, JJ., dissenting). ↑
-
. See infra Section III.A (describing this argument). ↑
-
. See Schragger et al., supra note 14, at 206–07. ↑
-
. See infra Part I. ↑
-
. See, e.g., Dobbs, 597 U.S. at 239 (“Historical inquiries of this nature are essential . . . [to] guard against the natural human tendency to confuse what that Amendment protects with our own ardent views.”). ↑
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. See id. at 272 (calling the “most important historical fact” in its history and tradition analysis the matter of “how the States regulated abortion when the Fourteenth Amendment was adopted”); N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 70 (2022) (concluding that “[a]part from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense”). ↑
-
. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 536 (2022) (Establishment Clause analysis must be “focused on original meaning and history”); Consumer Fin. Prot. Bureau v. Cmty. Fin. Servs. Ass’n of Am., 601 U.S. 416, 427 (2024) (“Pre-founding history supports the conclusion that an identified source and purpose are all that is required for a valid appropriation.”). ↑
-
. Vidal v. Elster, 602 U.S. 286, 301 (2024) (Lanham Act’s names clause “has deep roots in our legal tradition”); Samia v. United States, 599 U.S. 635, 644 (2023) (upholding admission of a codefendant’s confession with the defendant’s name redacted and accompanied by a limiting instruction because it was permitted “[f]or most of our nation’s history”). ↑
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. Of course, history and tradition has not been as salient in all constitutional cases: the Court’s presidential immunity and disqualification rulings are two prominent examples. See Trump v. United States, 603 U.S. 593 (2024) (relying on broad separation of powers principles to recognize three distinct zones of presidential immunity); Trump v. Anderson, 601 U.S. 100 (2024) (relying on federalism principles to reject a state court’s disqualification of a federal candidate for federal office under Section 3 of the Fourteenth Amendment). ↑
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. See, e.g., Reva B. Siegel, Commentary, How “History and Tradition” Perpetuates Inequality: Dobbs on Abortion’s Nineteenth-Century Criminalization, 60 Hous. L. Rev. 901 (2023) [hereinafter Siegel, History and Tradition Perpetuates Inequality]; Reva B. Siegel, The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation, 133 Yale L.J.F. 99 (2024). ↑
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. Randy E. Barnett & Lawrence B. Solum, Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 Nw. U. L. Rev. 433, 476–77 (2023) (describing Dobbs as “operating outside an originalist framework,” Bruen as an attempt to “identify the content of the preexisting legal ‘right to bear arms,’” and Kennedy as “harder to pigeonhole because its discussion of history and tradition is brief and cryptic”). ↑
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. See Marc O. DeGirolami, Traditionalism Rising, 24 J. Contemp. Legal Issues 9, 12, 14 (2023) (defining traditionalism as distinct from originalism and arguing that recent cases are indeed traditionalist in their reasoning); see also Sherif Girgis, Living Traditionalism, 98 N.Y.U. L. Rev. 1477 (2023) (analyzing the traditionalist turn in recent cases). ↑
-
. John W. Davis, The Argument of an Appeal, 3 J. App. Prac. & Process 745 (2001). ↑
-
. See supra note 21 and accompanying text. ↑
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. To our knowledge, just one other academic writing thus far has given substantial attention to Justice Barrett’s “original contours history” approach. See Sherif Girgis, Originalism’s Age of Ironies, 138 Harv. L. Rev. F. 1, 14–15 (2024). We agree with Professor Girgis’s persuasive account of why Barrett’s approach is sophisticated and important; we add our own gloss here to describe how it could be generalized as a framework applicable in future cases. ↑
-
. United States v. Rahimi, 602 U.S. 680 (2024). ↑
-
. Id. at 685–86. ↑
-
. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022). ↑
-
. See Rahimi, 602 U.S. at 752 (Thomas, J., dissenting). ↑
-
. Id. at 692, 698 (majority opinion). ↑
-
. Id. at 737–38 (Barrett, J., concurring). ↑
-
. Id. at 738. Note that Justice Barrett explicitly reserved the question whether, for purposes of deciding a Second Amendment claim brought against a state defendant, the key historical moment was in 1791, when the Second Amendment was ratified, or in 1868, when the Fourteenth Amendment was ratified and the Second Amendment was made applicable against the states. See Bruen, 597 U.S. at 82–83 (Barrett, J., concurring). That debate did not matter in Rahimi, where the federal government was the relevant actor, such that 1791 was indisputably the key historical moment. For purposes of the religious charter school free exercise claim, however, the debate between 1791 and 1868 would take on renewed significance because states would be the relevant actors who refuse public funding of religious charter schools. The evidence that follows, infra Part II, all comes from the period between 1791 and 1868, suggesting that it is likely significant evidence of the original contours of the free exercise right in any event. But we acknowledge that the evidence is stronger for one who believes 1868 is the more important historical reference point. ↑
-
. Rahimi, 602 U.S. at 738 (Barrett, J., concurring). ↑
-
. See id. at 738–39 n.* (identifying “original meaning” history as history that “controls” the outcome of cases). ↑
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. See id. at 738–39 (citing District of Columbia v. Heller, 554 U.S. 570, 582–92 (2008), as an example of “dispositive” original history where the Court considered whether the meaning of the phrase “bear Arms” encompassed an individual right to self-defense or was instead limited to military purposes). ↑
-
. Id. at 739. ↑
-
. Id. ↑
-
. Barrett, supra note 34, at 202. ↑
-
. Rahimi, 602 U.S. at 739 n.* (Barrett, J., concurring) (citing Keith E. Whittington, Originalism: A Critical Introduction, 82 Fordham L. Rev. 375, 383 (2013)). ↑
-
. Id. ↑
-
. See id. at 739. ↑
-
. Id. at 739–40 (internal quotation marks omitted). ↑
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. See id. at 739. ↑
-
. Id. at 740. ↑
-
. Id. at 737–38. For a thoughtful examination of how historical evidence might help reveal this original meaning, see Lawrence B. Solum, Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record, 2017 BYU L. Rev. 1621. ↑
-
. See Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 495–503 (2013) (showing how construction is “ubiquitous” and “ineliminable”). ↑
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. See Rahimi, 602 U.S. at 739 (Barrett, J., concurring). ↑
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. This is arguably true of one piece of the historical record in Bruen, where the Court noted that one state court had invalidated a 19th century regulation forbidding concealed carry. See N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 53 (2022) (citing Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822)). ↑
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. This is arguably the case with Dobbs v. Jackson Women’s Health Organization, to the extent that the majority claimed that “no one, as far as we are aware, argued that the laws [enacted by 19th century state legislatures to punish abortion] violated a fundamental right.” 597 U.S. 215, 253 (2022). But see Aaron Tang, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban, 75 Stan. L. Rev. 1091, 1118–19 (2023) (identifying antebellum public writings advocating a legal right to abortion). ↑
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. For a clear explanation of principle-based constitutional argumentation, see Mitchell N. Berman, Our Principled Constitution, 166 U. Pa. L. Rev. 1325 (2018). ↑
-
. Rahimi, 602 U.S. at 740 (Barrett, J., concurring). ↑
-
. See Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation 21 (2024) (“There is no single modality of ‘historical argument.’ Rather, arguments using all of the modalities may invoke history to support their claims.”). ↑
-
. Samia v. United States, 599 U.S. 635, 655–56 (2023) (Barrett, J., concurring in part). ↑
-
. Id. at 657. ↑
-
. Vidal v. Elster, 602 U.S. 286, 301 (2024). ↑
-
. Id. at 311 (Barrett, J., concurring in part). ↑
-
. Id. ↑
-
. See also Girgis, supra note 49, at 15 (arguing that Justice Barrett’s approach “would have judges develop tests” that are “pitched at a low level of generality dictated by original history or judicial-precedent analogues” when deciding “broadly worded texts like the First or Second Amendment”). ↑
-
. See, e.g., Amy Coney Barrett & John Copeland Nagle, Congressional Originalism, 19 U. Pa. J. Const. L. 1, 3 (2016) (“[T]he original public meaning of the Constitution is the law.”); see also Barrett, supra note 34, at 202 (“The goal in consulting historical sources is to determine how informed members of the public would have understood the provision at the time it became law.”). ↑
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. See United States v. Rahimi, 602 U.S. 680, 739 n.* (2024) (quoting Whittington, supra note 63, at 383). ↑
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. Randy E. Barnett, Interpretation and Construction, 34 Harv. J.L. & Pub. Pol’y 65, 69 (2011); see also Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 95, 108 (2010); Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning 5–9 (1999). ↑
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. For one account, see Solum, supra note 69. ↑
-
. For a thorough discussion of various competing approaches at this construction step, see Solum, supra note 70. ↑
-
. Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. 777 (2022). ↑
-
. Id. at 779. ↑
-
. See id. at 778, 787–88. ↑
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. Id. at 778–79. ↑
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. Id. at 778. ↑
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. Id. at 779. ↑
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. Id. at 780. ↑
-
. More specifically, we argue below that the theory’s ultimate appeal depends in large part on the ways in which its adherents utilize the judicial discretion afforded under its third step. See infra Section IV.B. ↑
-
. See Balkin, supra note 76, at 4, 15–55 (arguing that “history is useful for making many different kinds of constitutional arguments, and the way that people use history is shaped by the kind of argument they are making[]”). ↑
-
. See generally Carl F. Kaestle, Pillars of the Republic: Common Schools and American Society, 1780–1860 (Eric Foner ed., 1983). ↑
-
. Benjamin Rush, Thoughts Upon the Mode of Education Proper in a Republic, in Essays on Education in the Early Republic 9 (Frederick Rudolph ed., 1965). ↑
-
. See Ctr. on Educ. Pol’y, Public Schools and the Original Federal Land Grant Program 7, https://files.eric.ed.gov/fulltext/ED518388.pdf [https://perma.cc/VL95-ZUAB]. ↑
-
. Lawrence Arthur Cremin, The American Common School: An Historic Conception 126 (1951). Among the sources of antebellum funding, Cremin notes distribution to states of surplus federal revenues and Jorgenson the use of lotteries. See id.; Lloyd P. Jorgenson, The State and the Non-Public School, 1825–1925, at 16–19 (1987). For an account of state funding sources, see Fletcher Harper Swift, A History of Public Permanent Common School Funds in the United States, 1795–1905 (1911). ↑
-
. Swift, supra note 100, at 262. ↑
-
. Id. at 222–23; see also Matthew Gardner Kelly, Dividing the Public: School Finance and the Creation of Structural Inequality 34–35 (2023). ↑
-
. Carl F. Kaestle, The Evolution of an Urban School System: New York City, 1750–1850, at 65 (1973). ↑
-
. Id. at 64–65. ↑
-
. James Pyle Wickersham, A History of Education in Pennsylvania: Private and Public, Elementary and Higher, from the Time the Swedes Settled on the Delaware to the Present Day 317–18 (Lancaster, Pa., Inquirer Publ’g Co. 1885). ↑
-
. See infra Section III.B (providing examples of this discretion). ↑
-
. Kaestle, supra note 97, at 13–61; see J.M. Opal, Exciting Emulation: Academies and the Transformation of the Rural North, 1780s–1820s, 91 J. Am. Hist. 445, 450–51 (2004). ↑
-
. For instance, Pennsylvania’s 1789 constitution made specific provision for the education of the poor, ordering the legislature to “provide, by law, for the establishment of schools throughout the State, in such manner that the poor may be taught gratis.” Cremin, supra note 100, at 103; see also Michael B. Katz, Class, Bureaucracy, and Schools: The Illusion of Educational Change in America 3–55 (1971) (describing early American schooling approaches); Kaestle, supra note 97, at 30–61. ↑
-
. See, e.g., Jorgenson, supra note 100, at 5(“[T]he terminology of colonial and early national education made no provision for differentiating between the schools that much later came to be classified separately as ‘public’ or ‘private.’”). ↑
-
. For a discussion of the ambiguous distinction between public and private, see William J. Reese, Changing Conceptions of “Public” and “Private” in American Education History, in History, Education, and the Schools 95, 95–113 (2007). ↑
-
. See Nancy Beadie, Education and the Creation of Capital in the Early American Republic 118 (2014) (showing that in Lima, New York, between 1825 and 1845, common schools eligible to receive state and local funds never received more than thirty-five percent—and in some years as little as twenty-one percent—of their instructional costs from common funds; the rest came from private tuition payments); see also id. at 126 (finding that, over the same period, state funds for the Methodist academy ranged from providing between eight and forty percent of the academy’s instructional costs). ↑
-
. The reliance was more common in southern states, but it also persisted in places that are considered bastions of public education. New York abolished rate bills in 1867; Connecticut in 1868 and New Jersey in 1871. See Swift, supra note 100, at 300; Ellwood P. Cubberley, Public Education in the United States: A Study and Interpretation of American Educational History 147–54 (1919). ↑
-
. Wickersham, supra note 105, at 319–25. ↑
-
. Michael B. Katz, Reconstructing American Education 24 (1987). ↑
-
. See Stephen E. Sachs, Dobbs and the Originalists, 47 Harv. J.L. & Pub. Pol’y 539, 555–56 (2024) (noting that if a right is deeply rooted in history and tradition, “one might expect [these government infringements of that right] to have provoked serious constitutional objections in the states”). ↑
-
. See, for instance, Kaestle, supra note 97, at 13–61; Ravitch, supra note 29 at 3–78; Steven K. Green, The Bible, the School, and The Constitution: The Clash that Shaped Modern Church-State Doctrine 45–92 (2012). ↑
-
. Kaestle, supra note 103, at 41–60. ↑
-
. Id. at 68–71. ↑
-
. Bourne, supra note 23, at 5. In 1808, the Society petitioned the legislature for a new charter that extended its mission beyond a single school and changed its name to “The Free School Society of New York,” empowered to educate all the city’s poor children (not just those who did not have a religious affiliation). Id. at 12. In 1826, the Society would again petition the legislature for a name change to “The Public School Society,” in an effort to remove the stigma of “free school” being associated with schools for poor children. Id. at 101. ↑
-
. One contemporary writer indicated the school had more than 3,400 students in 1822. Thomas Boese, Public Education in the City of New York: Its History, Condition, and Statistics 102 (N.Y., Harper & Bros. Publishers 1869). ↑
-
. Id. at 101. ↑
-
. Id. at 100–01; Ravitch, supra note 29, at 21. ↑
-
. Green, supra note 116, at 48–49; Boese, supra note 120, at 101–103. ↑
-
. Green, supra note 116, at 49. ↑
-
. Id.; Boese, supra note 120, at 105. ↑
-
. Boese, supra note 120, at 106. These other providers included the Mechanics’ Society, the Orphan Asylum Society, and the trustees of the African Schools. Id. ↑
-
. See id. at 102–06. ↑
-
. Id. at 106. ↑
-
. Indeed, New York City’s 1813 law disbursed funding to multiple early analogs to charter schools—not just one. Under the 1813 law:
[T]he portion of the School Fund received by the city and county of New York shall be apportioned and paid to the trustees of the Free School Society, the trustees or treasurers of the Orphan Asylum Society, the Society of the Economical School, the African Free School, and of such incorporated religious societies in said city as supported or should establish charity schools who might apply for the same.
Id. at 100. ↑
-
. The closest evidence we have found to a public statement that might be read as insinuating the existence of a free exercise right to religious school funding in New York is an 1813 petition filed by the trustees of the Sheerith Israel Congregation to the New York legislature. See Israel Joel, Abraham Isaacs & Jonas N. Phillips, Items Relating to Congregation Shearith Israel, New York, 27 Publ’ns Am. Jewish Hist. Soc’y 1, 92–95 (1920) (citing Petition from the Trs. of the Congregation of Sheerith Israel Convened to the New York Legislature on Religion and the Free Schools (Jan. 10, 1813)). In that petition, the trustees sought to persuade state lawmakers to continue the practice of funding religious charity schools alongside the Free School Society. The failure to do so, the trustees argued, would be “not only impolitic but unjust, and at variance with the liberal genius and spirit of our constitution . . . which recognizes no distinction in religious worship.” Id. at 94–95.
Perhaps the trustees intended their mention of the “liberal genius and spirit of our constitution” to serve as an argument that the Free Exercise Clause compels equal funding. However, given the passing nature of the reference—and the fact that, to our knowledge, the trustees neither brought nor publicly discussed a free exercise lawsuit when funding was in fact denied in the ensuing years—the more likely inference is that the trustees noted the “liberal spirit” of the state constitution as a policy argument for the legislature to be more ecumenical in doling out funds to religious schools. See infra text accompanying notes 150–51 (describing a similar policy argument in New Jersey). And in any case, if a single, unexplained and unlitigated reference to the “liberal spirit of our constitution” is sufficient historical support to ground an asserted constitutional right, then the Court would need to revisit its rejection of many other rights that can lay claim to greater historical backing. See Tang, supra note 73, at 1118–19 (identifying evidence of 19th century abortion rights talk). ↑
-
. Green, supra note 116, at 63. ↑
-
. See supra note 119 and accompanying text (explaining how the Free School Society petitioned the state to change its name to the Public School Society in 1826). ↑
-
. Green, supra note 116, at 59. ↑
-
. Id. at 67. ↑
-
. David Murray, History of Education in New Jersey 152 (Washington, D.C., Gov’t Printing Off. 1899). ↑
-
. Id. at 37. ↑
-
. Id. ↑
-
. See Richard J. Gabel, Public Funds for Church and Private Schools 373 (1937); see also Thomas Woody, Quaker Education in the Colony and State of New Jersey 353 (1923) (noting that in 1831, a Quaker School in Easton began receiving public funds). ↑
-
. Lucius Q.C. Elmer, Digest of the Laws of New Jersey 502 (Bridgeton, N.J., James M. Newell 1838). ↑
-
. See infra notes 141–59. ↑
-
. Off. of the Superintendent of Pub. Schs., N.J. Dep’t of Pub. Instruction, Annual Report of the State Superintendent of Public Schools of New Jersey, for the Year 1847, at 23 (Trenton, N.J., Sherman & Harron 1848) [hereinafter Annual Report 1847]. ↑
-
. Id. at 24. ↑
-
. Id. ↑
-
. Off. of the Superintendent of Pub. Schs., N.J. Dep’t of Pub. Instruction, Annual Report of the State Superintendent of Public Schools of New Jersey, for the Year 1851, at 94 (Trenton, N.J., Morris R. Hamilton 1852) [hereinafter Annual Report 1851]. ↑
-
. Id. ↑
-
. Id. at 73. ↑
-
. Id. ↑
-
. Id. at 73–74. ↑
-
. Id. at 94. ↑
-
. Annual Report 1847, supra note 141, at 24. ↑
-
. Annual Report 1851, supra note 144, at 73–74. ↑
-
. Id. at 74. ↑
-
. Id. at 8. ↑
-
. Id. at 8–9. ↑
-
. Annual Report 1847, supra note 141, at 24–25; see also Annual Report 1851, supra note 141, at 9 (quoting the same lines). ↑
-
. Annual Report 1851, supra note 144, at 8. ↑
-
. Elmer, supra note 139, at 502. ↑
-
. Off. of the Superintendent of Pub. Schs., N.J. Dep’t of Pub. Instruction, Annual Report of the State Superintendent of Public Schools of New Jersey, for the Year 1864, at 31–32 (n.p. 1865). ↑
-
. Id. at 32. ↑
-
. See supra Section II.A. ↑
-
. See, e.g., Woody, supra note 138. Note the Annual Report from 1847 indicates that the average tuition costs per quarter for schools in New Jersey was $2.0675. See Annual Report 1847, supra note 141, at 42–43. ↑
-
. Those who are interested in glimpsing the scope of the many additional examples are encouraged to see Gabel, supra note 138. ↑
-
. See Off. of the Superintendent of Pub. Schs., Cal. Bd. of Educ., Annual Report of the Trustees of San Francisco 11 (S.F., Frank Eastman 1859); John Swett, History of the Public School System of California 21 (S.F., A.L. Bancroft & Co. 1876). It is important to note that these were not the only private schools in operation at the time. Though the exact number is hard to pin down, one source counts twenty-seven private schools in addition to the seven public schools in operation in 1854. See Frank Soule, John H. Gihon & James Nisbet, The Annals of San Francisco 685 (N.Y., D. Appleton & Co. 1855); see also Swett, supra note 163, at 13–14; The San Francisco Directory for the Year 1852–53, app. at 23 (S.F., James M. Parker 1852). ↑
-
. For an account of these events see Paul Goda, The Historical Background of California’s Constitutional Provisions Prohibiting Aid to Sectarian Schools, 46 Cal. Hist. Soc’y Q. 149 (1967). ↑
-
. See Kelly, supra note 102, at 34–36. ↑
-
. See Wickersham, supra note 105, at 317–18. ↑
-
. The Common School Laws of Pennsylvania, with Explanatory Instructions and Forms 6 (Harrisburg, Theodore Fenn & Co. 1851). ↑
-
. Wickersham, supra note 105, at 508; Gabel, supra note 138, at 380–81. ↑
-
. Ind. Const. of 1851 art. I, § 6, reprinted in 2 The Federal and State Constitutions: Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 1074 (Francis Newton Thorpe ed., 1909). ↑
-
. Indiana’s immigrant population was roughly six percent and only a small portion of those were Catholic. See Green, supra note 116, at 88. It is also relevant that the Blaine Amendments were creatures of the 1870s, some two decades after Indiana’s constitutional amendment. See Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 482 (2020). ↑
-
. Samuel Windsor Brown, The Secularization of American Education as Shown by State Legislation, State Constitutional Provisions and State Supreme Court Decisions 44 (1912) (quoting Act of Mar. 5, 1855, ch. LXXXVII, 1855 Ind. Gen. Laws 184). ↑
-
. Intriguingly, the 1855 law was later struck down by the state supreme court on the ground that it was a special local law in conflict with the state’s constitutional duty to establish a single system of common schools. See City of Lafayette v. Jenners, 10 Ind. 70 (1857) (relying on § 1, art. 8 of the state constitution). Equally important is that no challenger in the litigation advanced the claim that the 1855 law unconstitutionally discriminated against religious schools. ↑
-
. Francis Ryan, The First to Opt Out: Historical Snapshots of Catholic Schooling in America, 71 Educ. Horizons 53, 57–58 (1992) (describing how Catholic schools first received, but were then denied, public school funds in Lowell, Massachusetts, without any evidence of constitutional litigation). ↑
-
. Brown, supra note 171, at 94 (quoting Act of Jan. 16, 1854, No. 307, 1853–54 Ala. Sess. Laws, 191, § 2). ↑
-
. Id. at 95. ↑
-
. See United States v. Rahimi, 602 U.S. 680, 739 (2024) (Barrett, J., concurring). ↑
-
. Barrett, supra note 34, at 202. ↑
-
. The history casts doubt on Espinoza and Carson because those decisions recognized a free exercise right to equal funding for religious private schools despite such schools routinely being denied such funds in the antebellum period without any indication that the denials violated rights of free exercise. That said, Espinoza and Carson are arguably distinguishable to the extent they involve states granting public funds to individual parents, rather than to school organizations. Even then, the history could give rise to a broad regulatory principle permitting such funding denials at step three of the original contours history framework that would undermine both rulings. See supra Section I.A. ↑
-
. See supra Section I.A. ↑
-
. See supra note 70 and accompanying text. ↑
-
. See Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1430–36 (1990). ↑
-
. Id. at 1435. ↑
-
. See John Locke, A Letter Concerning Toleration, in 5 The Works of John Locke 5, 34 (London, G. & J. Rivington, 12th ed. 1824). ↑
-
. U.S. Const. amend. I; Off. of Legal Pol’y, U.S. Dep’t of Just., Religious Liberty Under the Free Exercise Clause 47 n.84 (1986); see also McConnell, supra note 181, at 1486 (discussing the 1986 Department of Justice report as “conclud[ing] that laws that discourage or inhibit religious exercise by denying government benefits (even those enacted in ‘purposeful discrimination’ against a religion) do not violate the free exercise clause”). ↑
-
. See, e.g., Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017) (holding that the denial of funds from a government benefit program—namely, a playground resurfacing program—violated the Free Exercise Clause no less than a law actually punishing or prohibiting some religious activity). ↑
-
. See McConnell, supra note 181, at 1486–88 (presenting evidence that, despite its textual plausibility, “the narrow interpretation of ‘prohibiting’ should . . . be rejected”). ↑
-
. See United States v. Rahimi, 602 U.S. 680, 739 (2024) (Barrett, J., concurring). ↑
-
. See supra note 73. ↑
-
. See Sachs, supra note 115, at 555–57 (arguing that the lack of “serious constitutional objections” to antebellum state abortion bans disproves the existence of such a right). ↑
-
. But see infra Section II.D.3 (responding to this counterargument). ↑
-
. As Justice Thomas pointed out in dissent, the historical source material for this broader principle was quite different in that founding-era actors responded to domestic violence not through disarmament laws, but rather the less onerous requirement of posting a surety payment. Rahimi, 602 U.S. at 751 (Thomas, J., dissenting). In comparison, the history of state and local governments refusing to fund religious private schools on equal terms with other, secular schools seems far closer to the modern practice under attack—states refusing to fund religious charter schools. ↑
-
. See Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 808 (2019) (“Ratified in 1868, the Fourteenth Amendment makes the First Amendment . . . applicable against the States.”). ↑
-
. See Permoli v. Mun. No. 1, 44 U.S. (3 How.) 589, 609 (1845) (“The Constitution makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws.”). ↑
-
. Transcript of Oral Argument at 28, Okla. Statewide Charter Sch. Bd. v. Drummond, 605 U.S. 165 (2025) (Nos. 24-394, 24-396) (“One reaction is most of those examples that were provided in those amicus briefs came from the early 1800s, and no one understood the Establishment Clause to be incorporated against the states at that point.”). As Justice Gorsuch quickly replied, however, his question was about the Free Exercise Clause, not the Establishment Clause. Id. ↑
-
. See, e.g., N.Y. Const. of 1777, art. XXXVIII (“[T]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind.”); N.J. Const. of 1776, art. XVIII (“[N]o person shall ever, within this Colony, be deprived of the inestimable privilege of worshipping Almighty God in a manner agreeable to the dictates of his own conscience . . . .”); Cal. Const. of 1849, art. I, § 4 (“The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state.”). ↑
-
. Transcript of Oral Argument at 29, Okla. Statewide Charter Sch. Bd. v. Drummond, 605 U.S. 165 (2025) (Nos. 24-394, 24-396) (“There were state equivalents to the Free Exercise Clause under a state constitution, and . . . even there, there . . . were no challenges.”). ↑
-
. Fulton v. City of Phila., 593 U.S. 522, 575 (2021) (Alito, J., concurring in judgment) (emphasis added). ↑
-
. McConnell, supra note 181, at 1456. ↑
-
. Id. ↑
-
. People v. Philips (N.Y. Ct. Gen. Sess. 1813), reprinted in 1 W.L.J. 109, 112–13 (1843); see also McConnell, supra note 181, at 1504 (recounting this episode). ↑
-
. McConnell, supra note 181, at 1415 (“[C]onstitutionally compelled exemptions were within the contemplation of the framers and ratifiers as a possible interpretation of the free exercise clause.”). But see Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872 (1990) (concluding that neutral laws of general application do not trigger heightened scrutiny under the Free Exercise Clause). ↑
-
. Espinoza v. Montana Dep’t of Revenue, 591 U.S. 464, 497–507 (2020) (Alito, J., concurring); see also Alan Brownstein, Protecting the Religious Liberty of Religious Institutions, 21. J. Contemp. Legal Issues 201, 223–32 (2013) (describing how anti-Catholic bigotry predated the founding). ↑
-
. See Ravitch, supra note 29, at 21. ↑
-
. Id. at 27. ↑
-
. Id. at 40. ↑
-
. See, e.g., id. at 43 (noting the Committee on Arts and Sciences and Schools “directed the Public School Society to remove immediately any books which might be offensive to Roman Catholics or to any other sect”). ↑
-
. Cf. Tang, supra note 73, at 1119–20 (showing that the infrequency of mid-1800s abortion rights talk should be discounted due to bigoted assumptions that women were not equal, rights-holding citizens to begin with). ↑
-
. E.g., People v. Philips, (N.Y. Ct. Gen. Sess. 1813), reprinted in 1 W.L.J. 109 (1843). ↑
-
. E.g., Permoli v. Mun. No. 1, 44 U.S. (3 How.) 589 (1845). ↑
-
. E.g., Ferriter v. Tyler, 48 Vt. 444 (1876) (upholding compulsory school attendance law against challenge brought by Catholic families). ↑
-
. E.g., Donahoe v. Richards, 38 Me. 379, 402–04 (1854) (rejecting state free exercise challenge brought by a Catholic family against the use of a particular Bible in school). ↑
-
. See Tang, supra note 73, at 1119–20. ↑
-
. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 254–55 (2022) (“Are we to believe that the hundreds of lawmakers whose votes were needed to enact these [abortion] laws were motivated by hostility to Catholics and women?”). ↑
-
. See supra Section II.B.1 (discussing the Free School Society’s private incorporation and charter); see also supra notes 24–25 and accompanying text (discussing the Society’s use of novel pedagogical techniques). ↑
-
. See supra note 27 and accompanying text. ↑
-
. See, e.g., McCreary Cnty. v. Am. C.L. Union of Ky., 545 U.S. 844, 875–76 (2005) (“[T]he government may not favor one religion over another, or religion over irreligion . . . under the Free Exercise Clause.”); see also Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 696 (1994) (“A proper respect for both the Free Exercise and the Establishment Clauses compels the State to . . . favor[] neither one religion over others nor religious adherents collectively over nonadherents.”). ↑
-
. The same is true with respect to the Pennsylvania and Indiana examples briefly discussed above, where school officials were given discretion to award public school funds to some religious societies but not others. See supra Section II.B.3. ↑
-
. See supra Section II.B.3. ↑
-
. See supra note 173 and accompanying text. ↑
-
. Even counsel who represented the religious private school that sought access to school voucher funds in Espinoza disclaimed this position. See Transcript of Oral Argument at 69, Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464 (2020) (No. 18-1195) (“We are not arguing that the state couldn’t just fund public schools.”). ↑
-
. As counsel for Espinoza put it during oral argument, “the public schools must be secular. This Court recognized that in Schempp.” Id. at 70 (citing Sch. Dist. v. Schempp, 374 U.S. 203, 205 (1963)). ↑
-
. See infra note 286 and accompanying text (discussing Schempp and Engel). ↑
-
. See James E. Wood, Jr., Religion and Public Education in Historic Perspective, 14 J. Church & State 397, 400–01 (1972) (describing the common practice of Bible reading and prayer recitation in the public schools under the banner of “nonsectarian” education). ↑
-
. See, e.g., Schempp, 374 U.S. at 274–75 (Brennan, J., concurring) (recounting this history). ↑
-
. See Wood, supra note 223, at 401 (noting how Catholics were “strongly opposed to the broadly Protestant influences on the tax-supported public school”). ↑
-
. See When Did Indoor Plumbing Become Common in Homes in the UK?, Plumbers Derby, https://www.plumbersderby.org.uk/when-did-indoor-plumbing-became-common-in-homes-uk/ [https://perma.cc/D2N6-WQP6] (“[T]he first indoor toilets were only common in the wealthy classes. Working class housing didn’t have indoor plumbing until the 1890s when separate building regulations were introduced in London.”). ↑
-
. N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 34 (2022); Kevin Sweeney, An Eighteenth-Century Gun Culture Shaped by Constraints, Duke Ctr. for Firearms L. (Sept. 6, 2023), https://firearmslaw.duke.edu/2023/09/an-eighteenth-century-gun-culture-shaped-by-constraints [https: //perma.cc/79GE-AEBA]. ↑
-
. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 243 (2022) (“Two treatises by Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a ‘great crime’ and a ‘great misprision.’” (citing Pleas of the Crown 53 (P. Glazebrook ed., 1972) (1678); 1 Matthew Hale, History of the Pleas of the Crown 433 (London, E. & R. Nutt 1736))). ↑
-
. See Ken Armstrong, Draft Overturning Roe v. Wade Quotes Infamous Witch Trial Judge with Long-Discredited Ideas on Rape, ProPublica (May 6, 2022, 1:50 PM), https://www.propublica. org/article/abortion-roe-wade-alito-scotus-hale [https://perma.cc/UV55-W6QC]. ↑
-
. See, e.g., Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 535–36 (2022); Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 480–82 (2020). ↑
-
. For thoughtful discussions and critiques, see, for example, Siegel, History and Tradition Perpetuates Inequality, supra note 44; Barnett & Solum, supra note 45; DeGirolami, supra note 46; Joseph Blocher & Brandon L. Garrett, Originalism and Historical Fact-Finding, 112 Geo. L.J. 699 (2024); Dov Fox & Mary Ziegler, The Lost History of “History and Tradition,” 98 S. Cal. L. Rev. 1 (2024); Mary Ziegler, The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition, 133 Yale L.J.F. 161 (2024). ↑
-
. See Petition for Writ of Certiorari at 14, St. Isidore of Seville Cath. Virtual Sch. v. Drummond, 145 S. Ct. 1916 (2025) (No. 24-396) [hereinafter St. Isidore Cert. Petition] (“Procedural History”); id. at viii (referring to a charter school board transcript record in the appendix that was kept by a Oklahoma history center). ↑
-
. See St. Isidore Cert. Petition, supra note 232. ↑
-
. Petition for Writ of Certiorari, United States v. Rahimi, 602 U.S. 680 (2024) (No. 22-915). ↑
-
. See Brief for Petitioner St. Isidore of Seville Catholic Virtual School at 50–52, Okla. Statewide Charter Sch. Bd. v. Drummond, 605 U.S. 165 (2025) (Nos. 24-396, 24-394). ↑
-
. Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 467 (2017). ↑
-
. Id. at 458, 462. ↑
-
. Carson v. Makin, 596 U.S. 767 (2022); Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464 (2020). ↑
-
. Carson, 596 U.S. at 788–89; Espinoza, 591 U.S. at 488–89. ↑
-
. Carson, 596 U.S. at 785 (quoting Espinoza, 591 U.S. at 487). ↑
-
. Id. ↑
-
. See Okla. Stat. tit. 70, § 3-132.2(D)(5) (West 2025); see also Garnett, supra note 14, at 11 (recognizing that charter schools are “universally designated by law to be ‘public schools’”). ↑
-
. Garnett, supra note 14, at 13. ↑
-
. Nicole Stelle Garnett, Oklahoma’s Approval of America’s First-Ever Religious Charter School Is Cause for Celebration, Educ. Next (June 7, 2023), https://www.educationnext.org/oklahom as-approval-of-americas-first-ever-religious-charter-school-is-cause-for-celebration/ [https://perma.cc/ WTM8-KQRK]. ↑
-
. Garnett, supra note 14, at 13. ↑
-
. See Respondents’ Brief in Response to Petitioner’s Application and Petition at 11, Drummond ex rel. State v. Okla. Statewide Virtual Charter Sch. Bd., 558 P.3d 1 (Okla. 2024) (No. 121694) (arguing that St. Isidore is a “private school protected by the First Amendment,” not a “state actor,” such that Carson precludes the state from “reject[ing] St. Isidore because of its religious character”). ↑
-
. See Brief in Opposition at 20, Okla. Statewide Charter Sch. Bd. v. Drummond, 605 U.S. 165 (2025) (Nos. 24-396, 24-394) (arguing that an Oklahoma charter school “is a state actor”); Lupu & Tuttle, supra note 14, at 1790 n.145 (“[W]e think that charter schools qualify as public schools as well as state actors.”); Preston C. Green III & Suzanne E. Eckes, All Aboard!: Making Charter School Boards All-Purpose State Actors Under the Supreme Court’s Amtrak Case, 71 Drake L. Rev. 561, 564 (2024) (arguing that religious charter schools may be entitled to equal funding “[i]f they are not state actors”). ↑
-
. Drummond ex rel. State v. Okla. Statewide Virtual Charter Sch. Bd., 558 P.3d 1, 13–14 (Okla. 2024), cert. granted, 650 U.S. 165 (2025). ↑
-
. Evans v. Newton, 382 U.S. 296, 299 (1966); see also Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 378 (1995) (state action cases are far from “a model of consistency”); Reitman v. Mulkey, 387 U.S. 369, 393 (1967) (Harlan, J., dissenting) (describing state action doctrine as based on “a slippery and unfortunate criterion”); Vikram David Amar, The NCAA as Regulator, Litigant, and State Actor, 52 B.C. L. Rev. 415, 416 (2011) (it would be “fair to call the area a mess”). ↑
-
. Maybe, as Garnett forcefully argues, the most important fact is that “[m]ost charter schools are privately operated and controlled by private (nonprofit and for-profit) corporate boards,” an indicator of a non-state actor. Nicole Stelle Garnett, Manhattan Inst., Religious Charter Schools: Legally Permissible? Constitutionally Required? (2020), https://manhattan.institute/article/ religious-charter-schools-legally-permissible-constitutionally-required [https://perma.cc/6F7G-L2VY]. Or maybe the Oklahoma Supreme Court has the better argument that public education is traditionally a government function, that charter schools are denominated as public schools under state law, and that charter schools are creatures of state law. Drummond, 558 P.3d at 11–13. ↑
-
. See Mitchell N. Berman, Religious Liberty and the Constitution: Of Rules and Principles, Fixity and Change, 26 U. Pa. J. Const. L. 851, 922 (2024) (recognizing that the Establishment Clause issue “raises two questions, not one,” and that the second question concerning the state’s act of funding a religious charter school is actually the difficult—and important—one). We do note, however, that the historical evidence amassed above, supra Section II.B, supports the position that a state’s voluntary decision to fund a religious charter school today might not run afoul of the Establishment Clause. ↑
-
. See Tang, supra note 10, at 522; Libby Stanford & Mark Lieberman, Education Savings Accounts, Explained, Educ. Week (Mar. 27, 2023), https://www.edweek.org/policy-politics/education-savings-accounts-explained/2023/03 [https://perma.cc/5C8J-ZWL2]; Petitioner’s Application to Assume Original Jurisdiction and Petition for Writ of Mandamus and Declaratory Judgment at 15, Drummond ex rel. State v. Okla. Statewide Virtual Charter Sch. Bd., 558 P.3d 1 (Okla. 2024) (No. 121694) [hereinafter Petitioner Mandamus Brief] (arguing that “[t]here are already numerous public funds St. Isidore is eligible to receive–directly or indirectly–as a Catholic private school” and citing a state voucher program and a tuition tax credit program, Okla. Stat. tit. 70, §§ 13-101.2 and 28-100–28-103 (West 2025)). ↑
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. See Petitioner Mandamus Brief, supra note 252. Indeed, there would be advantages to this approach, since religious private schools face fewer regulatory requirements than do charter schools. See Kathleen Porter-Magee, 3 Reasons Why Religious Charter Schools Should Give Us Pause, Thomas B. Fordham Inst. (May 11, 2023), https://fordhaminstitute.org/national/commentary/3-reasons-why-religious-charter-schools-should-give-us-pause [https://perma.cc/9JAU-U7UB] (arguing that “in order for religious schools to access [charter school] funding, we would be knowingly giving up autonomy in exchange for what would likely be excessive government bureaucracy and regulation”). ↑
-
. See infra Section IV.A. ↑
-
. Nuria Martinez-Keel, Oklahoma Supreme Court Hears Catholic Charter School Case, Norman Transcript (Apr. 2, 2024), https://www.normantranscript.com/news/oklahoma-supreme-court-hears-catholic-charter-school-case/article_5c8fe0c4-f13c-11ee-be28-1b397cf5e4aa.html [https:// perma.cc/YBX4-WJWV]. ↑
-
. See supra notes 10–12 and accompanying text; infra Section IV.A. ↑
-
. To our mind, if the Court really were inclined to decide the religious charter free exercise question based on modern principles and precedent, the better approach would be the one identified by Professor Justin Driver in Three Hail Marys: Carson, Kennedy, and the Fractured Détente Over Religion and Education, 136 Harv. L. Rev. 208 (2022). Driver suggests that the question whether the free exercise right to equal funding should be extended to religious charter schools depends on how charter schools fare along a series of factors that Chief Justice Roberts identified for distinguishing between public and private schools in his opinion for the Court in Carson itself. Id. at 230–31. Thus, Driver notes that “[i]n perhaps the most crucial passage of Chief Justice Roberts’s opinion for the Court, he identified ‘numerous and important’ . . . ‘differences between private schools eligible to receive tuition assistance under Maine’s program and a Maine public school.’” Id. (quoting Carson v. Makin, 596 U.S. 767, 783 (2022)). Those factors include (1) whether a school is required to “accept all students”; (2) whether a school is permitted to charge tuition; (3) whether the school has discretion to set its own curriculum; and (4) whether the school must hire state-certified teachers. Charter schools resemble public schools on the first two factors, but may be more like private schools on the last two. Id. at 231. Professor Mitchell N. Berman articulates another thoughtful and carefully developed first-principles argument against the free exercise case for religious charter schools. Berman, supra note 251. ↑
-
. U.S. Const. amend. I. ↑
-
. See Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 811 (2019) (distinguishing between a First Amendment merits argument and “the threshold state-action question”). ↑
-
. See, e.g., id. at 816 (“We simply conclude that [petitioner], as a private actor, is not subject to First Amendment constraints.”). ↑
-
. Carson, 596 U.S. at 779–80 (2022) (quoting Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 487 (2020)) (emphasis added). ↑
-
. See Garnett, supra note 250, at 9 nn.20, 21 & 24 (arguing that religious charter schools’ free exercise claim should be determined based on state action rulings such as Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995) (Amtrak is a state actor); Blum v. Yaretsky, 457 U.S. 991, 1004–05 (1982) (nursing home not a state actor); and Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974) (utility company not a state actor)). ↑
-
. Locke v. Davey, 540 U.S. 712, 725 (2004). ↑
-
. Id. at 717 (“Northwest [College] is a private, Christian college.”). ↑
-
. Carson, 596 U.S. at 788. ↑
-
. See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 374 (2022) (Breyer, Sotomayor & Kagan, JJ., dissenting) (arguing that “the Framers defined rights in general terms, to permit future evolution in their scope and meaning”); id. at 377 (situating the right to abortion within the broader “principle” that “the Constitution places limits on a State’s power to assert control over an individual’s body and most personal decisionmaking”). ↑
-
. Id. at 376. ↑
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. See id. (“The specific practices of States at the time of the adoption of the Fourteenth Amendment . . . do not mark the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.” (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 848 (1992))). ↑
-
. See supra Section III.A. ↑
-
. See supra Section III.A. ↑
-
. See supra Section II.B. ↑
-
. As we note above, the impact of an Establishment Clause ruling in favor of religious charter schools—i.e., that they are not state actors such that a state may (but need not) fund religious charter schools—would have minimal consequences for K–12 education. See supra notes 252–53 and accompanying text. ↑
-
. Nat’l Ctr. for Educ. Stat., Public Charter School Enrollment, in The Condition of Education 2020, at 24 (2020), https://nces.ed.gov/pubs2020/2020144.pdf [https://perma.cc/LE7P-2UME]. ↑
-
. Fast Facts: Charter Schools, supra note 10. ↑
-
. See supra note 11. ↑
-
. Iceland GDP, Countryeconomy.com, https://countryeconomy.com/gdp/iceland?year= 2018 [https://perma.cc/CC9K-MVFJ]. ↑
-
. Ctr. for Rsch. on Educ. Outcomes, Multiple Choice: Charter School Performance in 16 States 6 (2009). ↑
-
. Id. at 1–2. ↑
-
. Ctr. for Rsch. on Educ. Outcomes, National Charter School Study: Executive Summary 16 (2013) (finding that “the average charter school student now gains an additional 8 days of learning each year in reading, compared to the loss of 7 days each year reported in 2009” and that “[i]n math, charter students in 2009 posted 22 fewer days of learning; now that gap is closed so their learning each year is on par with their peers in traditional public schools”). ↑
-
. Raymond et al., supra note 13, at 5. ↑
-
. Id. at 6. ↑
-
. Id. at 9. For math, twenty-five percent of charter schools perform worse than traditional public schools and thirty-nine percent perform roughly the same. Id. ↑
-
. Libby Stanford, Charter Schools Find Quiet Support in a World Focused on Private School Choice, Educ. Week (Aug. 21, 2023), https://www.edweek.org/policy-politics/charter-schools-find-quiet-support-in-a-world-focused-on-private-school-choice/2023/08 [https://perma.cc/639L-3NS2]. ↑
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. Id. ↑
-
. As noted, these progressive states generally do not have voucher programs, which means none of them have opened up state funds to religious private schools at all, even after decisions like Carson v. Makin, 596 U.S. 767 (2022), and Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020). See supra note 10 and accompanying text. ↑
-
. Sch. Dist. v. Schempp, 374 U.S. 203, 205 (1963) (holding that a public school’s practice of beginning each day with a Bible reading violated the Establishment Clause); Engel v. Vitale, 370 U.S. 421, 422–24 (1962) (holding the same for school prayer in public schools); see also Schragger et al., supra note 14, at 229–35 (describing the increasing secularization of public schools in the years before Engel and Schempp); John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 319 (2001) (noting that “in advance of [Schempp and Engel] . . . . [i]n most places, public education had already become largely secular, and Protestants generally were comfortable with this transformation”). See generally Sarah Barringer Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern America (2010) (discussing these developments). ↑
-
. Porter-Magee, supra note 253. ↑
-
. Espinoza, 591 U.S. at 473–89; Carson, 596 U.S. at 778–89 . ↑
-
. See, e.g., Kate Redburn, The Law and Political Economy of Religious Freedom, LPE Project (Sept. 8, 2022), https://lpeproject.org/blog/the-law-and-political-economy-of-religious-free dom/ [https://perma.cc/WC5S-GHEC]; Michelle Boorstein, Under Right-Leaning Supreme Court, the Church-State Wall Is Crumbling, Wash. Post (July 17, 2022), https://www.washingtonpost.com/ religion/2022/07/17/supreme-court-church-state-religion-coach/ [https://perma.cc/8ZS4-33V6]; Mark Joseph Stern, The Supreme Court Just Forced Maine to Fund Religious Education. It Won’t Stop There., Slate (June 21, 2022, 2:04 PM), https://slate.com/news-and-politics/2022/06/carson-makin-supreme-court-maine-religious-education.html [https://perma.cc/4V5L-JD2A]. ↑
-
. See Tang, supra note 10. ↑
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. See supra notes 283–84 and accompanying text. ↑
-
. See generally Erica L. Green & Eliza Shapiro, Minority Voters Chafe as Democratic Candidates Abandon Charter Schools, N.Y. Times (Nov. 27, 2019), https://www.nytimes.com/2019/ 11/26/nyregion/charter-schools-democrats.html [https://perma.cc/7D8E-U5HT]. ↑
-
. See supra notes 280–82 and accompanying text. ↑
-
. See Porter-Magee, supra note 253 ( “[I]f the Court ultimately rules that states that fund secular charters must fund religious charters, then instead of opening a path to funding for religious schools, blue states are more likely to put a moratorium on . . . charters.”). ↑
-
. See supra note 12 and accompanying text (showing how in California alone, a ruling for religious charter schools could send hundreds of millions of taxpayer dollars to religious schools). ↑
-
. See supra Section I.A. ↑
-
. United States v. Rahimi, 602 U.S. 680, 739–40 (2024) (Barrett, J., concurring). ↑
-
. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 253 (2022) (“When legislatures began to exercise that authority [to ban abortion] as the century wore on, no one, as far as we are aware, argued that the laws they enacted violated a fundamental right.”). ↑
-
. See supra notes 208–11 and accompanying text. ↑
-
. Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. & Pub. Pol’y 817, 818 (2015). ↑
-
. See Tang, supra note 73, at 1119–20. ↑
-
. Samia v. United States, 599 U.S. 635, 657 (2023) (Barrett, J., concurring in part). ↑
-
. See supra notes 78–82 and accompanying text; see also Berman, supra note 74 (providing one account of constitutional pluralism); Philip Bobbitt, Constitutional Interpretation 12–13 (1991) (same); Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189 (1987) (same); Jack M. Balkin, Arguing About the Constitution: The Topics in Constitutional Interpretation, 33 Const. Comment. 145, 181–85 (2018) (same). ↑
-
. See Dan M. Kahan, The Supreme Court, 2010 Term — Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, 125 Harv. L. Rev. 1 (2011). ↑
-
. See supra notes 38–39. ↑
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. See Megan Brenan, Approval of U.S. Supreme Court Stalled Near Historical Low, Gallup (July 30, 2024), https://news.gallup.com/poll/647834/approval-supreme-court-stalled-near-historical-low.aspx [https://perma.cc/B5R7-BEZD]. ↑
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. See Jeffrey M. Jones, Party Divisions in Views of Supreme Court Keep Ratings Low, Gallup (Oct. 3, 2024), https://news.gallup.com/poll/651527/party-divisions-views-supreme-court-keep-ratings-low.aspx [https://perma.cc/3HNA-ZS3Q] (noting that record-low public trust in the Court is attributable to record-high gaps in confidence reported across political party affiliation). ↑
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. See supra notes 40–43. ↑
-
. For an argument in favor of this position, see Balkin, supra note 76, at 169–76. ↑
-
. Cf. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 253 (2022). ↑
-
. See United States v. Skrmetti, 605 U.S. 495 (2025). ↑
-
. See Transcript of Oral Argument at 64, United States v. Skrmetti, 605 U.S. 495 (2025) (No. 23-477) (Justice Barrett asking whether “the resolution of this case has no impact on the parental rights claim that the Sixth Circuit also addressed”). ↑
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. See Brief of William Eskridge Jr. & Steven Calabresi et al. as Amici Curiae in Support of Petitioner at 10–14, United States v. Skrmetti, 605 U.S. 495 (2025) (No. 23-477) [hereinafter Eskridge & Calabresi Brief] (making historical case that the “Fourteenth Amendment’s Due Process Clause carried with it the common law understanding of family integrity”). ↑
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. Cf. Tingley v. Ferguson, 47 F.4th 1055 (9th Cir. 2022) (rejecting a First Amendment challenge to gay conversion therapy bans, but not deciding the substantive due process issue). ↑
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. More specifically, our sense is that the historical evidence of parental medical decision-making in the 18th and 19th centuries may be less analogous to the modern-day disputes over gender affirming care and conversion therapy laws than is the analogy in the religious charter school context. See, e.g., Eskridge & Calabresi Brief, supra note 313, at 10–14 (analogizing disputes over parental decision-making in the gender affirming care context to the historical episode of a 1721 smallpox epidemic in Boston). This suggests that any effort to resolve the constitutionality of these laws is less likely to occur at step two of the original history framework and more likely to turn on other modes of argument—such as broader regulatory principles or ahistorical, judge made precedent. See supra Section I.A. ↑
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. See, e.g., case cited supra note 39 and accompanying text. ↑
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. See Brenan, supra note 306. ↑