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- [00:01]
John Brucato
You're listening to ASBO International's School Business Insider. I'm your host, John Brucato. Each week on School Business Insider, I sit down with school business officials and industry experts from around the world to share their stories and explore the topics that matter most to you. Find out what it means to be a school business official and get your insider pass on all things school business. Hello everyone, and welcome back to School Business Insider. In today's episode, we're exploring a pivotal legal case that could redefine the boundaries between public education funding and religious institutions. Joining me today is Dr. Charles J. Russo, a distinguished member of the ASBO Education Webinar Task Force. Joseph Pander, Chair of Education, Co director of the PhD program in educational Leadership and Research, professor of Law at the University of Dayton. Dr. Russo is also a visiting professor at Notre Dame University in Australia. We'll delve into the U.S. supreme Court case concerning St. Isidore of Sayville Catholic Virtual Charter School in Oklahoma. This case raises critical questions. Can a state fund a religious charter school? Does this blur the lines between church and state? What are the implications for public schools funding the principle of religious freedom? Dr. Russo's recent article in School Business now provides an in depth analysis of these issues and today will unpack the legal arguments, potential outcomes, and what this means for school business officials across the country. Dr. Russo, welcome to the podcast. I'm so happy to have you, John.
- [01:40]
Dr. Charles J. Russo
Thanks for having me. And again, my mother used to say, could call me anything you want, just don't call me late for dinner. So I'm happy to go by Charlie.
- [01:46]
John Brucato
All right, Charlie. We'll use that moving forward.
- [01:49]
Dr. Charles J. Russo
As you noted, I'm at the University of Dayton now. This is my 28th year here. Wow. But just for real quickly, I grew up in a small town you might have heard of called Brooklyn, New York.
- [01:58]
John Brucato
Yeah.
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Dr. Charles J. Russo
Yeah.
- [01:59]
John Brucato
Just a little blip on the map. Yeah.
- [02:00]
Dr. Charles J. Russo
My wife always wanted to be home to raise our kids. And so when we had the opportunity, we moved to the University of Kentucky for a couple years and I was recruited here. But while I was in Kentucky, right at the end of my time, I guess it was, I was introduced to ASBO and I first wrote for School Business affairs in 1994. I just checked it out since that time, to be exact, I wrote 257 columns for School Business Affairs.
- [02:25]
John Brucato
Wow.
- [02:25]
Dr. Charles J. Russo
And I have five and I think already out in School Business now with a couple more lined up.
- [02:30]
John Brucato
So your household name Charlie, you know.
- [02:33]
Dr. Charles J. Russo
That and five bucks I'll buy a cup of coffee or 750, I guess. But I've been real happy to be working with asbo, a great group of individuals who really care about kids and getting things done. And I'm happy to have the opportunity to raise some issues about legal matters that impact what's going on in schools, because they're all very near and dear to my heart. So, with that said, thanks for the introduction. I look forward to chatting with you.
- [02:55]
John Brucato
Wonderful. Well, I appreciate you giving us a little context, and it's really impressive writing so many articles for ASBO International, and I'm sure they're very appreciative of your contribution. So, you know, as I said in the introduction, we have very much a pivotal case, something that's pretty unique, I would say, in terms of how it could affect public education. So can you walk us through the background of the Saint Isidore Catholic virtual charter school case in Oklahoma, and how has it become such a national legal flashpoint?
- [03:24]
Dr. Charles J. Russo
Interestingly, Oklahoma does not have a very large Catholic population. I've been meaning to look it up, but honestly I didn't, which is bad on me. But in 1960. Sorry, in 2023, a couple of years ago, in June of 2023, the state's virtual Charter School board approved the creation of Saint Isidore. This can operate under the auspices of two Roman Catholic dioceses, the diocese and the archdiocese, designed to provide education, a Catholic education for kids who live in rural parts of Oklahoma. That being noted, I have visited a lot of states. I've been to Oklahoma once I spoke at Norman. So I don't know much about it, but my sense is it is pretty rural. So getting kids to Catholic schools in a rural location is a bit of a challenge. So supporters of a Catholic education, of which I am one, I'm a product of Catholic education, put together this proposal. And interestingly, the state attorney general at the time was a big supporter, but his successor came in files through challenging it. And to make a long story short, because, you know, we'll cover it again later, the state Supreme Court invalidated its creation on the basis that it violates not only state statutes and the Oklahoma Constitution, but also the establishment clause of the United States Constitution. So, that being said, let me stop there and see if that answers your question. But it's been going on for a couple of years now, and the Supreme Court should rule probably sometime late June, maybe the first couple days of July.
- [04:57]
John Brucato
Well, you know, you said a virtual school. I mean, is that something that's typical in the state of Oklahoma? Do they have virtual schools? Is there state education department sanction those kinds of institutions?
- [05:09]
Dr. Charles J. Russo
Good question. To the best of my knowledge, no. But virtual schools are growing in many, many places. I had seen an article recently, for example, being from New York, I still know more about what's happening in New York on any given day than in Ohio. New York now does not close for bad weather, for snow days, what have you. Everything goes on online. So virtual schools becoming away with the future. Here at the university, for example, I teach in person in the law school, but in the school of education, all of our graduate programs are entirely online. So while it may seem a bit unusual for a school to go virtual, it is kind of the wave of the future. And I don't think it's all that unusual. It's just that if families of a particular religious background here, Roman Catholic, want the kids to go to a Catholic school, they're just not going to have the option locally. So virtual is the next best thing to being there, I guess.
- [05:59]
John Brucato
Right, right. I mean, I'm in New York myself, a New York native originally, and you know, I think the virtual component is, I guess who you're asking is either a casualty or a benefit of the pandemic. I think the proof of concept was there. And so now because of the inclement conditions, we don't necessarily have to go and shut everything down. We can continue virtually. Kind of a point of contention, I would say in New York some school districts really lean into that and some others just don't see the benefit in doing virtual. Give the kids a day off. So that's a whole nother conversation.
- [06:32]
Dr. Charles J. Russo
Oh sure. And I will say I, I had mixed emotions when I started teaching online. It works pretty well for graduate school and I've worked hard to be able to interact with people and keep things going. But I've seen reports and again, I'm kind of a one trick pony. All I write about is law. Yeah, I'm a sports fan. But I tell you what, I followed the Supreme Court almost as closely or more closely than they do the Yankees. That being said, I've read an awful lot of things how kids really suffer developmentally being virtual. You know, they don't get to interact with people personally. Kids spend so much time on the machine that I'm not sure it's a real good thing for the future. I'm afraid we lose a great deal of the humanity and I'm just one voice. But I like to say that education is a people business. It's not distance, you Gotta be there to interact and get the sense of it.
- [07:21]
John Brucato
Well, the thing when we went virtual, it wasn't that we lacked communication, it's we lacked communion. And I think that really is the essence. Essence of kind of what it is to be human. Right. Is to physically get together so you're still able to transfer and transmit all of that information, but you're missing that piece of communion when you get together with one another.
- [07:41]
Dr. Charles J. Russo
Oh great. On top of, from what I hear from my students, kids can very easily minimize the screen and kind of tune out. I had a class last semester and it frustrated the pants off of me. I had one person in the class. I marked them down on class participation. He never turned the camera on. I like to think he was listening and paying attention. He got his assignments in on time, but I don't know whether he was there. I never really had any live interaction with him. And with kids, I wonder how much that happens. I'm afraid that it happens a fair amount. Our three granddaughters thankfully live only about a mile away and they were over a lot. And the oldest, going on 10, is on the computer a lot. And when she comes over, my wife, who's a former preschool teacher often reminds you, you know, facetime now. No, no, no, more virtual. Be here as a person. So while there are some benefits to getting schooling at the places where it might not have been, I'm, I'm still in the position that the jury's out on its long term effectiveness.
- [08:41]
John Brucato
Yeah, I agree. It's your, is your instruction, is your, your online classes, are they synchronous instruction?
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Dr. Charles J. Russo
No, this is synchronous, it's live. We go on. Well, there's two parts they could probably sell. The videotapes I make of instruction as a sleep aid. We ask them to watch 90 minutes of video and then I come on and I largely reiterate it, not because people are not bright, but I teach law and I like to think I'm pretty good about cutting out of a lot of the real technical language of the law. But still, for educators who are taking one or maybe two law courses in their life, it's a bit of a learning curve. So I try to do everything I can to make it as easy as possible for them to get the language. So we meet live 90 minutes. I have class tonight from 6 to 7:30 and then tomorrow night I have a two credit course that meets for an hour.
- [09:33]
John Brucato
That's good. Yeah. I'm an adjunct professor for a university in New York and our program is set up such that it's primarily asynchronous. So it really, it's that to me is challenging. And talk about kind of really losing that tangible benefit of being in person. But I try to schedule synchronous sessions so long as everybody can join. I want it to be as equitable as possible. But it is challenging to just instruct via message board and.
- [09:57]
Dr. Charles J. Russo
Oh, absolutely. We had been asynchronous. We had our own system here. And I like to tell people it's kind of like getting rice crackers. You're not going to starve to death, but I don't know how much nourishment you get. I just wonder about just sending emails back and forth, how effective that really is in the long run.
- [10:13]
John Brucato
Yeah, yeah, you lose that human touch. But we digress. So let me get back to the matter at hand here.
- [10:19]
Dr. Charles J. Russo
I'll follow your lead.
- [10:21]
John Brucato
So in your article you say that like pigs with wings, these schools look good on paper. But can you elaborate on why this metaphor really captures the legal and practical tension that you so articulated in your article about faith based charter schools?
- [10:34]
Dr. Charles J. Russo
Sure. Thanks. One of the things I learned a long time ago, when you're going to give a talk, when you're going to want to publish an article, you want to try to get a kind of catchy title. And we're only about an hour north of Cincinnati Delta, who's our carrier, used to fly to Cincinnati. Then you connect from there. They've got this big deal with the pig, the plying pig in Cincinnati. So I always like that kind of metaphor and I used the title just to kind of try to grab people a little bit. I think the idea of an online faith based charter school has some merit. But and as I think one of your later questions, even as somebody who's a strong supporter, and I'm in the minority in higher ed on this one, even as somebody who's a strong supporter of the so called child benefit test to accommodate the needs of faith based schools, I'm concerned that this one is a bit of a bridge too far. At the risk of throwing another title in there, I understand providing the aid, but here they're going to pay for the salaries, they're going to pay for the books, they're going to pay for the, the online network and they still want to call it a public school. That raises some real serious questions that I think we'll talk about a little bit later. I don't want to answer everything in one question, but I say on paper it sounds like A good idea. But as you scratch just below the surface, as I suggested, there are these legal issues that come up that I think are going to create all kinds of havoc.
- [11:59]
John Brucato
So is the concept of a Catholic charter school the anomaly, or is it. Or the. Is the virtual piece the anomaly? Because in my experience it's either you have your, you have your parochial Catholic schools and then you have your charter schools, none of which are intermingled. But this is kind of. You're looping in three things. You have a charter school, a Catholic school, and virtual. So is the concept the Catholic charter school? What is the novelty here?
- [12:27]
Dr. Charles J. Russo
I think just that, that it's a Catholic charter school. Charter schools, as I'm sure you know and most of asbo's listeners are familiar with, charter schools, began in the United States in Minnesota in 1991. I had spoken in Edmonton, Alberta, Canada for the Canadian Education Law Conference, the first time that year, as a matter of fact, and I attend that conference almost every year. But charter schools actually began in Canada, kind of migrated south. And the idea of charter schools is that they're really largely patterned at the Roman Catholic schools. That is to say, to use some language of educational theory, which I don't really teach anymore, my doctorate's administrative and instructional leadership. But it's a loosely coupled system. If you think of an organizational flowchart, you could have direct lines or you could have dotted lines. In most organizations you have a direct line from the president to the operating director to the assistant and so on. But Catholic schools are very loosely connected to their art or diocesan office. That is to say, they're independent schools. They follow a curriculum, but they really run pretty independently. They're not a system in the real true sense of the word. A public school has a solid line back to the main office. A Catholic school has a dotted line. And so the people who began the charter school movement in a couple of different places in Canada, then in the United States, actually patterned themselves after the loosely coupled, to use that term, system in Catholic schools. That is to say charter schools, like Catholic schools and other faith based schools for that matter, are free from most state regulations. Teachers don't have to be certificated, right? They don't have to follow the state curriculum. They do have to follow health and safety rules, for example, that fire alarms work and so on. But the idea is, to use a fancy word that people sometimes look at me, the principle of subsidiarity, to bring decision making down to the lowest possible level. The theory, and like so many things, it looks good on paper, I don't know how effective it always is. The theory is to make sure that parents are involved with educators in setting policy for their children. In reality, it doesn't always play out that way. I often get asked the question in class or when I speak whether I like charter schools, and my answer is I'm ambivalent. I do believe in the idea that parents should have some limited choice in some places. I'm a native of New York City, as I mentioned before we came on here, and as you look around my office, you can see it's a shrine to New York. But the public schools in New York are not particularly effective for a lot of reasons. Not just New York, but a lot of big cities, schools are not effective. So in a system that's failing. And the Supreme Court about 22 years ago had a case from Cleveland, Zellman vs. Simmons Harris, upheld a voucher program on the basis that parents were sending their kids to the voucher schools, which were Catholic, based on parental choice, because the public schools would not cooperate. In that line of thinking, if I'm not wandering too far, charters give parents the option.
- [15:41]
John Brucato
Right.
- [15:42]
Dr. Charles J. Russo
Charter schools differ from regular public schools to the extent that a public school, once it's open, it's there. Charter schools typically operate on three to five year contracts, and they set some very clear goals, such as all children will read at grade level. 75% of kids will read at grade level by year three. If they get close to that or surpass it, the contract gets renewed.
- [16:02]
John Brucato
Right.
- [16:03]
Dr. Charles J. Russo
If they fail to, then it gets shut down. So charters are kind of ephemeral. Some, like public schools are very good. Some like public schools are not very good. The idea for some people is to give parents choice. And that makes sense to me here. Though, back to your question, if I'm not going on too long. The novel aspect of it is adding the Catholic part in. It's one thing if Catholic people chose to organize a charter school, which is almost a redundancy, because they're operating very much like them. The fly in the ointment, for lack of a better descriptor here, is that they're receiving, or they planned to receive full state funding. Right. And again, that's where, even for me, kind of a loud voice in the education law circles in terms of aid and faith based schools. But that's just going a bit too far. I hope that made sense.
- [16:53]
John Brucato
Absolutely. So in that same argument, let's talk about really kind of the legal foothold and like the Supreme Court precedent that this could Be setting in your article and in your, in your paper, you know, you trace the evolution of the Supreme Court establishment clause jurisprudence across three distinct phases. How has the Court's potential, what I'm seeing, shift towards accommodationist view, change the landscape for, for faith based schools. I mean, how are you seeing that kind of evolve?
- [17:19]
Dr. Charles J. Russo
Sure. Good question. How many hours do we have?
- [17:22]
John Brucato
Well, we got about, about 30 minutes left, so whatever you can compare.
- [17:26]
Dr. Charles J. Russo
Understood, understood. Just trying to be funny. As you note, the Supreme Court really passed through three phases. As important as the First Amendment is, and I quote, Congress shall make no law regarding an establishment of religion or prohibiting the free exercise thereof. The Supreme Court did not address those clauses in education for the first time until 1947 in a case from New Jersey, Everson v. Board of Education. In that case, the Supreme Court ruled that the state of New Jersey could provide free transportation for children to attend faith based schools, mostly Roman Catholic. In New Jersey at that time, the idea was that education and transportation are generally available. And if parents choose the opportunity to send their kids to a Catholic or other faith based school, the buses are going to be running, so why not let the kids hop on the bus, Right. When I was a kid growing up in New York City, we got what was called a bus pass, which is about the size of a baseball card, almost always in some psychedelic color. And you just wave it at the toll booth and you get on the subway or bus. And I took the bus for an hour each way to go to high school, living in Brooklyn. The court in that case introduced a metaphor from Thomas Jefferson, the wall of separation of church and state. And it was introduced by Justice Hugo Black. I have a good friend with whom I write a fair amount who's a big fan of Hugo Black. And in writing an article about the so called lemon test that no longer counts, and I'll mention that in a minute, Justice Black brought up Thomas Jefferson's metaphor of creating a high wall of separation of church and state that he actually borrowed. It wasn't his original term, but that's not the point in Everson Black. And the court found that there was no need for a high wall of separation because the children were the ones who benefited from the aid. But in writing this article, I had said to my co author, because I was the lead author, we have to tell the whole story. It turns out that Hugo Black had been as a younger man, a member of the Ku Klux Klan. And in some of his writings he was clearly bigoted against not just Roman Catholics, but African Americans, Jewish people, anybody, I would say, with an IQ higher than room temperature. But he made pretty much an indication that creating that wall of separation in this case was kind of a Trojan horse. They allowed busing here. In 1968, in a case from upstate New York, board of Education vs Allen, the court extended that so called child benefit test to cover textbooks for circular instruction in faith based schools. However, three years later in 1971, in a case nobody understood and very few people mourn, Lemon versus Kurtzman. A case from Pennsylvania or two cases from Pennsylvania and Rhode Island. The Rhode island case was Early v. DeCrescenzo. The court created a three part test, borrowing from some of its earlier cases. The problem with that test was the first two parts came from litigation involving prayer and religious activity in schools. The third part came from a case in New York City about tax benefits for not for profit institutions. And under the Lemon test, the court said in order for aid between a religious institution and the government to pass constitutional muster, it had to meet three parts. Number one, it had to have a secular legislative purpose. Number two, it had to have a principle of primary effect neither advancing nor inhibiting religion. And number three, it could not result in excessive entanglement. Only one case failed the third part of the test. There was a case from Alabama about reciting the Ten Commandments because the person who was supporting that wanted to open the door to prayer in schools. All the bells and whistles went off. The court said no Wall street draftry. But the court usually passed things on the first part of their test. It said, is there a secular legislative purpose in providing busing? Yes. Is there a secular legislative purpose in providing free textbooks? Yes. Does that have a principle of primary effect of advancing religion? And they chose their words carefully. They didn't say no effect, but principle of primary. Giving kids a book, giving kids a bus. I have a student in my class tonight, actually, who will use my textbook. I don't know if you can see on the wall behind me, the second shelf, the right.
- [22:12]
John Brucato
A lot of books there, Charlie.
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Dr. Charles J. Russo
Well, I'll have my name on it, but the one all the way to the left. Well, forget it. The book sells now for about $275. I was wondering if there's a cheaper way of getting it. I don't set the price for the book, I just write it for the publisher. Right, but even that cost is still, in the scheme of things, pretty incidental. So between 1971 and one blip in the early 1990s, Zobra's versus Catalina foothills involving special ed. Basically, if it was not a bus or transportation or it wasn't a book, the Court said no more aid. But in 1997, things changed. Not because the law changed, but because the composition of the Supreme Court changed.
- [22:55]
John Brucato
Okay.
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Dr. Charles J. Russo
We went from a separationist court to an accommodationist court. In talking about the justices, and I'll stop in a minute. People tend to categorize them in different ways. I don't like the term personally liberal and conservative, because on some issues, I would be identified as a liberal. On some issues, I'm identified as a conservative. But because I'm conservative on religion, as people see it. Oh, he's the conservative.
- [23:22]
John Brucato
Sure.
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Dr. Charles J. Russo
I prefer the terms that most academics use. Accommodationist and separationist. Right now have a majority of Supreme Court Justices. Thomas and Alito were by far the two highest in that level. Gorsuch Kavanaugh, Amy Barrett, and John Roberts. Our accommodation is they are willing to provide more aid, perhaps more freedom for religion in public education. The other three justices, Sotomayor, probably the strongest separationist, Kagan, not far behind her, and Ketanji Brown, has not written much yet that every early indication is that she will also be a separationist. They're not willing to go beyond the bus in the book.
- [24:05]
John Brucato
Right.
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Dr. Charles J. Russo
And since 2016, in three cases, the court has expanded those limits pretty significantly. But let me stop here and give you a chance to poke around some more.
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John Brucato
Well, you know, since we're talking legal cases and really exploring the idea of accommodationists, you know, you referenced a case, Trinity Lutheran espinosa and Carson vs. Macon. Can you give me a quick synopsis of what that case is?
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Dr. Charles J. Russo
I sidetracked a little bit.
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John Brucato
No, no, no, that's. No, that's great. Can you, can you. Can you just give our listeners an.
- [24:35]
Dr. Charles J. Russo
Idea of what that case is from again, 1971 to 1997. Really? In 1997, a case from New York, Agostini v. Felton. The court modified the lemon test. In 2016, a case from Missouri, Trinity Lutheran operated a small Lutheran preschool. The school officials applied to participate in a grant. And the words that stick out of my mind from that case, I don't know why. Unforgiving pea gravel. They had that kind of gravel in the playground. And the state was trying to do two things at once. They wanted to get rid of all the awful landfill. You see tires sitting around and all.
- [25:17]
John Brucato
The crumb rubber and all of that.
- [25:19]
Dr. Charles J. Russo
Right. So they came up with a program and they were chopping up rubber, making it into a covering for school playgrounds. And the like. So Trinity Lutheran applied for it, came in something like third in its group, but was denied participation simply because of its religious affiliation. Writing for the court, in a quote from Chief Justice Roberts, he said, quote, it's odious to our Constitution and cannot stand explaining that you can't deny a religious institution or individual aid simply because that person is religious if that aid is generally available.
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John Brucato
That's a state grant though, correct?
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Dr. Charles J. Russo
It was a state grant.
- [26:00]
John Brucato
And is there any legal precedent or was there any legal precedent that any other state grant was awarded to a religious institution?
- [26:08]
Dr. Charles J. Russo
Sure. Back up just a little bit. In 1875, in Ulysses Grant's last State of the Union address, he talked about never allowing aid for sectarian schools. Sectarian at that time was buzzword meaning Roman Catholic. James Blaine, a former congressman, senator, and failed Republican presidential candidate, introduced a constitutional amendment called the Blaine Amendment that would, that would have constitutionalized denying that aid. About 38 states had similar provisions, of which one was Missouri. So state laws put caps on how much aid can be provided. But in Trinity Lutheran, the Supreme Court said those caps are no longer impermissible. Similarly, a couple of years later in Espinosa versus Montana, a number of Christian women, and I say Christian, sometimes people identify as Catholic or just generically Christian, wanted to participate in a tax credit program where you put your money in the bank, save it for tuition, take it out and pay tuition in the school their kids went to. And the Supreme Court of Montana interpreted their constitution as saying, you can't do that. The Supreme Court responded, sorry, the state constitution cannot be any more restrictive than the federal constitution, therefore that must be allowable, right? Finally, a couple of years ago, Carson v. Macon, one of the few states I've not visited is Maine. But Maine, apparently like parts of New Hampshire, Vermont, are very rural and like Kentucky, Oklahoma, I suppose, but because they're rural, some districts do not have their own secondary schools. So they have a tuitioning law that goes back to the mid 19th century that will provide parents with tuition, kind of like a voucher to send their child or children to the secondary schools of their choice. Some years ago, Maine changed its law to exclude allowing parents to use that tuition at a faith based school. This case went to the Supreme Court and this time the Supreme Court again said, sorry, if this is available to everybody, you can't deny them simply because they want to use it at a, at a religious school. Right around the same time as that decision, another major decision, Kennedy vs. Bremerton, involved a football coach in Washington state who, frankly I think was a bit of a hot dog. He would remember that quarterback some years ago. Thibault, Tim Thabeau, Tim Tebow.
- [28:51]
John Brucato
Yeah, yeah.
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Dr. Charles J. Russo
He would kneel on the field after a touchdown or something like that.
- [28:55]
John Brucato
Yeah.
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Dr. Charles J. Russo
This coach would kneel on the field after games and silently pray. The school board non renewed his contract. They didn't fire him per se, they just did not renew his contract. Long story short, he appealed to the Supreme Court and the Supreme Court ruled in his favor, said that they couldn't infringe on his free speech. But the more important part of the case is that the court said, we're throwing the Lemon test out from now on. Going forward, we decide based on history and tradition. I have no idea what that test means.
- [29:28]
John Brucato
Wow, that seems very subjective.
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Dr. Charles J. Russo
Oh, absolutely. But the Lemon test became very subjective. Excessive entanglement was in the eye of the beholder. Two days from now, at about this time, I'll be picking up my law school final on law and education. And a big part of it is law and religion. I'm teaching that as a separate course in the fall. But two of the kids in my class asked, sent me emails asking about Lemon. One of the other faculty members over there. And this is not a criticism of the guy. I didn't hear the whole quote and I haven't had a chance to talk with him. He said, lemon is not dead. Well, some years ago, a friend of mine who used to be the general counsel of National School Boards wrote an article with a kind of cute title talking about squeezing the juice out of the lemon. I think the court has finally squeezed the juice out of that lemon now, but it remains to be seen what's going to be coming. So it's opening up the door to more aid. The question is, how far can it go?
- [30:23]
John Brucato
Well, that's going to be kind of my follow up. Do you think an accommodationist ruling like Carson v. Macon is setting some legal groundwork for something like the Catholic virtual charter school? I mean, do you think there are correlations?
- [30:35]
Dr. Charles J. Russo
Good question. Again, I think so. And as I mentioned earlier, I had an article in the conversation last week. The court heard oral arguments on Wednesday the 30th. Working with my editor, I finished the article and it came out Thursday. But the upshot of it is Chief Justice Roberts, who wrote those previous three opinions defending religious liberty, raised a question, wondering whether this is not going a little bit further than others. So I'm not sure about him, but he and the other accommodationists that I mentioned, Alito, Thomas Gorsuch and Kavanaugh all appear to be defenders of Saint Isidore. A wild card in the mix is that Amy Coney Barrett, who normally would side with the accommodationist position, recused herself. She did not give a reason, but it seems to be that she is friendly with one of the attorneys who worked helping set up the charter school. And to avoid a conflict of interest, we only had eight justices hearing the case. So right now it's either going to be five to three or four to four. I don't bet. I don't bet on anything. Long story short, when I was in college, I bet on the Super Bowl. I won, but I was so nervous. But if I bet, I think they're going to uphold Sin Isadore. But again, I'm not sure that's such a good thing because it opens the door to questions about aid personnel and the like that I think you have on the list. So let me stop there and see if you want to poke around a bit more.
- [32:05]
John Brucato
Well, I want to kind of now narrow our focus into into the state's decision. Oklahoma Supreme Court ultimately struck down the creation of Saint Isidore. Can you talk me through what legal arguments they used and how they they weigh state constitutional limits versus the federal protections? You talked about the state and federal, but I'm really curious what Oklahoma Supreme Court did to strike that down.
- [32:27]
Dr. Charles J. Russo
There is a Blaine type amendment in the state constitution which says you can't provide aid through your schools. However, I hope that's sufficient. However, given the last three Supreme Court decisions, I'm not sure that's going to stand.
- [32:42]
John Brucato
Sure.
- [32:45]
Dr. Charles J. Russo
Again, my concern is it's kind of like there's the metaphor. You may have heard the camel gets its nose in the tent. Once the nose is there, the rest are sure to follow. Who's going to be able to control hiring, who's going to control what's being taught and the like.
- [32:57]
John Brucato
Right.
- [32:58]
Dr. Charles J. Russo
And Catholic and other faith based and Other non denominational K12 schools based on a case Pierce vs Society of Sisters 100 years ago, 1925 recognized the right of these schools to organize and operate independent of state control. And I'm afraid that if this does get upheld, it opens the door to more state control over curriculum, over hiring and things of that sort of.
- [33:25]
John Brucato
Well, you mentioned the article that, you know, quote, control follows the dollar. How do you think this dynamic would impact religious institutions trying to maintain their own identity if they're willing to accept public funds? Because there's a lot of rules and regulations, as you're well aware of when it comes to public education, especially around.
- [33:42]
Dr. Charles J. Russo
The money, sure, depending on the state, I think it's going to have a tremendous impact on how effectively they can operate. I mean, most people I know in faith based schools don't want the federal money, don't want the state money, because they want to be free to do it their own way. And it's not a matter of wanting to discriminate. One of the things I mentioned in one of the articles that critics have seen is it'll raise the question of special education. And I describe that argument as something of a red herring. That is to say I'm an advocate of special ed. This 750 will buy a cup of Starbucks. And I've got written four or five books with a friend on special ed law. So I think I know it reasonably well. But the idea places limits to Individuals with Disabilities Education act places limits on how much funding public school boards must provide to faith based schools. And that's fine. But the critics of this school said, well, they're not going to be able to get special ed because it's a Catholic school. I think that's a red herring argument only because if they are in fact truly public charter schools, then they should receive the same full funding.
- [34:52]
John Brucato
But do you feel that on the other side of the coin, the religious institutions may not want to take this next step because if they're now sacrificing their freedoms in which they're not being subject to the same oversight as a traditional public school, is this, to your point, a bridge too far for them now? Are they careful what you wish for?
- [35:11]
Dr. Charles J. Russo
My good line, My sense is that for most people, yes, it is. I think in unique situations, maybe a rural state where you don't have access, but in a place like New York or even here, Ohio, I don't think they want the direct money. I think they want to maintain their independence.
- [35:27]
John Brucato
Right.
- [35:28]
Dr. Charles J. Russo
As you say, it's a mixed blessing. You get some more money to operate. For example, Ohio has a promise program that provides aid for, for a lot of kids from low income families. But most of the kids coming in are not from Catholic families. And how do you maintain a Catholic ethos if kids don't buy into the values and they're not just Catholic, it could be other kinds of faith based schools. One of the purposes of faith based elementary and secondary schools is to raise good little Catholic, Jewish and Muslim boys and girls. Sure, Christian kids. If kids are coming in without that background, does it then simply become a non public school with a minimal religious affiliation?
- [36:13]
John Brucato
Right.
- [36:14]
Dr. Charles J. Russo
And I think that's not what most parents are looking for when they're paying tuition to send their kids to a school.
- [36:20]
John Brucato
We talked a little bit about the impact on students. You had mentioned IDEA and special education funding. What about employees? Kind of dissect employee rights, maybe under Title VII and unionization. What kind of unresolved conflicts do you see on the horizon for that?
- [36:38]
Dr. Charles J. Russo
There are conflicts, that's for sure. John. I've written a couple of columns, one or two for asba, one for some others. Under Title VII of the Civil Rights act of 1964, which provides broad based protection against employment discrimination, there's a provision called the ministerial exception. If somebody works in a faith based institution, could be a hospital, could be a school, and their position is ministerial or perceived as something as promoting the teaching of that particular faith, then employers have the opportunity on the right. And the Supreme Court has upheld the Sultan ministerial exception on three occasions to decide who stays hired there. So there's been litigation over a variety of issues. People, whether people are divorced and or remarried, whether they can continue to work in Catholic schools and others. But the litigation I followed is Catholic. Also, other people who are LGBT+ can be employed.
- [37:43]
John Brucato
Right.
- [37:43]
Dr. Charles J. Russo
If. If you live a lifestyle that outwardly is inconsistent with Catholic Church teachings. Again, that could be being divorced and not remarried in the church. Or. There's one case that I'm aware of, I've got it cited in an article someplace. And I worked with a guy like this back in the 1980s. He would come into the faculty room on a Monday morning and regale everybody with his amorous adventures. It's frankly, I don't care, you know? But there's one case where a guy talked about his extramarital affairs and the Catholic school fired him and the courts upheld it.
- [38:20]
John Brucato
Wow.
- [38:21]
Dr. Charles J. Russo
It said you're not expected to be an altar boy, but if you're violating church teachings and the students and all know about it, most Catholic schools now have a requirement that you adhere to something called the Catechism of the Catholic Church, which lays out the Roman Catholic Church's teachings. And so it's not even a matter, it seems to me, a morality. It's a matter of contract. There's a case from Louisiana, I don't remember the name of it. I have a footnote at the beginning of the chapter of my chapter on contracts in my big school law book. A young woman was a teacher at a Christian school in Louisiana, signed a contract that said she will not drink alcohol. I used to play ice hockey with A guy who taught around here at a Christian college and they had that same language in their contract. Unfortunately, my friend passed away of a heart attack a few years ago and I hurt my neck so I can't play hockey anymore. But they had a clause in the contract at Cedarville which said if you drink alcohol, you violate your contract. Well, this woman signed her contract, went down the street, toasted, tossed back a couple of cold ones with her friends, schools found out about it and they terminated a contract.
- [39:28]
John Brucato
Short lived.
- [39:28]
Dr. Charles J. Russo
You have the right, you have the right to drink beer. But if you sign a contract saying you're not going to, when you do it, everybody sees you, you violated your contract. So right. There will be some conflict over those, those kinds of items. But if people read their contracts when they sign, it might obviate some of the, some of the issues. But those issues will arise certainly.
- [39:49]
John Brucato
So you mentioned the Supreme Court's ruling is as is on the near horizon. So let's, let's speculate that if the Supreme Court does rule in favor of Saint Isidore, how far reaching could those implications be in other states? Do you think this could accelerate efforts to create faith based charter schools in, in networks and other states? I mean, what, what do you really, what, what potentially do you see happening? If this is a good question, let.
- [40:12]
Dr. Charles J. Russo
Me just say as a lead in. Although Roberts wrote the first three decisions opening up this new era of accommodation, I think he's going to be the wild card. It is said. I mean, I've read a lot of places that Roberts is worried about the reputation of the court he seeks. He sees consensus, not wanting a lot of division. So if he goes along with St. Isidore, it wins. If he chooses not to, then it loses. And right now I'd say Robert's position is a toss up based on some of the things he said in oral arguments. But to speculate if in fact he joins the other three and they uphold or the four rather, three rather, because it's only eight people, Barrett's not involved, then it'll open up the door in many places to create such schools. But I'm not sure every place is going to want to do that.
- [41:05]
John Brucato
Sure.
- [41:05]
Dr. Charles J. Russo
As I say, as we talked before, in a place like New York, New Jersey, Massachusetts, Illinois, where it's pretty densely populated and there's pretty good numbers of not just Catholic but other faith based schools, then I'm not sure organizers of faith based schools would want this to happen. I had a very good friend, lost him, passed away. He was 85 not that that justifies it, but he'd been a superintendent of schools for the Seventh Day Adventists. And from my friend Jerry, God rest him, he made it clear that the Adventist schools didn't want to dine from the government. They want to be able to be their own thing. And I mentioned the Adventists because they're in the top 10 of the number of faith based schools in the country. I never realized how large they were. So I think it would open the door to all kinds of changes and I'm not sure that change would be. There'd be a mad rush to make that happen right away.
- [41:57]
John Brucato
Understood. So as we wind down here, what should school business officials really be paying attention to as this case develops? Especially with managing budgets, facilities, legal compliance? What are those focal points for SBOs?
- [42:09]
Dr. Charles J. Russo
Good questions. I think the important thing for SBOs is to keep an eye on what it's going to do to their budgets. I understand and agree with all SBOs and public educators to guard your money zealously and to make sure you spend could have an impact, but it's going to depend from community to community. Sure, it's just like the special ed law. Schools are not obligated to provide any more than the district average on special ed. Nothing prevents schools from providing greater aid. So I think in school districts where relationships between school business officials, their boards and the other leaders are healthy, with faith based schools, there's probably going to be less inclination to want to create a charter school. And I'm not suggesting that in any way, shape or form as saying to sell out or simply give in. But I have a good friend with them. I've written these books on special ed. We did one on special ed and faith based schools. And my friend Alan wrote in the introduction, he was a career public school educator and he said he cares about all kids. But as a public school educator, his obligation is, and I respect it, is to look after the kids in his system first.
- [43:20]
John Brucato
Right.
- [43:20]
Dr. Charles J. Russo
He cared about other kids. So I think SBOs have that primary obligation. But as educators and parents, many also care about the well being of children. So I think they want to work with other schools. So while it could have a potentially far reaching effect to the extent that they continue to work collaboratively with faith based schools in their communities on programs like special ed, gifted and talented and the like, hopefully it won't have that big of an impact and I think probably less so in the more popular states, maybe a little bit greater in the more rural states where parents can't access these schools. Does it make sense or.
- [44:00]
John Brucato
Absolutely. Absolutely. There's a lot of implication for school business officials and many different things to keep our eyes on. Not just the money, but I mean, the legal compliance and unions. I mean, you name it. You've gone through a lot of in this conversation. But I appreciate you taking time to speak.
- [44:16]
Dr. Charles J. Russo
Thank you. I mean, having me.
- [44:17]
John Brucato
Yeah, yeah.
- [44:18]
Dr. Charles J. Russo
Happy to come back in after they rule. As you may know, there's a couple of other cases going on right now that are going to be pot boilers, too. So.
- [44:25]
John Brucato
Well, I was just going to say I would love to have you back on to maybe debrief once the Supreme Court makes their ruling. And if there's other relevant cases, we can, we can talk about those too because there's always something going on that affects school business officials.
- [44:38]
Dr. Charles J. Russo
Charlie, the end of June, we're taking our two older granddaughters to Italy, but otherwise we'll be around.
- [44:44]
John Brucato
Well, we'll bother you on your vacation.
- [44:47]
Dr. Charles J. Russo
Our older granddaughter came with us last summer, this one. But this year we'll take the 7 to 10 year old. We're trying to give these kids a gift of travel. They've gotten around more than most adults we know.
- [44:55]
John Brucato
That's great. Well, Charlie, thank you again for your time.
- [44:57]
Dr. Charles J. Russo
Well, John, my pleasure. Thanks very much. Appreciate it. Nice chatting with you.
- [45:01]
John Brucato
Thank you for tuning in to School Business insider. Make sure to check back each week your favorite topics on school business.